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“Loud Music” Murder Trial: Discovery Held Hostage, or Media Being Stingy?

“Loud Music” Murder Trial: Discovery Held Hostage, or Media Being Stingy?

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.

Michael Dunn, defendant in Florida "loud music" murder trial

Michael Dunn, defendant in Florida “loud music” murder trial

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.

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

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

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.)

State Prosecutor Angela Corey basks in media attention while protected by Deputies

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.

Awesome.

–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.

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Comments

This is a case where both the defense and the prosecution would rather proceed in peace and quiet. I tend to sympathize, even if I do look forward to the day when Angela Corey is disbarred for misconduct.

When the circus comes to town, it is always more difficult to find untainted jurors.

There’s something more involved here. $6300 is a paltry sum, certainly nowhere near what they’re spending to fight over it. And, since this is “the press” we’re talking about, “the principle of the thing” probably doesn’t have much to do with it, either.

Not being familiar with the case, I’m having trouble conceptualizing how shooting someone over loud music constitutes first degree murder. Doesn’t premeditation require that the accused achieve a state of calm between the motive and the act?

    “Doesn’t premeditation require that the accused achieve a state of calm between the motive and the act?”

    Nope.

    And motive is relevant, if found, but not an element of the crime, so not even necessary.

    –Andrew, @LawSelfDefense

      premeditation explanation would be another good blog post.
      this one always sounded to me like spur of the moment so that term here in this case has been bugging me too.

        shoot hit post too soon.
        had seen the premeditation terms used on other sites, not sure if its actually being used in the actual case which I have not read up on. so take that with grain of salt.

      MouseTheLuckyDog in reply to Andrew Branca. | January 28, 2014 at 9:41 pm

      Actually I find it hard to believe 1st degree Probably Corey overcharging to try and get a pl,ea deal.

      Remember from the Zimmerman case certain lesser charges are automatically presented to the jury in Florida. so no there is no risk to push for the higher charge.

Wow. This case is already a real circus, and there’s more to come.

How bad is it going to be when they get to the actual meat of the trial?

MouseTheLuckyDog | January 28, 2014 at 6:38 pm

So how did Corey actually manage to hire someone like Charbula?

    Dunno.

    But I somehow doubt that Charbula’s strategy in the Zimmerman trial would have been to repeatedly shout “f’ing punks” at the top of her lungs.

    Not that she would have won a conviction–it was almost certainly unwinnable for the State, absent a runaway jury, especially given the defense team they were facing–but she might at least have lost with grace and respect for both herself and the process.

    –Andrew, @LawSelfDefense

    rabid wombat in reply to MouseTheLuckyDog. | January 28, 2014 at 9:01 pm

    blind pigs sometimes find acorns…..

I’m glad the press is refusing to pay.

Most state FOIA laws provide for charging for legitimate copying costs. The intent was to discourage broad requests that would require substantial labor and material costs to comply.

However, nationwide we are finding that agencies and local governments are using vastly inflated fees to avoid disclosure. When requests come from private citizens, this nearly always ends the search for truth.

So the reimbursement clauses are being used to subvert the intent of the law. While the newspaper here could pay, they shouldn’t have to – the information would have to be redacted anyway before potential use at trial.

Perhaps a precedent in Florida – or even outrage from a state win – could begin a national backlash against this abuse of power.

If we cannot require disclosure from our local governments, what chance do we have of making the Federales obey their own laws?

    rantbot in reply to Estragon. | January 29, 2014 at 8:39 am

    When requests come from private citizens, this nearly always ends the search for truth.

    It’s not obvious that the resources of Mr Joe Average Citizen and those at the disposal of the multibillion dollar MSM-complex can be usefully compared.

    But more importantly, after the disgraceful performance of the MSM during l’affaire Zimmerman, it seems an act of naiveté to attribute MSM muckraking to a search for the truth. Far more likely they’re following their standard operating procedure, and believe themselves hot on the trail of something to warp into a “f’ing coons” soundbite.

    The defendant’s rights are far more important than is the provision of free entertainment to a malignant and malicious press.

      rantbot in reply to rantbot. | January 29, 2014 at 8:44 am

      Oops, was it “f’ing coons” or “f’ing punks”? I didn’t pay enough attention at the time, since it seemed to be pure theater rather than fact, but if I put it in quotes then it should indeed be a quote. Apologies to all.

    MouseTheLuckyDog in reply to Estragon. | January 29, 2014 at 12:31 pm

    “While the newspaper here could pay, they shouldn’t have to – the information would have to be redacted anyway before potential use at trial.”

    At this point a lot of junk gets looked at. Only some of it will actually be in the trial. So only some will have to be redacted.

In the 4th paragraph there’s a typo, “brining motions” instead of “bringing motions”

This sounds a bit like the Zimmerman prosecution’s little trick with Martin’s phone data, which they handed over to the defense expecting that the $8,000 software to read it would be too steep for O’Mara and West. Members of the Zimmerman prosecution team seem eager to find ways to meet the letter of the law while making it too expensive for the spirit of the law to be fulfilled. My opinion of Corey is so low now that I give even more benefit of doubt to the defendants in her cases.

Phillep Harding | January 29, 2014 at 11:58 am

Corey just wants to sit on it so she will be the center of attention when it comes out in court.

If that first picture of the red car is showing the trajectory of the inbound shots and I was on the jury, someone would have a very difficult time explaining the grouping of shots on the left. The three on the right, come from one relative location and are not very tight, which might indicate some distance from the vehicle. The three on the left come from a different location and are very tightly grouped, which seems to indicate a moving closer and perhaps more a deliberate shooting. Or were there two shooters, each firing three shots?

    joeyjmiller in reply to Loren. | January 29, 2014 at 12:17 pm

    It kinda looks to me like the left group was fired first, and the three shots on the right were made as the car reversed, changing the incoming angle and spreading the shots further apart. I don’t know if any evidence says the car moved during the shooting, but that’s the first explanation that popped into my head

Joey, could be, I know nothing about the case than this posting and looking at the picture. If that is the case, hard to justify the final three shots, you get to use deadly force to end the threat. The car windows were clearly up at the time of the shooting (else they would have holes or be shattered), the car was moving away. You might be able to justify the first 3 shots, under that scenario, but the final three seem iffy with just the picture to go by.

Phillep Harding | January 29, 2014 at 1:15 pm

Who was hit and where were they? (Not just the one killed.)

If the bullets did not richochet, the grouped three would endanger someone in the back seat, driver’s side. The one furthest back on the passenger door should have hit the door post. The one in the middle might have hit the passenger in the front seat. The one furthest forward might not have hit anyone.

I’m having some trouble with these bullet holes and “self defense”, but all the info is not out.

FYI, there are also several bullet strikes to the rear of the vehicle.

I have a much more complete set of forensics photos for this case over at my blog, embedded in the post entitled:

Bullet Impact/Trajectory Crime Scene Photos From Michael Dunn Case (http://is.gd/QouVxt)

–Andrew, @LawSelfDefense

Richard Aubrey | January 29, 2014 at 2:36 pm

Given the facts so far, self-defense is going to be tough to prove. Something else might come up. If the shooter claimed he thought a guy in the car had a weapon, even then the shot groupings might be a problem in terms of ending the threat.
OTOH, given it was a matter of loud music….
It’s done precisely to annoy other people.

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