Last Friday we noted that Circuit Judge Russell Healey, presiding over the trial of Michael Dunn, had denied a defense motion to limit media access to discovery evidence consisting of many hours of recorded phone conversations between Dunn and others while he was in jail awaiting trial. (See Media granted access to evidence in FL gas station teen murder case.)
Dunn, you will recall, is charged with first-degree murder in the killing of Jordan Davis, and claims he acted in self-defense. The State prosecutors and advocates of the Davis family claim Dunn shot and killed Davis merely because Davis was playing music in his car too loud.
The defense wanted the phone call recordings denied to the media because they believed some of the content would be derogatory to Dunn in the view of prospective jurors, and they wished to avoid tainting the jury pool. Based on the contents of discovery evidence previously released in this case, in the form of letters written to and from Dunn while in jail, this seems a reasonable concern.
The media naturally objected, given Florida’s very strict public records law. They requested, and Judge Healey granted them, status as an intervenor in the case — meaning they had legal justification for bringing motions in the case. More specifically, this status was granted to the Florida Times Union newspaper and WJXT, a leading Jacksonville television news station. (Additional local media are included as “coverage” partners of these two named intervenors.)
The media has already used this intervenor status to file motions to vacate Healey’s orders withholding evidence from them, and then to appeal to his bosses — the 1st District Court of Appeals — when he denied their motion following a bizarre November 7 hearing. (For more on this bizarre hearing, and the District Court’s astonished review of it on December 18, see: Next Florida self-defense trial: Loud music, teens in a car and a shooting.)
The 1st District Court vacated both Healey’s original suppression order as well as his order denying the media’s November 7 request to vacate that suppression order. They then returned the matter to Healey, instructing him that if he wished to suppress the discovery evidence he had to do so in compliance with the law, and be able to articular in his ruling the legal basis for his decision. They also explicitly offered the media intervenors a quick review should Healey once again decide against them.
Healey apparently got the message, as reflected in his order this past Friday denying the defense motion to keep the discovery from the media.
With the defense objections out of the way, one might think that the discovery phone recordings would be well on their way to the eager ears of the media intervenors.
And you’d be mistaken.
Because not only does the defense wish the recordings denied to the media, the State is also resisting providing the recordings.
One imagines that one reason for the State’s resistance is that the head prosecutor in the case is the very same Angela Corey who oversaw the ridiculous prosecution of George Zimmerman — a woman known to be highly sensitive to public criticism (she famously threatened to sue both Alan Dershowitz and Harvard Law School when he dared to criticize her conduct in the Zimmerman case) and who likely felt every negative word of every journalist and blogger as a stinging offense throughout the more than year-long prosecution of Zimmerman.
Corey has since publicly stated her position that she doesn’t believe the media is entitled to any access to evidence prior to the start of a trial. (See: Florida district attorney isn’t a fan of a free press, an informed public, or reading, Washington Post, 1 January 2014.)
Given Florida’s strong public records laws, however, her personal preference of denying the media access to discovery evidence does not constitute much of a legal argument.
As a result, she’s stopped making a legal argument for denying the discovery to the media, and instead is making a financial argument. The media may have the discovery recordings of the phone calls, she states, but only if they are willing to pay the estimated $6,300 it will cost to adequately redact protected information from those calls.
The media has consistently refused to fork over this deposit, and continues to refuse to this day.
The State’s position demanding the redaction fee is laid out explicitly in their motion filed yesterday in response to the media intervenor’s own motion to compel the State’s release of the discovery recordings. (This motion was obtained from a news story by First Coast News, a Jacksonville-area news broadcasting company, as well as in print on their website: Dunn public record fight gets expensive.)
This motion was signed, and presumably drafted, not by Corey herself but by one of her staff, Assistant State Attorney Meredith Charbula. I was previously unfamiliar with Ms. Charbula’s work, and was pleasantly surprised to see that this motion contained little — well, much less — of the whining tone so common to motions I’ve reviewed that have been filed by other Corey staff, including most of those who formed the Zimmerman prosecutorial team.
Also pleasantly surprising, the State’s motion — provided in full-length below — seems to present a coherent argument based solidly on the law and facts. (Nice job, Ms. Charbula.) (As an aside: in an unsuccessful effort to obtain an image of Ms. Charbula for inclusion in this post I discovered that she served nine years active duty as an Army JAG, as well as an additional 22 years in the Army Reserve. The high quality of her work is now much less surprising.)
Of course, this State’s motion represents only one side of the story — it will be interesting to read the media intervenor’s response, should they decide to respond rather than merely pony up the $6,300.
From loud music, an argument, a fusillade of shots, a death, a charge of 1st degree murder, and a pending trial, we now find ourselves with a courtroom full of highly paid lawyers and a judge arguing at length about paying a state employee earning $10.49 per hour to redact legally protected information from discovery documents to which the media is otherwise entitled.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.