Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

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Jury selection will be the most important part of the Michael Dunn retrial

September 16, 2014

Tuesday, September 16, 2014

Good afternoon:

Jury selection will be the most important part of the Michael Dunn retrial, which is scheduled to start next Monday. To have any chance to convict Michael Dunn of murdering Jordan Davis, the prosecution must screen for, identify and exclude any prospective juror who believes that it’s reasonable to assume that:

(1) a black 16 to 21-year-old male who likes to listen to loud rap music is an angry thug;

(2) a black 16 to 21-year-old male who lips off at an adult white male who orders him to turn down the volume is an angry thug;

(3) a black 16 to 21-year-old male who cranks up the volume after being ordered to turn it down is an angry thug;

(4) it’s reasonable for an adult white male to assume that an angry black thug who confronts him is armed and intends to kill or seriously hurt him; and

(5) it’s reasonably necessary for an adult white male to use deadly force in self-defense to prevent an angry black thug from killing or seriously injuring him.

The best way to determine if any prospective jurors hold these views is to ask them a series of hypothetical questions to discover if they fear black 16 to 21-year-old males.

For example, if you were walking down a sidewalk by yourself and saw a black 16 to 21-year-old male walking toward you, would you,

(a) continue walking toward him and ignore him;

(b) continue walking toward him and greet him;

(c) cross the street and walk down the other side; or

(d) turn around and walk the other way?

The use of hypothetical questions is the best way to uncover racial prejudice.

Can you think of any other hypothetical questions that you might ask during voir dire?

Finally, if you were a prosecutor, would you rather try this case to a judge according to the procedure followed in South Africa?

Would your answer change, if you were defense counsel?

The most important disputed questions of fact in the case are whether Jordan Davis was armed or had something that looked like a weapon in his hands, and if he was attempting to get out of the back seat of the SUV when Dunn squeezed off multiple shots at him.

FYI: Judge Healey denied a defense motion for a change of venue, preferring to take a wait-and-see approach to see if the extensive publicity about the shooting and the first trial has made it impossible to seat a twelve-person jury that can fairly and impartially decide the case (i.e., jurors have already formed an opinion about what the outcome should be). Once chosen, the jury will be sequestered.

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Racists should be banned from jury service

June 13, 2014

Friday, June 13, 2014

Good afternoon:

Xena posted a comment to my post about Theodore Wafer advising that his hearing has been continued to next Friday, June 20th.

She also said,

Did you read the part where the defense wants to argue that Renisha mistook Wafer’s house for a drug dealer’s house? The defense’s argument is that someone who lived close to Renisha was arrested for marijuana after Renisha was killed.

This presents an interesting new wrinkle to putting a victim on trial for a homicide, so let’s break it down, take a look and estimate the probability that it will be successful.

Let’s begin by assuming for the sake of argument that,

(1) someone who lived near Wafer’s house sold marijuana,

(2) McBride had previously purchased marijuana from that person at that address, and

(3) she mistakenly believed she was knocking on that person’s front door when she knocked on Wafer’s front door.

I don’t believe that set of assumed facts, which Wafer did not know at the time of the shooting, helps his claim of self-defense because, regardless of her intent, he had to be in fear of suffering imminent death or grievous bodily harm and his belief had to be reasonable. That is, a reasonable person in the same situation also would have believed that he was in imminent danger of suffering death or grievous bodily injury.

The racist right wing hate machine skips over the word reasonable because its members devoutly believe that their opinions are reasonable.

They fail to understand that the word reasonable in a legal context means evidence-based, as opposed to opinion-based. Racial prejudice is by definition opinion-based, rather than evidence-based. Therefore, it is unreasonable and no verdict should ever be based on it.

Prospective jurors who are unaware of their racial prejudice, or who deny being prejudiced when they know damn well they are prejudiced, should never sit on a jury when a person of color is the defendant or a victim allegedly injured or killed by a white defendant.

Even if McBride had a gun and intended to kill Wafer, and there is no evidence that she did, nothing about the situation he was in would likely have caused a reasonable person to believe he was in imminent danger behind the two locked doors. Seems to me that opening the door demonstrates unequivocally that he did not fear death or grievous bodily injury.

That act is an evidence-based expression of his state of mind when he opened the door and it defeats his claim of self-defense.

The castle doctrine does not help Wafer because she did not attempt to break in or enter his house. She was unarmed and outside his house knocking on the door. He was inside his house in a safe location on the other side of two locked doors while armed with a loaded shotgun and he had a cell phone with which to call 911.

He cannot create a necessity to act in self-defense by opening the door.

We might have a different situation if he were living next to a drug house with all sorts of people coming and going at all hours of the day and night occasionally mistaking his house for the drug house, but even then he would have to have an objectively reasonable basis to believe his life was in danger, as opposed to being pissed off that someone was knocking on his door disturbing his sleep in the middle of the night.

As a matter of law, therefore, I believe the answer is easy. The evidence that the defense seeks to introduce is irrelevant and inadmissible.

Just as O’Mara and West did in the Zimmerman trial, the defense is attacking the victim’s character in an effort to say she deserved to die.

However, as much as right-wing racists want to believe that they have a right to kill any person who is young, black, drunk and/or stoned (e.g., George Zimmerman), especially if that person is listening to loud music and is disrespectful (e.g., Michael Dunn), the law recognizes no such right or privilege.

Finally, do not forget that Wafer did not initially claim self-defense. He told the police that his gun went off by accident.

Look for the defense to do everything it can to keep him off the stand at trial, so he does not have to explain to the jury which story was a lie and why he lied instead of telling the truth.

Trial lawyers love it when they get to ask, “Were you lying then or are you lying now?”

For all of these reasons, I believe the evidence the defense wants to introduce is irrelevant and inadmissible. I also believe a jury will convict him of murder, provided the prosecution identifies and eliminates all potential stealth jurors who would willingly substitute their racially prejudiced opinions about black teenagers for actual evidence.

We have seen jurors do that in two Florida trials.

The question is whether the prosecution will permit that to happen in Detroit.

Wafer’s trial is scheduled to start in five weeks, probably not long after Judge Thokozile announces her decision in the Oscar Pistorius case.

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Thank you,

Fred


Court denies Dunn’s request to delay trial in Jordan Davis murder case

January 22, 2014

Wednesday, January 22, 2014

Good morning:

Judge Russell Healey yesterday denied the defense motion to continue the trial date in the Michael Dunn case. The trial will commence on Monday, February 3rd.

Judge Healey next considered the media’s motions to release discovery to the public. By media, I refer to The Florida Times-Union, First Coast News and WJXT TV-4 (AKA: the intervenors). They previously petitioned to intervene on behalf of the public seeking the release of discovery that Judge Healey improperly withheld in violation of the Sunshine Law. They obtained an order from the 1st District Court of Appeal last Friday directing Judge Healey to release the evidence no later than this Friday, unless he determines at an evidentiary hearing to be held held no later than today that some of the withheld discovery, such as names, addresses and telephone numbers of witnesses should be blacked out.

Judge Healey waded into those waters at yesterday’s hearing with both prosecution and defense lamenting the appellate court’s order. Their major complaint was that the release of the discovery this close to trial may prejudice the defense and make it impossible to select a fair and impartial jury.

Of course, if the discovery had been released to the public when it was released to the defense, as required by the Sunshine Law, the late-publication problem would have been avoided.

The primary concern of the prosecution and defense is Dunn’s 740 phone calls from the jail. The Florida Times-Union at Jacksonville.com has the story:

But Corey said the media would still have to pay for the staff time it would take to produce the phone calls. Lawyers for the State Attorney’s Office have said it would take 180 hours of staff time to review the phone calls before they could be released to the public, and the media would have to pay over $6,000 for the staff time it would take to do that.
George Gabel, an attorney representing the Times-Union and First Coast News, said the media shouldn’t have to pay for the calls because the State Attorney’s Office has already reviewed them.

Corey acknowledged that they’d been reviewed, but said her staff had been looking at using them during the criminal trial, and had not reviewed them for release to the public.

Assistant State Attorney Lisa DiFranza said the office would have to review the phone calls again to redact anything that could be seen as a confession on Dunn’s part, and would also have to take any social security numbers or bank numbers that might come up during those calls because public records law prohibit those things from being released to the public.
Prosecutors estimated there were about 740 phone calls made by Dunn since he was in prison. Corey said about 10 of those calls are being looked at by her office to use against Dunn during his criminal trial.

Corey did not volunteer what was said in those phone calls.

Judge Healey said he would issue an order later.

Given the appellate court’s order, I believe Judge Healey has no choice. He has to order the release of the recordings by Friday at the close of business, so Angela Corey better git ‘er done.

I don’t know about you, but I am looking forward to reading transcripts of those calls.


Florida Court of Appeal again orders trial judge to release evidence to public in Michael Dunn case

January 18, 2014

Saturday, January 18, 2014

Good morning:

Storm clouds brewing in the Michael Dunn case.

Yesterday, the 1st District Court of Appeal in Florida ordered Judge Russell Healey to comply with its earlier order to release discovery to the public and to hold a hearing no later than Wednesday of next week to do it.

On December 19th, I wrote about the earlier order.

Florida’s 1st District Court of Appeal in Tallahassee reversed Judge Russell Healey’s order that prohibited the release of evidence to the public for a period of 30 days after the prosecution discloses it to the defense. The Court held that Judge Healey’s order violated Florida’s Sunshine Law that requires the prosecution to immediately release the evidence to the public after it releases it to the defense.

Judge Healey issued the order after he experienced a Yikes! moment while watching a local television news report about racist letters that Dunn had written in jail.

I wrote about the letters on October 27th in Let’s play the who-said-this game.

Judge Healey was concerned about the possible impact the letters might have on jury selection and Dunn’s right to a fair and impartial jury. He decided to impose the 30-day delay to give him an opportunity to preview the discovery and decide whether to release it.

/snip/

Judge Healey’s dilemma was how can we seat a fair and impartial jury now that everyone knows that Michael Dunn, a middle aged white guy, is an unrepentant racist who dares “to not be a victim” of four unarmed black teenagers sitting in a parked SUV with the music turned up. That he’s predisposed to “kill these (expletive) idiots” would appear to lessen the prosecution’s burden to prove premeditation to convict Dunn of murder one or to prove Dunn acted with a depraved mind indifferent to human life to convict him of murder two.

Hence, the Yikes moment.

However, as I also mentioned,

The problem is the jury will get to see them since the letters are relevant and admissible pursuant to Evidence Rule 404(b) to prove Dunn’s intent when he pulled the trigger and that he did not shoot due to a mistake he made about the situation or accidentally shoot at the teenagers. The letters also are admissible under Evidence Rule 801(d)(2) as admissions by a party opponent.

Therefore, there was no good reason for Judge Healey to have created an exception to the Sunshine Law, which requires the simultaneous release of the discovery to the public when it is released to the defense. Expressed another way, the proper publication of the letters pursuant to the law could not serve as a justification to create a new 30-day-review rule.

The news media appealed Judge Healey’s order creating the new exception to the law and the appellate court said, Nyet! Thou shalt follow the law.

Nothing happened, however, so the news media returned to the appellate court and asked it to spank the naughty judge, which it did.

The Florida attorney general’s office, which represents Angela Corey’s office on appeals, has asked to continue the hearing to Friday.

Meanwhile, Dunn’s attorney, Cory Strolla, wants a continuance. He claims he needs more time to get ready for trial. Angela Corey objects to the continuance.

I doubt Judge Healey will grant the continuance because the defense has had more than one year to get ready and it has waited too long to ask for more time. The trial, which is scheduled to start two weeks from Monday, will be a big event. The Florida Times-Union @ Jacksonville.com explains:

The delays mean further burdens on others awaiting some resolution.

Lucia McBath, who lives near Atlanta and is the mother of Jordan Davis, has rented a house in Jacksonville for all of February in anticipation of the trial. Attorney John Phillips, who represents McBath and Jordan’s father, Ron Davis, said they would have no comment on Friday’s events.

Police and media also are well into preparations for a trial that is expected to attract nationwide attention. An area near the courthouse will be set up as a media city, and police will be issuing daily credentials to attend. Courthouse personnel have said they will restrict where the media can conduct interviews.

Dunn will be the first high-profile trial at the new Duval County Courthouse. Unless plea deals are made, he will quickly be followed by Marissa Alexander and Donald James Smith, both also expected to generate national attention.

We certainly will be paying attention.

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This is our 857th post in 26 months. We had 422 visitors yesterday and zero donations.

Fred


Jordan Davis’s parents settle lawsuit against Michael Dunn

January 4, 2014

Saturday, January 4, 2014

Good afternoon:

Jordan Davis’s parents have settled their wrongful death lawsuit against Michael Dunn.

First Coast News is reporting,

John Phillips, the Davis’s attorney, confirmed the case had been settled but declined to disclose any further details. Phillips did say his clients made a proposal to settle monetarily and that an agreement had been reached.

Court records reviewed by First Coast News showed the settlement was reached Dec. 30.

Another civil suit filed on behalf of the other teenagers with Davis that night has also been settled, said Phillips.

Michael Dunn’s trial is scheduled to start on February 3, 2014.


Appellate court reverses trial judge in Jordan Davis case

December 19, 2013

Thursday, December 19, 2013

Good afternoon:

I have an important development to report in the Michael Dunn case. As most of you know, he is charged with shooting Jordan Davis, 17, to death in the parking lot outside a convenience store in Jacksonville following an argument over loud music.

Florida’s 1st District Court of Appeal in Tallahassee reversed Judge Russell Healey’s order that prohibited the release of evidence to the public for a period of 30 days after the prosecution discloses it to the defense. The Court held that Judge Healey’s order violated Florida’s Sunshine Law that requires the prosecution to immediately release the evidence to the public after it releases it to the defense.

Judge Healey issued the order after he experienced a Yikes! moment while watching a local television news report about racist letters that Dunn had written in jail.

I wrote about the letters on October 27th in Let’s play the who-said-this game.

Judge Healey was concerned about the possible impact the letters might have on jury selection and Dunn’s right to a fair and impartial jury. He decided to impose the 30-day delay to give him an opportunity to preview the discovery and decide whether to release it.

Here’s a sample of what he was concerned about.

Sample 1:

The jail is full of blacks and they all act like thugs. This may sound a bit radical but if more people would arm themselves and kill these (expletive) idiots, when they’re threatening you, eventually they may take the hint and change their behavior.

Sample 2:

I’m really not prejudiced against race, but I have no use for certain cultures. This gangster-rap, ghetto talking thug ‘culture’ that certain segments of society flock to is intolerable. They espouse violence and disrespect towards women. The black community here in [deleted] is in an uproar against me — the three other thugs that were in the car are telling stories to cover up their true ‘colors.’

Sample 3:

I am amazed at what is going on with the way the media has been covering this case. Their have been several other shootings here in [deleted], yet they are all either black-on-black or black-on-white, and none of them have garnered any attention from the media. I guess it’s news when someone dares to not to be a victim, but they are twisting it around sand saying I was the ‘bad guy.’

Y’all get the idea.

Judge Healey’s dilemma was how can we seat a fair and impartial jury now that everyone knows that Michael Dunn, a middle aged white guy, is an unrepentant racist who dares “to not be a victim” of four unarmed black teenagers sitting in a parked SUV with the music turned up. That he’s predisposed to “kill these (expletive) idiots” would appear to lessen the prosecution’s burden to prove premeditation to convict Dunn of murder one or to prove Dunn acted with a depraved mind indifferent to human life to convict him of murder two.

Hence, the Yikes moment.

The problem is the jury will get to see them since the letters are relevant and admissible pursuant to Evidence Rule 404(b) to prove Dunn’s intent when he pulled the trigger and that he did not shoot due to a mistake he made about the situation or accidentally shoot at the teenagers. The letters also are admissible under Evidence Rule 801(d)(2) as admissions by a party opponent.

Also, recall that prosecution and defense agreed to withhold certain evidence from the public, such as witness names and phone logs subject to an earlier order entered by Judge Lester, pursuant to exceptions in the Sunshine Law.

The Florida Times Union at Jacksonville.com reported:

But the decision drew objections from The Florida Times-Union, First Coast News and WJXT TV-4, who appealed Healey’s ruling after the judge refused to rescind it.

The prosecution and defense will still have the right to ask Healey to issue a protective order that would keep specific discovery from the public. If that happens, an evidentiary hearing must be held to determine if the information should be protected, the appeals court said.

Attorney George Gabel, who represents the Times-Union and First Coast News, said that’s the way it should be.

“It’s a procedure that’s fair to the defendant and is also fair to the public,” he said.

The irony is that the letters may actually have the reverse effect because many white people in Florida, who fiercely deny they are racist, agree with everything Dunn said. They say blacks are the real racists because they have the temerity to complain about being ordered to sit in the back of the bus. They believe that any black male teenager ipso facto is a thug who should be killed to prevent him from becoming an even worse thug.

Oh, and that God-awful rap music. Lordie! Hide the women and the children.

Like the Zimmerman trial that resulted in an unjust acquittal, excluding people from the jury who share Dunn’s loud and proud racist beliefs is key to getting a fair and impartial trial and a just result.

The four teenage boys were unarmed and minding their own business listening to amped-up music when Dunn pulled in and parked next to them on the passenger side of the SUV. When Davis disobeyed Dunn’s order to turn it down, Dunn pulled out his pistola and started shooting and continued shooting as the driver backed out in a panic and sped away. He even got out of his car and fired at the back end of the fleeing vehicle.

Two of the bullets struck and killed Davis, who was sitting in the back seat on the passenger side just a few feet away from Dunn. Fortunately, no one else was injured.

Dunn claims he saw a gun and fired in self-defense.

The driver stopped the SUV a short distance away from the convenience store in a nearby parking lot to check on Davis, who was already unconscious.

The police arrived within minutes. The three teenagers denied having a weapon. Police searched them, the vehicle and the area but did not find a weapon.

Jury selection is scheduled to start February 3rd.

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This is our 809th post in a little over two years. If everyone who has not contributed a donation, were to donate $5, we could end this fund drive today.

Fred


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