Dunn verdict watch and a discussion of circumstantial evidence

October 1, 2014

Wednesday, October 1, 2014

Good morning:

Judge Healey has completed reading the jury instructions to the jury in the Michael Dunn retrial and the jury deliberations are underway in the jury room.

As we wait for them to reach a verdict, I recommend readers watch John Guy’s excellent rebuttal argument. For example, he absolutely destroys Michael Knox, the defense forensic expert and dismisses him stating, “That’s what you get for $350 per hour.

While you are listening to him, notice that he uses circumstantial evidence to construct a powerful argument that Dunn lied. For comparison purposes, recall that Judge Masipa in the Pistorius case regarded circumstantial evidence as not very reliable or persuasive.

I think it’s appropriate to instruct juries that evidence may be either direct or circumstantial. One is not necessarily more accurate or reliable than the other and it’s up to the jury to decide how much weight to assign to the evidence admitted in the case.

The instructions direct the jurors to consider first degree murder first and not to consider lesser included offenses like second degree murder or manslaughter unless they cannot unanimously agree on a verdict to first degree murder.

First degree requires proof of premeditation. Premeditation requires proof that the defendant specifically intended to kill Jordan Davis; that he reflected on his decision to kill; and that decided to go ahead and do it.

Premeditation (i.e., specific intent to kill, reflection and affirmation) does not require anything more than a moment in time.

What do you think of John Guy’s rebuttal argument?

Do you believe circumstantial evidence is inherently less accurate and reliable than direct evidence?

Do you believe Michael Dunn acted with premeditation?

Do you believe he acted in self-defense?

What did you think of Michael Knox?


Michael Dunn trial date continued

April 23, 2014

Wednesday, April 23, 2014

Good afternoon:

News4Jax is reporting that Michael Dunn’s trial date has been continued at the request of his public defender, Waffa Hanania. The court will set a new trial date at a hearing on June 9th.

Ms. Hanania has to watch the trial and review thousands of pages of police reports, forensic reports, autopsy reports, witness statements to police, witness depositions, trial transcripts, and defense investigation reports to review before she can realistically determine what else she must do to prepare for trial and how long it will take her to do it. In addition, she has other cases to handle and some of them will have scheduled trial dates.

I think Judge Healey will set a new trial date in the late fall or early next year. There is no reason to hurry because Dunn isn’t going anywhere. He will remain in the county jail until his case is resolved.

The judge has already ruled that the sentencing for the three attempted murder convictions will have to wait until the murder charge is resolved.

Whether he is found guilty or not guilty, a sentencing will follow, probably about 30 days after verdict.

If the new jury cannot agree on a verdict and a mistrial is declared, Angela Corey will have to again decide whether to retry him.

There is no limit to the number of times she can retry him on the murder charge, if each jury cannot reach a unanimous verdict. The Double Jeopardy Clause does not prevent a retrial because no verdict has been reached.

I doubt she will try the case a third time, if the second jury hangs.

As I’ve said many times beginning with the Zimmerman case, jury selection is the most important part of these ridiculous white-man-shoots-unarmed-black-kid self-defense trial.

If Corey and her team do not weed out the racists, they ain’t going to win.

They also need to take another run at persuading Judge Healey to allow them to introduce Dunn’s racist letters, phone calls, and graffiti on his cell wall to show why he he shot at the kids. Authentication of the graffiti might pose a problem, but it should not be difficult to find someone to identify it as his.

I believe the evidence is admissible to prove motive under Rule 404(b). Motive is relevant and admissible because he is charged with premeditated murder and he claims self-defense. Indeed, his state of mind is the primary issue in the case.

And, if he dares to open the door again by placing his character in issue, Corey better be prepared to back the garbage truck up to the courthouse door and dump all of the stinky stuff the former neighbor knows about him on the courtroom floor.

If you appreciate what we do and have not already made a donation, please do so today.

Fred


Dunn: Jury hung 9-3 to convict on Jordan Davis murder charge

February 19, 2014


(H/T to Two Sides to a Story for providing the link)

Wednesday, February 19, 2014.

Good morning:

The jury hung 9-3 to convict Michael Dunn of murdering Jordan Davis. The three holdouts bought his self-defense claim.

The jury convicted Dunn of three counts of attempted second degree murder and one count of shooting into a vehicle based on the 4 shots that Dunn fired at the fleeing Durango. The three holdouts believed he “crossed the line” and was no longer shooting in self-defense when he fired those shots.

The 3 holdouts for self-defense probably provide a sufficient excuse for Angela Corey to decide not to retry Dunn for the Jordan Davis murder.

The inability of this jury to convict Dunn serves as a stark reminder that white guys can get away with killing unarmed black male teenagers in Florida by fleeing the scene, ordering a pizza, waiting to see if the police arrest them, and simply tell them that they thought they saw a gun and felt threatened.

The Zimmerman and Dunn cases stand for the proposition that it’s OK to murder unarmed black teenagers and lie about it.

Just don’t miss or you will spend the rest of your life in prison.


What’s next for Michael Dunn

February 18, 2014

Tuesday, February 18, 2014

Good morning:

Crane and I thank everyone who has responded to our financial plight with a donation. Some of you have made multiple donations and we are very grateful.

Because it takes several days for Paypal to transfer money into our bank account, we are expecting to be without electricity for several days, possibly starting later today. Fortunately, the weather is warming up into the high 50s today and for the rest of this week, so we are not in any danger of freezing.

We will not have internet access when the power is shut off, but we can motor to the nearest McDonald’s and use their WiFi connection to periodically post and comment. We should be able to get through this without too much interruption or inconvenience.

Now to today’s post.

Angela Corey has to decide whether she is going to retry Michael Dunn for killing Jordan Davis. She said she would, but prosecutors almost always say they will do that, only to later change their minds and attempt to resolve the charge by entering into a plea agreement with the defendant in exchange for reducing the charge. If she decides to go this route and Dunn refuses to plead guilty to anything, which is what I expect he will do since he is already looking at a minimum 60-year sentence on the three attempted second degree murder charges, she will have to either retry him on the murder charge or dismiss it and proceed to sentencing.

I believe it’s pretty clear that the jury was unable to reach a verdict on the murder charge because one or more jurors concluded that Dunn shot Jordan Davis in self-defense. I doubt a majority of the jury believed that, but this is Florida, the Gunshine State, where many white people apparently believe all black male teenagers are thugs armed to the teeth and looking for an excuse to kill white males and steal their wives or girlfriends.

Some of the jurors who wanted to convict Dunn probably have contacted Corey and informed her regarding how many jurors bought the self-defense argument and their reasons for doing so.

Corey is more likely to retry the murder charge, if the vote were 11-1 or 10-2 to convict, as opposed to acquit. She may ultimately decide against retrying Dunn for the murder, if 4 or more jurors held out to acquit. After all, there is not much point in retrying Dunn, unless good reason exists to believe the retrial will end in a conviction.

The evidence against Dunn was overwhelming. However, she did not use Dunn’s overtly racist letters in which he said the world would be a better place if more white people shot and killed black thugs and gangsters like the boys in the red Durango.

Corey likely will have to use those letters, if she hopes to convict Dunn, and I am not at all certain that she is willing to do that. After all, she was elected State Attorney by pandering to white racist fear of black male teenagers by promising to aggressively prosecute and convict all the thugs and gangsters, which are the new words used to replace the N-word.

Her apparent lack of zeal to convict George Zimmerman for the murder of Trayvon Martin does not inspire confidence that she is not racist. Frankly, I think she shares some of Dunn’s beliefs, so I would not be surprised if she ultimately dismisses the murder charge.

Dunn will not be sentenced until the murder charge is resolved, whether by trial, plea or dismissal. After it is resolved, the matter will proceed to sentencing where Dunn is looking at a sentence of at least 60 years.

Dunn has a constitutional right to appeal the case after the sentence is imposed and a final judgment is entered.

He also has a constitutional right to be represented by court-appointed counsel during that appeal at public expense, if he is indigent and unable to hire private counsel.

Incidentally, the same applies to a retrial of the murder charge. Look for Cory Strolla to move to withdraw, if Dunn is out of money.

The court would most likely appoint a public defender to represent Dunn, although courts sometimes appoint a private lawyer willing to work at the lower rates courts are willing to pay.

At this point, I do not believe Dunn has any meritorious issues to raise on appeal. Therefore, regardless of the outcome of a retrial of the murder charge, I believe he will spend the rest of his life in prison.


Jury’s failure to reject Dunn’s self-defense claim produces absurd result

February 17, 2014


Democracy Now report about the verdict and Amy Goodman’s interview of Michael Skolnik

Monday, February 17, 2014

Good morning:

The jury’s failure to reject Michael Dunn’s self-defense claim produced an absurd result.

It convicted him of shooting at and missing three black teenagers but did not convict him of any crime for killing Jordan Davis.

That result, though presumably not intended to punish Dunn for failing to kill the three black teenagers, nevertheless looks bad.

With the exception of Dunn’s self-serving testimony, there was no evidence of self-defense.

Therefore, the viability of his claim of self-defense depended entirely on his credibility.

He lied when he testified under oath that he contacted law enforcement officials after the shooting before they contacted him.

He told the jury that, while driving home to his residence in Brevard County the morning after the shooting, he called his neighbor, a federal agent employed by the U.S. Department of Agriculture, and told him that he wanted to discuss an urgent personal matter with him upon arrival.

The prosecution produced his cellular telephone bill that established that the phone call was initiated by the neighbor.

Rhonda Rourer, his fiancee who accompanied him on the drive, testified that he placed the call from the neighbor on speakerphone. The neighbor invited the two of them over to his place for a social event. Dunn declined claiming Rourer was not feeling well enough to attend. Dunn did not mention getting together later or at any other time to discuss an urgent personal matter.

Dunn’s false statement to the jury while under oath was important because, despite claiming that he fired into a vehicle occupied by black gangsters and thugs after being threatened with death, he never called 911 to request assistance or to report what happened. Instead, he drove out of the parking lot past a parked police vehicle on the other side of the street with its emergency lights on and drove to his hotel where he walked his dog and ordered a pizza.

The police would not have been able to identify Dunn as the shooter, but for the actions of a homeless young man living out of his car, who was in the right place at the right time, memorized Dunn’s license plate number and gave it to the store manager who called it into 911.

He did not call police that night and he did not call them next day.

Can anyone of sound mind seriously believe that his actions are consistent with a claim of self-defense in a case in which Jordan Davis and his three friends were unarmed and no weapon of any kind was in their vehicle?

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn lied because he was hoping the police would not be able to identify him as the shooter.

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn lied under oath to the jury hoping they would believe he initiated contact with the police?

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn did not shoot Jordan Davis in self-defense?

Especially since Dunn never once told Rhonda Rourer that he saw a shotgun or the barrel of a shotgun or any other weapon before he fired 10 bullets into the red Durango.

The prosecution lost this case in jury selection.

I have repeatedly stressed the importance of jury selection to my clients and colleagues while practicing law, to my law-school students in trial advocacy, and to my readers on this blog.

To prepare for jury selection in the next trial, prosecutors must identify the jurors who believed Michael Dunn fired in self-defense. They must review the jury selection process to determine what they did wrong or failed to do that resulted in those jurors being seated on the jury.

They will lose again, if they fail to do that and justice again will be denied to Jordan Davis and his family.

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We face having our power turned off this week unless we get some more donations. Please donate, if you have not already done so.

Fred


Racism is an insane delusion about people of color

February 16, 2014

Sunday, February 16, 2014

Good morning:

Although I am pleased with the three guilty verdicts of attempted second degree murder and the guilty verdict for shooting into a car that will keep Michael Dunn locked up for the rest of his life, I am disappointed with the jury’s failure to reach a verdict on count 1, which charged him with first degree murder for the death of Jordan Davis.

Ironically, without the presence of the three boys in the Durango and the guilty verdicts to diminish our disappointment, we would be in a much different emotional state today.

I support Angela Corey’s decision to retry him, but she is going to have to change her strategy to obtain a different result.

I am going to focus on Jordan Davis today, which is his birthday, and explain what she must do to obtain justice for Jordan.

The time has come to stop white-washing racially motivated crimes. By that, I mean ignoring the elephant in the living room, racism.

Although motive is not an element of most crimes and therefore irrelevant, it may be relevant (i.e., probative) to prove intent.

The importance of introducing evidence of racial motivation comes into sharp focus when the victim, like Jordan, was black unarmed, and the defendant, like Dunn, is white and claims he saw a weapon or a portion of a weapon and killed the victim in self-defense.

Such a killing would be justifiable homicide in self-defense, if the defendant reasonably believed himself to be in imminent danger of death or serious bodily injury.

As our United States Supreme Court has often said, reasonableness depends on the “totality of the circumstances.”

We know from Dunn’s letters that he regarded the four boys as dangerous thugs and gangsters listening to “thug” music.

That is a racist assumption unsupported by any evidence.

Sometimes people see what they expect to see or want to see and that certainly applies to racists who are substantially more likely to assume that an unarmed black male teenager is an armed thug than an unprejudiced person.

Like it or not, that mindset is part of the totality of the circumstances that a jury should have a right to consider in deciding whether a defendant like Dunn gave a truthful account of his actions and acted reasonably.

Our legal system needs to acknowledge the existence of racism and call it what it is, an insane delusion.

A claim of self-defense must be evaluated according to whether a reasonable person in the same situation as the defendant would have believed himself to be in imminent danger of death or serious bodily injury such that the use of deadly force in self-defense was reasonably necessary.

There is no such thing as a reasonable insane delusion and we do justice to no one by excusing a violent act committed by a person pursuant to an insane delusion and ignoring the consequences of that act.

I do not mean to suggest or imply that Dunn actually saw a weapon or believed that he did. I believe he lied about that to avoid arrest and prosecution.

Evidence of a racial motivation to kill makes comprehensible the otherwise incomprehensible crime.

For example, let’s assume that a defendant in a murder case, who shot and killed an unarmed teenage girl whom he did not know, testifies and says,

“Why would I have killed her unless I believed she had a gun and was going to rob and kill me?”

A racist is more likely to believe that she had a gun or lie about it than a person who is not racist.

White washing racist defendants by concealing or withholding evidence of their racial motivation from a jury will produce injustice, not justice.

It is not a coincidence that my hypothetical resembles the Renisha McBride case in Detroit, which is coming up for trial in June.

I do not know if Theodore Wafer is a racist, but I certainly would be looking for such evidence with the intent of introducing it at trial, if I were the prosecutor.

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This is our 901st post and we passed 2 million all-time views for the blog last night, despite being in existence only a little over two years.

We are still in desperate financial straits with bills for basic living expenses and medical bills we cannot pay for this month. We need help. Please donate today, if you haven’t already.

Fred


Saturday night review of the Dunn trial 2/15/2014

February 15, 2014

Saturday, February 15, 2014

Good evening:

The Good News

A semblance of order has been restored to the universe. After deliberating for 33 hours, the jury in the Michael Dunn case convicted of him of 3 counts of attempted murder in the second degree involving Tommy Stornes, Tevin Thompson and Leeland Brunson. Each crime was committed with a firearm. It also convicted him of discharging a firearm into a vehicle.

Dunn must be sentenced to a minimum of 75 years and could be sentenced up to a maximum of 105 years.

Since he is 47-years-old, he will spend the rest of his life in prison.

There do not appear to be any issues for appeal that are likely to result in reversal of his conviction.

The Bad News

The jury was unable to reach a verdict as to count 1, which charged him with the premeditated murder of Jordan Davis. We do not know what the split was about or the vote because the jurors declined to talk to the press.

State Attorney Angela Corey announced that her office will retry Dunn on count 1.

Dunn remains in custody and is scheduled to be sentence the week of March 24th.

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We went over 2 million views for the site tonight in just a little over 2 years. Thank you to all of our readers.

Fred and Crane.


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