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Yet Another Discovery Twist in the “Loud Music” Murder Trial

Yet Another Discovery Twist in the “Loud Music” Murder Trial

Just when we thought the Florid “loud music” murder trial couldn’t get any crazier

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, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.


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Sounds like he’s totally lost it.

If this criminal court judge is actually saying ‘Take this evidentiary matter before me in this current criminal proceeding and hand it off to some civil court to decide sometime whenever they get to it, in the meantime criminal proceedings will continue here’…

WOW !!!!!

Recusal hell, this nutbag needs his seat at the bench revoked.

Humphrey's Executor | January 29, 2014 at 2:46 pm

What’s the media’s remedy if the judge/parties drag their feet on disclosure? They can’t delay the trial.

The appellate court’s order quite obviously is interpreted as telling the trial judge that he has to have an evidentiary hearing before making a decision to release/not release and if so, to what extent and under what terms should any release happen. Further, they are quite clearly telling him he will need to do an in camera review prior to releasing any materials which is pretty typical.

The trial judge probably changed his mind over the weekend when he actually bothered to read the appeal court order and thought about it for five seconds. He can’t just snap his fingers and either release or not release. He actually has to sit in his chambers and listen to each and every item himself before he can make a decision to release or not release that particular item. An evidentiary hearing is necessary so he can put those materials in context. For example, there may be items that if released would have no possible impact on the defendant’s rights in the criminal trial, so that sort of thing could probably safely be released. But there may be other items which if released could prejudice the defendant’s criminal rights. But the trial judge has no way of making those determinations without the in camera review + evidentiary hearing.

Given the quantity of material involved there is no way the judge wants to waste any time doing this, which is why he is trying to foist it on over to a civil judge. It’s unclear whether he can successfully shovel the grunt work off to some other judge this way. Depends on the local/state law and precedents. I imagine however a civil judge would say “How can I make these decisions which might impact the criminal trial? The criminal judge has to do it.” So I think the criminal judge is stuck with this baby.

On the other hand the appeal court order seems to say he can postpone the determination until after the criminal trial is concluded which would be the smart move under the circumstances.

    sequester in reply to Marco100. | January 29, 2014 at 7:25 pm

    An insightful post. Sometimes it is better for the Court to let issues fade away. Judges choose moot over lot’s of work lot’s of times.

    Let me get this straight. The appeals court wants to see a hearing concerning what evidence can be released or not pending a criminal trial, and the judge wants to foist this on a civil judge? What business does anyone but the trial judge have determining what release would be, as an excellent example, prejudicial to the defendant?

      Healey’s officially washed his hands of the matter, it’s the civil court’s problem as far as he’s concerned.

      Update post will be up shortly.

      –Andrew, @LawSelfDefense

“What, one wonders, happened between Friday and Tuesday?”

I wonder if Healey had lunch or just talked on the phone with some “influential” people over the weekend.

Does a lot of Florida’s trials work under orders issued from up high, or is it just the high profile cases?

What good is an FOI law if you have to pay thousands of dollars to get the information?

These fees are used by government and agencies at every level to AVOID public disclosure.

The fees were instituted to avoid abuse of process by some gadfly citizens who would flood agencies they didn’t like with requests which would tie up employee time and cost money in supplying thousands of paper copies. Their actual effect is the opposite, giving miscreant government employees a way to keep their dirty laundry out of public view.

I suggest that FOIAs be amended to require only publication on the internet, not paper copies of documents, and eliminate charging for employee time, the estimates for which are always inflated. (Besides, ever been in a government office? Look busy to you?)

    rantbot in reply to Estragon. | January 29, 2014 at 8:10 pm

    I suggest that FOIAs be amended to require only publication on the internet, not paper copies of documents, and eliminate charging for employee time

    That won’t redact protected information, which is the manpower and cost issue here.

      Estragon in reply to rantbot. | January 30, 2014 at 1:19 am

      But that’s not “extra” time, since someone will have to redact it for discovery anyway.

      There is no need to charge the public for what the state agency is going to have to do anyway.

Estragon writes:

“I suggest that FOIAs be amended to require only publication on the internet, not paper copies of documents, and eliminate charging for employee time, the estimates for which are always inflated. (Besides, ever been in a government office? Look busy to you?)”


–Andrew, @LawSelfDefense

Let me get this straight: the attorneys are not supposed to make public statements about the trial, the judge is not supposed to make public statements about the trial, but it is ok to for the press to come in, and publish boatloads of transcripts of a prisoner’s telephone conversations? In advance of trial? Edited the way we know the press will do it?

Then, after such publication, there is a public firestorm about this awful man, a conviction, and a reversal because the pretrial publicity deprived him of his privacy and his right to a fair trial.

I am looking forward to seeing Angela Corey disbarred, and of course I distrust the procedure of having a “pre-hearing” hearing with less than all of the hearing participants. Neither of those considerations blind me to the danger to the rights of the individual, if this type of pretrial publication is allowed.

Am I missing something here?

    “Edited the way we know the press will do it?”

    Did you perhaps observer the coverage of the Zimmerman trial here at Legal Insurrection?

    That would have been IMPOSSIBLE had the discovery evidence been suppressed until trial.

    Will the MSM twist the evidence to fit their agenda. Of course.

    And I’ll meet them on that battlefield. And kick their butts.


    Disclosure. Absolutely.

    –Andrew, @LawSelfDefense

      flip side of the coin, would there have been a need to counter it if the discovery evidence info wasn’t out there being manipulated by the media ?
      not sure this is a cut and dried issue.

        The media and race-baiters were steamrolling their “racist white-hispanic murdered 12-year-old black boy for wearing a hoodie and having skittles” narrative loooong before any discovery material was made available.

        Would they have stopped doing so in the absence of discovery disclosure?

        I think not.

        I don’t own a few hundred newspapers and news stations. I’ll that the discovery.

        The truth is my only weapon.

        –Andrew, @LawSelfDefense

          yeah, thats why I say I don’t think its cut and dried.
          do we better protect the defendants right to fair trial as it is in FL now?
          really do wonder, and I;ve been really wondering since the casey anthony stuff and the media circuses there.
          guess to sum it up I should say I don’t know if the present setup there is the best it could be.

I thought the big problem with the Zimmerman trial was that the information wasn’t available to the DEFENSE. I don’t remember the media being all that helpful — actually, I remember the media pretty much trying him and finding him guilty even before the trial started.

I don’t much like the British system but I do think that closing down media coverage between charge and trial is a good idea.

“I don’t remember the media being all that helpful — actually, I remember the media pretty much trying him and finding him guilty even before the trial started.”


And who pushed back against that media lynching?

We did. Right here at Legal Insurrection. As did many other blogs.

And how were we able to do that in a compelling way?

Because we had access to the actual facts in the discovery file.

Absent those facts, we would have been engaged in nothing more than flailing speculation.

I gather some of you think the whole Zimmerman discovery file would have been better left in the hands of the prosecution doing everything they could to convict an innocent man.

Shame on you.

–Andrew, @LawSelfDefense

    Shame on you.

    In all your posts at LI, there comes a point where you display the most astonishing obtuseness, accuse a poster of some wretched offense he didn’t actually commit, and make a thorough ass of yourself. This is one of those points.

    You’ve done Mr Rabid an injustice. You’ve also failed to deal with the point he raised. It’s becoming clear that you are one of the people hot to expose Mr Dunn to attacks which have nothing to do with the trial. I can’t be the only one who thinks that puts the shame on you.

    Oh, screw this. I can be pretty obtuse too, but eventually I realize when I’ve been wasting my time, or more accurately allowing someone else to waste it. Adios.

      I don’t believe I specifically referenced Mr. rabidfox at all.

      Let me see . . . . nope.

      So I fail to see how I could have done him an injustice.

      Indeed, it is YOU, sir, who directs a personal charge of some vague misconduct against ME:

      “It’s becoming clear that you are one of the people hot to expose Mr Dunn to attacks which have nothing to do with the trial.”

      Perhaps you’re projecting re: being obtuse and doing injustice?

      WHY you are SO angry about the prospect of Florida’s public documents law being followed?

      –Andrew, @LawSelfDefense

      seems to me the only person acting like an ass here was you.

The theory behind broad disclosure laws like Florida’s is that it is better to err on the side of more disclosure than to allow government agencies to “manage” what information they release (like Ezra Klein wants to “manage” the news).

Redacting the logs is necessary to avoid prejudicing the jury pool AND to avoid harming innocent persons who have nothing with the current case. What is required to be disclosed is only that which may come into evidence, and those things cannot.

The defendant is warned that anything he says may be used against him when arrested. That includes what you say to the cop interviewing you, what you say to the snitch in the next cell, or what you say in a monitored visitation or phone call. Some states have signs by the phones and in the visiting room reminding that conversations are recorded.