Few among us will soon forget the “eccentric” jurisprudence demonstrated by Judge Debra Nelson during the George Zimmerman trial. I am pleased to discover that, to the good fortune of legal bloggers everywhere, Florida apparently has a surfeit of such judges.
You ask for a similarly “eccentric” Florida judge in another Florida self-defense case? I give you Judge Russell Healey in the upcoming Michael Dunn trial.
Interestingly, it seems the Sunshine took several swings at the ball before seating Judge Healey to try this case, a pattern also reminiscent of the multiple judges rotated through the early days of the Zimmerman trial.
The first judge assigned to the Dunn case, Judge Suzanne Bass, recused herself in May 2013 in response to a defense motion claiming several of her rulings against the defense revealed bias. You can view the defense motion for recusal by clicking here.
The second judge assigned, Judge Mallory Cooper, recused herself after only 5 weeks on the case, for reasons not made clear.
Judge Healey is thus the third judge—so far—to preside over the Dunn trial.
Before we get into some of Judge Healey’s more interesting jurisprudence, it may be useful to quickly summarize the case. Michael Dunn is charged with first-degree murder in the death of Jordan Davis, a 17-year-old high school student.
The facts appear to be as follows: On Friday, November 23, 2012, Davis was in a car with friends, parked at a gas station, and playing loud music. Dunn also pulled up to the gas station pumps. Finding the volume of the music objectionable, Dunn asked Davis and his friends to lower the volume. Matters quickly escalated, and Dunn ended up shooting and killing Davis. Dunn is white, and Davis is black.
The State, and Davis supporters, claim that Dunn simply murdered Davis “over loud music.” Dunn, and his defense counsel, argue that he shot in response to threats of imminent deadly force made by the young men in the car, and their apparent display of a firearm. He maintains that these factors raised a reasonable fear of imminent death, and he that he fired in lawful self-defense.
The trial is scheduled to begin on Monday, February 3, in about 3 ½ weeks.
Now, back to Judge Healey.
The Court overseeing the Dunn trial has, over the course of 2013, entered a variety of orders suppressing the release of various discovery evidence. to the media Specifically:
On April 1, 2013, Judge Bass (then presiding) entered an order sealing the names of witnesses revealed during discovery.
On August 1, 2013, Judge Healey (having replaced Cooper, who had replaced Bass) extended the April 1 order to the date of trial.
On October 24, 2013, Judge Healey entered, sua sponte (meaning, on its own initiative), an order restricting public access to various discovery. Of particular concern to the judge, apparently, was some content of letters written by Dunn while in jail. Healey explained that he believed these portions could be perceived as racially inflammatory and undermine Dunn’s ability to obtain a fair trial.
Incidentally, all of these orders to suppress discovery and deny it to the media were made without any prior notice to the media, without any evidentiary hearing, and without any opportunity for the media to respond to the court’s orders—all steps that are required by law before discovery materials can be closed from the public view.
As one would expect, the media did not take kindly to all this discovery material being withheld from them, and so on October 28, 2013 they asked permission of the court to be qualified as Intervenors—in other words, as a party that could argue motions before the court even though they represented neither the State nor the defense.
When this status was granted by the court, the media filed a motion to have Judge Healey’s October 24 motion vacated. A hearing on this motion was held on November 7, 2013, with the result that the media’s request to have the October 24 motion vacated was denied by Judge Healey. The media representatives would then go on to appeal the matter to the 1st District Court of Appeals (1st DCA), which oversees Judge Healey’s court.
It was this November 7 hearing where things got truly bizarre, to such a degree that the 1st DCA would label the circumstances “beyond just disturbing.”
(One of the less bizarre, but still notable, aspects of this hearing was that its active participants included both State Prosecutor Angela Corey and Assistant State Prosecutor John Guy—Guy being infamous for having repeatedly shouted “fucking coons” at the top of his lungs throughout the Zimmerman trial. You ask if I’m surprised they were both personally involved in this fiasco of a hearing? Hahaha! No.)
The purpose of the November 7 hearing was, of course, to argue the merits and rule on the media’s motion to have the October 24 discovery suppression order vacated. The parties to this motion necessarily include the media—accepted by the Court as Intervenors—the State, and the defense, with Judge Healey presiding as the objective decision maker applying the law.
The transcript of that day’s events in Judge Healey’s courtroom, however, revealed something very odd. The hearing, as described above, and including all the relevant parties, did indeed occur. But immediately prior to the hearing, Judge Healey held what might be called an unofficial pre-hearing in which the exact same issues were discussed. Except that at this pre-hearing all the parties were represented BUT FOR the party whose motion was to be heard—the media. (It emerged in this non-hearing hearing that a major rationale for suppression of discovery evidence was that the State didn’t want to release the ~160 hours of Dunn’s jail-recorded phone calls without having first listened to and redacted them, and the media was unwilling to pay the $6,000 cost demanded by the State to do this work–especially, one can assume, given the very little value that can remain following an aggressive redaction process)
Remarkably, Judge Healey, the State, and the defense collectively discussed at length legal strategies for rationalizing a denial of the media’s motion—all without the media representatives themselves being present. Once the Court, the State, and the defense had all agreed upon their preferred approach, the media was brought into the courtroom as if the parties were only then beginning to argue the motion. A transcript of the day’s hearing (including the bizarre “pre-hearing”) can viewed by clicking here.
On November 19, 2013, Judge Healey unsurprisingly rejected the media’s motion to vacate the existing orders suppression discovery materials. The media promptly appealed to the 1st DCA, which immediately recognized the odd circumstances of the November 7 hearing. As Judge Scott Makar of the 1st DCA was to comment :
I do find it disturbing. When I was reading the transcript [of the November 7 trial court hearing] . . . I got to page ten, fifteen, twenty, thirty, and I’m thinking, “Where’s the media [representatives]?” There is this hearing going on, with all the merits of the motions being discussed, and the details, factual details, being discussed between the trial judge, prosecutor, I think defense counsel was there. And I’m thinking, “Why am I reading this, because this isn’t the hearing?” And then all of a sudden, it goes on the record and Petitioners [the media representatives] show up and there is a hearing. Now I find it . . . beyond just disturbing, that there was this pre-hearing that went on without the interested party being on notice [informed] of it and being present.
The result was that the State prosecutors, the defense, and the trial judge were all scheming in secret chambers on how best to deny the media’s motion for access to the discovery material. (Based on prior experience with the Zimmerman case I do not anticipate any persons involved to suffer any sanctions whatever. The reason? Florida.)
On December 18, the 1st DCA issued an order vacating both the November 19 rejection of the media’s motion and the earlier October 25 order suppressing the discovery materials. This was done without prejudice, meaning the parties or even the court itself could immediately reinstate essentially identical orders.
Prior to any such order taking effect, however, the DCA required that the trial court:
“immediately convene an evidentiary hearing, after providing appropriate notice to the Petitioners [the media], 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.”
Click here to read the 1st DCA ruling on the matter.
Essentially the DCA told the trial court it could try again to suppress discovery material, if it wanted to, but it would have to do so the proper way—with an actual evidentiary hearing that evaluated the actual evidence, and with proper notice to the media. They also made sure the media understood that if they didn’t like how the trial court handled the do-over, they were free to rush back to the DCA to get things straightened out.
The results of this DCA ruling on Judge Healey’s handling of discovery materials?
Apparently not much, because yesterday the media felt obliged to take the DCA up on its offer to run on back if matters weren’t resolved to their liking. They filed yet another motion with the DCA asking it again to vacate the earlier orders of Judges Bass and Healey closing discovery evidence from the public.
To see this most recent motion by the media for access to the full discovery materials, filed yesterday (December 7, 2014), click here.
With the trial now scheduled to take place in less than 30 days, time has now become of the essence. And, in consequence, I anticipate the velocity of news on this case to increase dramatically.
In separate news on the case, it seems that all civil suits resulting from the shooting have been settled, effective as of last week. The parents of Jordan Davis has sued for wrongful death, as well as claims of certain defamatory statements alleged by Dunn against Davis. The parents of the other young men in the car had also brought suits, but these have also been reported settled.
None of the terms of any of the settlements were disclosed, a common occurence. Michael Dunn has been declared indigent for purposes of receiving state aid in paying for his legal counsel, so it seems unlikely that much blood was squeezed from that stone. His insurance company, Progressive Select Insurance, had been arguing vigorously as recently as December 18 that they had no duty to cover these various suits, but perhaps a mutually agreeable resolution was achieved.
Stay tuned, right here at Legal Insurrection, for more details and legal analysis as they emerge.
–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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