Just when we thought the discovery evidence kerfuffle in Florida’s “loud music” murder trial couldn’t get any crazier, Circuit Judge Russell Healey has introduced another twist that denies the media access to Michael Dunn’s jailhouse phone recordings.

Dunn is charged with first degree murder in the shooting death of Jordan Davis, and is claiming he acted in lawful self-defense. For more background on the case, see “Loud Music” Murder Trial: Discovery Held Hostage, or Media Being Stingy?

It seemed yesterday that the only remaining impasse to the media accessing the 185 hours of phone recordings was their conceding to pay the State ~$6,300 to cover the costs of redacting them, a process the State expects to take as long as 10 weeks. Dunn’s trial, however, is scheduled to begin on February 3, only two working days from today.

The mathematics of the dilemma was, of course, already known. Yesterday, however, Judge Healey threw another wrench into the works.  (Dunn’s legal counsel has repeatedly asked for delays in the start of the trial, and in fact the trial had originally been scheduled to take place last September.)

The new issue? Judge Healey essentially shrugged off responsibility for ruling on the issue at all. Instead, he said, whether the recordings should be released was really an administrative matter that ought to be decided by a civil judge.

Circuit Judge Russell Healey, presiding over Florida "loud music" murder trial

Circuit Judge Russell Healey, presiding over Florida “loud music” murder trial

The media intervenors, represented by Attorney Jennifer Mansfield, argued that the various orders of the 1st District Court of Appeals, which oversees Healey’s court, compelled him to order the release of the recordings. Healey disagreed, arguing that a careful reading of the DCA’s orders required merely that he vacate his own previous orders suppressing the recordings, not that he himself order their release.

The precise language of the DCA order is worth considering:

This [vacating of Healey’s prior orders suppressing the recordings] is without prejudice to a subsequent motion to determine confidentiality of the records at issue or for a protective order limiting the disclosure of discovery materials. Should such a motion be filed, or if the trial court considers the matter on its own motion, the court is directed to immediately convene an evidentiary hearing . . . for the purpose of determining whether closure (including, but not limited to, deferral of public access to pretrial discovery materials upon timely in camera review of such materials) in this cause is warranted by law. [ . . . ] Following the hearing, the trial court shall promptly enter an order, stating with specificity its findings of fact and its reasons for granting or denying closure in this matter. Any party or intervenor adversely affected by such order may file a timely petition for review with this court.

In fact, Dunn’s lawyers had subsequently filed a motion arguing that the recordings should be suppressed prior to trial to avoid tainting the jury pool, and just this past Friday Healey had ruled against this motion. In his ruling, he stated explicitly that:

Therefore, this Court now orders that the witness information and jail calls be made available to the public.

Then two days later, yesterday, Healey abruptly suggests that perhaps the decision of whether the recordings should be released isn’t his to make, after all.

What, one wonders, happened between Friday and Tuesday?

Healey has given the parties until this morning to submit any arguments they wanted to make one way or another, and has indicated he expects to make a final ruling by the end of the day today.

One can’t help but imagine that nobody is more surprised by this sudden proposal to toss the matter into the laps of the civil courts than the 1st District Court of Appeals. Their response to these events, if made public, should make lively reading.

–Andrew, @LawSelfDefense


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.