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Dunn Juror Speaks: State’s Failure to Disprove Self-Defense Hung Murder Conviction

Dunn Juror Speaks: State’s Failure to Disprove Self-Defense Hung Murder Conviction

https://twitter.com/SeniABC/status/435961632087609344

A juror from the “loud music” murder trial of Michael Dunn for the shooting death of Jordan Davis became the first to speak with the press, on this evening’s episode of Nightline. (Video of this interview is embedded at the bottom of this post.)

The juror in question was juror #4, previously anonymously profiled by journalist Stephanie Brown of WOKV as:

(Michael Dunn "loud music" murder trial Juror #4 Number four.)

(Michael Dunn “loud music” murder trial Juror #4 Number four.)

To refresh our recollection, the jury consisted of eight whites, two blacks, one hispanic, and one asian.

The hubbub about the verdicts in this case has, of course, centered on the failure of the jury to agree on a verdict one way or the other on the killing of Jordan Davis.  Dunn had been charged in the indictment with first degree murder, and this by law also covered the automatically lesser included charges of second degree murder and manslaughter.

Because the jury could not agree on either a particular charge or an acquittal. observers were left speculating as to the specific cause of the hung jury on the Davis charge. Were they merely unable to agree on the specific degree of intent or guilt among first degree murder, second degree murder, and manslaughter?  Or was the issue not one of degree, but of fundamental principle–did at least one juror believe that the State had failed to disprove self-defense beyond a reasonable doubt with respect to the initial three shots that had killed Jordan Davis.

We at Legal Insurrection had predicted from the day of the verdicts that it was far more likely that the failure to achieve a verdict on the killing of Davis was based on some jurors believing the State had failed to disprove self-defense beyond a reasonable doubt, and not on merely a disagreement involving degree of guilt.  When jurors merely disagree on degree of guilt, four days of deliberations almost invariably leads to a compromise.  When one or more jurors disbelieves guilt, however, compromise is far more difficult.

In this case, juror #4 tells us that the initial polling amongst the jury on the Davis charges was 10 to 2.  Ten jurors believed Dunn guilty of the murder of Jordan Davis, and two were unconvinced.  Interestingly, after four days of deliberations, this vote had changed to 9 to 3–now three jurors believed self-defense had not been disproved beyond a reasonable doubt, rather than just two. Given this trend, it is no wonder that the jury agreed to ultimately give up on the issue of the killing of Jordan Davis.

A key portion of the trial, the juror said, was when Dunn insistently believed that he was in danger–“I thought I was going to be killed”–followed by Strolla’s urging that they start with “page 25” of the jury instructions, the section that defined the justified use of deadly force in self-defense.

The juror interviewed also conceded that at times the deliberations were so heated that people were shouting and cursing at each other. Several times during deliberations Judge Russell Healey raised concerns that those in the court room might be able to hear the jurors deliberating. It seems clear now that what might have been heard was not moderate discussion, but screams and curses.

The juror also was adamant that race never became an issue at any time of their deliberations. They considered it a matter of some teens who got out of control, and Dunn who got out of control, as generally a bad situation.

Amongst the jurors who would have found Dunn guilty of the murder of Jordan Davis, most believed that Dunn had had a way out other than the use of deadly force.

This juror also placed some emphasis on Dunn’s denial of the use of the phrase “thug music,” when the jury was able to hear him use the term “thug” repeatedly in his interview with homicide detectives.

The juror was asked specifically how they could vote to convict on the attempted murder charges, but not on the murder of Jordan Davis charges.

Exactly as predicted here at Legal Insurrection, the juror explained that the minority on the jury felt that the first few shots at Jordan Davis might have been justified, but that the later shots when Dunn got out of the car and kept shooting was stepping over the line, and not justified.

When the juror was asked whether she believed Dunn had options other than firing at Jordan Davis and the others in the SUV, she stated that she did. Dunn, she said, could have rolled his windows back up, ignored the taunting, put his car in reverse and backed out of the parking spot, moved over to a different parking spot . . . “that’s my feeling,” she answered.

–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

Who were the three is the next question.

    platypus in reply to DennisD. | February 19, 2014 at 4:41 pm

    Irrelevant. I’m offended at ANY mention of race in situations like these. And that includes recitations of the race of each juror as was done in the opening of this article. Don’t misunderstand – I am not bad mouthing the contributors of this blog but I am expressing sadness that they seem to reflexively follow the libs use of race by reciting it again.

    In this case, just say no is the only way to go.

The modern trend of interviewing jurors troubles me.

Sure there is public interest in how verdicts are reached in notorious trials, but one of the strengths of the jury system is the (relative) anonymity of jurors and the secrecy of deliberations. While each citizen brings his own background and experience to bear, for a period of time he is almost outside himself, trying to be objective and follow the evidence. He needs to be able to express himself freely without worrying how his thoughts will play in the press later.

Also, the trend has led to a whole new class of prospective juror: those who actively try to get on the jury of a famous case with the thought of personal fame and possibly fortune to come at the end.

It seems to me harder for the defendant OR the State to get a fair trial when some jurors have ulterior motives.

    tom swift in reply to Estragon. | February 19, 2014 at 2:51 am

    Also, the trend has led to a whole new class of prospective juror: those who actively try to get on the jury of a famous case with the thought of personal fame and possibly fortune to come at the end.

    I don’t see that it’s new. This has always been possible; it wasn’t some new-fangled development, like, say, YouTube, which suddenly enabled it.

      Estragon in reply to tom swift. | February 19, 2014 at 3:45 pm

      You didn’t see the jurors in the Boston Strangler case or the Manson trials giving interviews on television or writing books about it.

    Bruce Hayden in reply to Estragon. | February 19, 2014 at 9:08 am

    I agree that it is troubling. One thing is intimidation. What if you had had a single holdout on the attempted murder, and it was a white female. Would there be some pressure for her to convict Dunn just so that she doesn’t come to the attention of the Black commnity? People shouldn’t be going to prison for much of their lives based on racialized politics. And this fear isn’t trivial – the Zimmermans had to go into hiding, despite him being the victim of an unprovoked physical assault. There appear to be plenty of dissatisfied youth willng to do the dirty work of their community leaders.

      Ragspierre in reply to Bruce Hayden. | February 19, 2014 at 10:01 am

      You simply cannot be so ignorant of history as to think this is a new wrinkle.

      Please…

        healthguyfsu in reply to Ragspierre. | February 19, 2014 at 11:36 am

        I understand this thread began on a different premise but just because something is old does not make it right.

          Ragspierre in reply to healthguyfsu. | February 19, 2014 at 12:03 pm

          Don’t take me where I did not go.

          The premise is that press coverage of juror interviews is a new and bad thing.

          It kind of isn’t either of those things. Imagine a juror in a town or county in Ohio before the turn of the century, where the population is small enough so that people are quite well known to each other. People would know very well who the jurors were in a notorious trial, and they would know who voted which way.

          Jurors have always been under social pressure. Go back in history, and that pressure was often exerted by the Crown very directly in the person of the judge or magistrate.

        Milhouse in reply to Ragspierre. | February 19, 2014 at 2:02 pm

        Is it not a new thing? For how long have such interviews been allowed? In most countries with a jury system it is illegal for any juror ever to disclose what happened in the jury room, just as it’s illegal for a lawyer ever to disclose what his client told him in confidence. Thus the public never finds out, and no juror needs to be afraid of retaliation. I was astonished to learn that this isn’t the law in the USA; but for how long has that been the case?

          Ragspierre in reply to Milhouse. | February 19, 2014 at 2:06 pm

          “Is it not a new thing? For how long have such interviews been allowed?”

          Immediately after they invented gossip.

          tom swift in reply to Milhouse. | February 19, 2014 at 2:12 pm

          In the US it’s not terribly easy for the government to shut somebody up.

          Ragspierre in reply to Milhouse. | February 19, 2014 at 2:15 pm

          “…just as it’s illegal for a lawyer ever to disclose what his client told him in confidence.”

          I don’t know of any law in the United States that makes that revelation illegal.

          It is always unethical, with a few notable exceptions.

          You may be confusing the British legal system’s requirement that a barrister, coming to KNOW his/her criminal defendant client is guilty, MUST retire as counsel.

          platypus in reply to Milhouse. | February 19, 2014 at 4:46 pm

          It is not illegal for an attorney to disclose what his/her client has told him. It is an ethics violation, and rarely could be relevant to a lawsuit for negligence, but that’s it.

          Ragspierre in reply to Milhouse. | February 19, 2014 at 5:14 pm

          It could also cost an attorney their bar card.

          Hard to think of a surer way for an attorney to get disbarred, other than perhaps messing around with client money.

          A public fear of either one–breach of attorney-client privilege or messing with client funds–undermines the ability of ALL lawyers to do business

          The punitive response to either violation tends to be vigorous.

          Commit any of 1,000 terrible felonies, however, and they’ll figure out a way to keep you. 🙂

          –Andrew, @LawSelfDefense

          Ragspierre in reply to Milhouse. | February 19, 2014 at 5:42 pm

          They have “support groups” and programs for lawyers with substance abuse problems (which are common).

          Not so much “accounting support groups” or “blabbing support groups”!

          Some sins are not the same as others…

          Jurors have been free to speak in Florida as long as I can remember. And because of our sunshine/open records laws, their identities are on the public record shortly after the verdict unless a judge specifically orders the record temporarily sealed. But they’re never permanently sealed, like in the Casey Anthony trial I think it was only 6 months or a year, till the immediate hubbub died down.

          Justice needs to be done, and justice needs to be SEEN to be done. Completely secret juries, where no juror is allowed to ever speak of it and where no citizen is ever allowed to see who served on a jury, wouldn’t serve that ideal. I.e., the State could just keep appointing its dozen or so specially-chosen “friends of the State” to whatever trials it wanted a guaranteed outcome in, and how would anyone ever be the wiser?

          “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

    MouseTheLuckyDog in reply to Estragon. | February 19, 2014 at 12:36 pm

    There is a lot of case law about case law that says jury deliberations are sacrosanct. US v Colombo and US v Dyer are the two major cases.
    Shoot someone collected up a whole bunch of decisions.

    I don’t remember the details, but I do remember that even things like finding a juror was drunk during the trial, is not enough to invalidate a verdict.

    But how can jury deliberations be sacrosanct if the juries go around blabbing everything they did? Case in point:
    In the ( civil ) trial Apple vs Samsung, the jury found that Samsung had violated Apple’s patents. The foreman of the jury, a guy called Veltman Hogan, promptly did all these interviews. The most salient thing he said was that Apple’s patents were not violated by prior art because the prior art ran on a different processor. But Apple, while leasing the designs for it’s processors from a company called ARM, makes significant changes to the design and produces their own processors. Which Samsung does not use. How can different processors prevent prior art from invalidating a patent, yet the fact that a person is using a different processor not prevent them from infringing on the patent?

    If a judge had written this in his findings of fact, the appellate court could review it. But because a juror argued this to the rest of the jury, Samsung is forced to argue that the judge should investigate the jury based on the bias of Hogan.

    In this case, if somehow, the lawyers all agreed to split the case. The jury would decide the first seven shots and the judge would decide the last three. On appeal, Dunn could argue that he is not guilty of the attempted murder charges, because Dunn an experienced gun owner, would have known that the chance of the last three shots hitting anyone. But because a jury decided, he can’t argue that. Even though we know the decisions were based on the same logic.

    Gremlin1974 in reply to Estragon. | February 19, 2014 at 7:20 pm

    My only point in this would be that it is the juror’s decision whether or not to speak out. Nothing compels them to be interviewed, it is solely their choice. Also, even when they do speak out they are only allowed to talk about their vote and total votes like the 10-2 references in the post above. They can’t reveal how another juror voted. So as long as it is their choice, I don’t have a problem with it.

Dunn … she said, could have rolled his windows back up, ignored the taunting …

So, let me guess … this particular juror discounted the “thought he saw a shotgun” theory completely. (As, of course, she has a right to do.)

… the deliberations were so heated that people were shouting and cursing at each other.

That’s the danger of having meals brought in to the jury room – the possibility of food fights.

Well Andrew. Does this now become the ‘Loud Music AND Deliberations’ murder trial?

I was a bit surprised at the ultimate 9-3 vote as I, like many, felt it was likely a single hold-out. I can’t say I was surprised at the interview. As is the custom it was likely highly edited. It seemed that some of the questions and answers were about relatively minor issues while other issues were ignored. For instance she mentioned the fact Dunn said he had often in the past asked others to turn down load music and they had done so and this indicated to her he ‘ego’ issues or something to that effect. To me that was not exactly a highlight issue from his testimony or the totality of the incident. The extra emphasis on the ‘thug music’ comment did not surprise me but appeared to have more of a media/prosecution narrative importance than I personally think it deserves. As far as I recall there were no questions about how the jury viewed Dunn leaving the scene and his subsequent actions. Of course those may be on tape and released at a later date.

I thought the ‘did he have options’ question was a complete waste other than reminding people that it is almost always prudent to avoid physical or verbal confrontations when possible. All the options provided were basically that he could have prevented the confrontation from escalating by just ignoring the other party or removing himself from the location.

    tom swift in reply to Baker. | February 19, 2014 at 8:56 am

    I, like many, felt it was likely a single hold-out.

    Curious. Why? For all the information we had earlier, it could have been eleven holdouts. Personally, I’d have been very surprised it there were eleven; but not as surprised as I’d have been if there had been only one.

    One thing this case had in abundance was doubts. And doubts do tend to get in the way of easy decisions.

      Just my personal opinion, based of course on my personal experience.

      I felt Dunn’s narrative of self-defense was fatally co-opted by his consciousness of guilt conduct in flight from the scene (far further than necessary for mere safety) and failure to report the incident to the police even after he knew his gun fire had resulted in a death.

      Naturally, I feel this perception of a very weak self-defense claim is a rational one, and give the jurors the benefit of the doubt (until proven otherwise) that they will have a similarly rational perception. If so, it seems reasonable that fewer, rather than more, of the jurors would buy self-defense.

      The fact that it was two jurors, and then three, who believed that SD had not been disproven beyond a reasonable doubt, rather than the one hold-out I’d mildly speculated might be the case, reinforces why I do not make wagers for money. 🙂

      –Andrew, @LawSelfDefense

      IMO, this case had no doubts. Dunn’s actions from start (asking them to turn down the music) to end (arrest) were not the actions of a fearful person. His actions were confrontational, hostile, reckless and self-serving. Not even his GF corroborated his shotgun story. That one person, much less three, would buy his BS testimony is simply stunning. But Andrew’s right: never second guess a jury.

        tom swift in reply to gxm17. | February 19, 2014 at 1:04 pm

        Some people are more open-minded than others. Nothing stunning about that.

        JackRussellTerrierist in reply to gxm17. | February 19, 2014 at 1:11 pm

        I have always wondered why it is thought that the person being annoyed or harmed is the one who is supposed to “back up” out of fear. In a civil society, the loud music and obnoxious, threatening behaviors should not be tolerated. Instead, our media, entertainment industry and others encourage it in some cases or at least condone it by tolerating it in other cases.

        Dunn didn’t fire until he thought he saw a gun, which would not be an unusual item to be carried and used from a vehicle (which can easily become a moving vehicle, which is why “backing up” would be fruitless) occupied by the element behaving in the manner of this group. If it was a carload of old Asian ladies instead or a soccer mom with kids who turned up the tunes while she was inside the store, Dunn’s fears would be absurd. But it was not a carload of old Asian ladies or a soccer mom. It was a carload of teens who represent an age and race demographic that commit a vastly higher rate of violent crimes than all others and were loudly playing the “we be badass muthafuckas and no limit niggas” music of the glorified thug/gangsta mentality committing those crimes. In other words, they self-identified themselves with the culture of violence through their behavior, so it isn’t a surprise that someone believed one pulled a weapon which turned out to just be a cell phone. Thus, I give Dunn the benefit of legal doubt and would have been among those voting ‘not guilty’ on that charge. Cops are found not responsible under the same circumstance of mistaking something else for a gun and the shoot is deemed justified.

        Fire away, if you wish.

          I don’t believe Dunn’s testimony. Every other witness corroborates the teens’ version of events and contradicts Dunn’s. Add to that, the fact that his actions after the shooting clearly show consciousness of guilt and I think, beyond doubt, that Dunn’s self-defense claim is a complete fabrication. IMO, the only part of Dunn’s story that I believe is that he puked after he found out he had killed Jordan. (Note that he did not tell his GF this fact. She had to find out from the TV that Jordan was dead.) IMO, anyone who disregards all of the evidence and witness testimony in favor of Dunn’s lies is suffering from an either conscious or unconscious bias.

          anyone who disregards all of the evidence and witness testimony in favor of Dunn’s lies is suffering from an either conscious or unconscious bias.

          Oh, I certainly would never accuse you of being open-minded.

          I give Dunn the benefit of legal doubt and would have been among those voting ‘not guilty’ on that charge

          Some seem to think it’s a crime to make a mistake.

          We don’t know what Dunn thinks he saw. We have his testimony as to that, but no evidence to corroborate it. We have some suspicion that he didn’t actually see what he claims he thought he saw; testimony, but no evidence, and certainly nothing rising to the level of proof.

          In other words, what we have is lots of doubt.

          Whether it’s reasonable doubt, well, we have relatively large juries to make up their minds about that.

“Exactly as predicted here at Legal Insurrection.”

Exactly. Great prediction, Andrew.

(What troubles me is that based on this juror’s interview, Dunn could have gotten away with murder, if: Davis was the only kid in the car; and Dunn fired all ten shots consecutively at Davis.)

    tom swift in reply to Redneck Law. | February 19, 2014 at 9:01 am

    A perverse notion. If the jury had decided it was a case of justifiable self-defense – or had reasonable doubt about the prosecution’s claims that it wasn’t – then the defendant wouldn’t be “getting away” with anything. He’d be “not guilty” and that would be the end of it.

    Of course the jury, as we now know, never came close to such a conclusion.

    Had that been the case, the vehicle would not have left the scene and there would be no basis for questioning that the weapon supposedly seen by Dunn had been discarded.

Richard Aubrey | February 19, 2014 at 7:36 am

Loud music, thug or otherwise, coming from a car, is known to be aggression. Nobody goes to the trouble of getting extra speakers pointing out the back–as I think was the setup here–so they can hear better.
It’s done to piss off others. It’s why a person alone will go into a store and leave his music blasting in the parking lot.
Nobody’s stupid enough to believe otherwise.
The first noise ordinance arrest in the town where I used to live was of some punk who also had a bumper sticker saying, “If this sound bothers you, you’re too old.”
It’s in your face and what are you going to do about it.
One report has Dunn asking the music be turned down, and it was, and then turned back up.
From which I deduce one of the young men acted in automatic courtesy until he or one of the others recollected the purpose of the music and returned to blasting.
Whether or not that is true, everybody knows loud music in these situations is aggressive and thus Dunn could have had a heightened sense of conflict. Particularly if it were true.
Maybe he should have left. Maybe asking the young to be civilized is a good idea. But the heightened sense of potential conflict could certainly affect the perceptions of an otherwise ambiguous stimulus–somethingsomething perceived as a shotgun when it was not.

    Mostly agree, but I think the point of loud music is not to aggravate others but to get attention. Loud music screams, “LOOK AT ME!”.

      steveo1 in reply to creeper. | February 19, 2014 at 9:02 am

      I still believe this guy was a simmering Travis Bickle. Even his girlfriend said she didn’t know how many guns the guy owned, she lost count. He was a concealed carry permit holder and I don’t think the detectives even asked him if he had another piece in his belt or ankle. Probably explains why he put the gun back in the glove box and went out to walk the dog. “You talking to me?” “You talking to me?”

        tom swift in reply to steveo1. | February 19, 2014 at 9:12 am

        Even his girlfriend said she didn’t know how many guns the guy owned, she lost count

        Why would this be significant?

        I wouldn’t tell a woman how many guns I own. Mainly because most aren’t terribly interested. And as they’re locked up, she wouldn’t be able to count them herself even if she got a strange urge to do so.

        “Even his girlfriend said she didn’t know how many guns the guy owned, she lost count.”

        If someone were to compel ME to accurately recall the number of guns I own, I very much doubt I’d hit precisely the right number. That’s equally true of the large majority of the folks I call friends.

        I can assure you with ABSOLUTE CONFIDENCE that our wives and girlfriends have UTTERLY NO idea how many guns we own, any more than we know how many shoes or handbags THEY own.

        Neither side is exactly hiding the information from the other, but these relationships seem to function most smoothly when such detailed accountings are avoided. 🙂

        –Andrew, @LawSelfDefense

        JackRussellTerrierist in reply to steveo1. | February 19, 2014 at 1:20 pm

        What if he owned 1,000 guns? So what? Other than noting what he ate for dinner one night six weeks before the incident, I can’t think of anything less relevant.

        Phillep Harding in reply to steveo1. | February 19, 2014 at 4:32 pm

        If an hypothetical GF was concerned about how many firearms I owned, she would quickly become an ex GF. It’s just not her business, and I can see so many ways that can go wrong.

    tom swift in reply to Richard Aubrey. | February 19, 2014 at 8:50 am

    As fine a set of wild assumptions, unjustified assertions, and petty bigotries as I’ve yet seen today.

    Look, if the kids were “aggressive” for playing their music loud, anything other than Dunn rolling his window down and turning his am/fm radio up to 10 would be an unlawful escalation of the kids’ aggression.
    You do understand that a kid is dead because Dunn escalated?

      tom swift in reply to Redneck Law. | February 19, 2014 at 9:05 am

      Escalating some kid’s “aggression” is unlawful? Since when?

        Oh, say, when you pull out a 9mm and fire ten shots into a vehicle full of kids.

        Regarding “escalation”: If you and I voluntarily get into a fist fight, you can’t pull out your 9mm and shoot me ten times.

        When the level of force is increased way beyond the initial force, it becomes unlawful. Deadly force is an unlawful escalation to a verbal argument.

          tom swift in reply to Redneck Law. | February 19, 2014 at 9:16 am

          You were talking “aggression”, now you’ve switched to “deadly force”. Quite a jump there.

          Deadly force may indeed be illegal in a particular situation. Generally, it is. But it obviously doesn’t follow that “aggression” is illegal as well, as you asserted.

          “Regarding “escalation”: If you and I voluntarily get into a fist fight, you can’t pull out your 9mm and shoot me ten times.”

          I surely CAN use deadly force to defend myself in such a scenario if you give up fighting with your fists and pull out a knife. Or if the effect of your fists becomes such as able to cause death or grave bodily harm (reference, Zimmerman, George).

          If the attack becomes starts with on-deadly force, but the attacker then escalates to deadly force, that’s effectively a second fight, with a new set of rules.

          This scenario is directly relevant to the Dunn trial, as his claimed necessity for the use of deadly force is that Davis’ conduct escalated from mere threats alone, to threats and display of a weapon, to threats and efforts to bring that weapon to bear against him.

          –Andrew, @LawSelfDefense

          redneck law? according to your theory, in a mutually agreed to fist fightfight, self-defense against attempted murder is a crime. That is just dumb.

          platypus in reply to Redneck Law. | February 19, 2014 at 5:03 pm

          Well, if you were Trayvoning me, I’d shoot until you fell over. If that was ten shots, well, you should have known to fall over on the first one.

          JackRussellTerrierist in reply to Redneck Law. | February 20, 2014 at 12:22 am

          Regarding escalation, Jordan and his buddies had a First Amendment right to respond to other people’s sensibilities by turning their vile, offensive music down and stop disturbing the peace, not turn it up louder and make threats and gestures.

          There’s your escalation. Or is the public supposed to just go cower in a hole until they leave? If Dunn should beware, then why shouldn’t these boys beware when they’ve been informed their conduct is unacceptable to a peaceful society?

    “Loud music, thug or otherwise, coming from a car, is known to be aggression.”

    OK, so ? I’m pretty sure it doesn’t put anyone’s life in danger. And I’m pretty sure it’s not a Capital offense.

    To me it’s common sense – call this racist if you will – but if you’re in a parking lot with four young black men acting obnoxious, I suggest not starting a conflict with them. This applies if you yourself are also black. More so if you’re white.

    I further suggest that if an interaction of that kind is getting confrontational, do not handle it with a bunch of ‘FU’s and such if possible. Call 911 if you like, fine. See if you can find it within yourself to consider it reasonable to simply be elsewhere, fine. Or ignore them, finish your business there, and go.

      I agree with you. My daddy always say, “pick your battles”. Loud obnoxious music while I’m sitting at a gas station for five minutes max is not a battle I’d think worth the time or effort. When I fight, I like to win. So I tend to let the small stuff slide, either because I know I can’t win it anyway or because it’s not worth the effort it would take to win it, and save myself for the rare occasion that something’s worth pitching an all-out battle for.

    Sammy Finkelman in reply to Richard Aubrey. | February 19, 2014 at 10:36 am

    RA> Nobody goes to the trouble of getting extra speakers pointing out the back–as I think was the setup here–so they can hear better.

    RA> It’s done to pxxx off others. It’s why a person alone will go into a store and leave his music blasting in the parking lot.

    I don’t agree woth that. I think it’s based on tghe same principle as going out of your house and leaving the light on. It’s so , so when they get back, it’ll be on right away and they don’t need to wait and turn anything on.

    I think some jurors got hung up over the questions of amounts to “beyond a reasonable doubt.” A possibility also could be that while they thought he was lying about seeing ashotgun, maybe he thought at first there could be pistol.

    People, especially teens, listen to loud music because they like it. Subwoofers aren’t designed to annoy people. They are designed to play low-pitched audio frequencies, or bass, which many people enjoy. Back in the day my band played a show at Gallaudet University which is a school for the deaf. The kids loved it, one of the best audiences ever, they were dancing to the low-frequencies which they could *feel* through the floor. Some of them even came up next to the stage so they could touch the sound system speakers. IOW, some people find listening to (and feeling) bass to be an essential part of music. I don’t even want to imagine a world without the likes of Bootsy Collins or Larry Graham.

      JackRussellTerrierist in reply to gxm17. | February 20, 2014 at 12:28 am

      So, what are you saying? You were in a band, therefore Dunn is guilty?

      Just because you were in a band and understand woofers, tweeters, bells and whistles doesn’t mean that some people who utilize such equipment in very public places aren’t doing it to intimidate and make a statement.

      Maybe you should get out a little more. Apparently there’s a lot going on that you’re unaware of.

        LOL. No. What I’m saying is that anyone who claims that the teenagers were playing loud music to be “aggressive” and annoy people, has no evidence to base such an assumption on. And, IMO, it’s a rather silly assumption. People turn up the volume to enjoy music. And people who like bass install subwoofers because they like the bottom end, not because they want to start a fight.

        The four teenagers in the Durango were acting like normal teenagers—they were listening to loud music and looking for girls. The leaps one must make to turn them into the instigators are extraordinary and, IMO, completely unreasonable.

          SmokeVanThorn in reply to gxm17. | February 20, 2014 at 5:51 pm

          It’s not “what teenagers do.” It’s what certain teenagers do, knowing they can get away with it because ninnies will rationalize their behavior.

    MouseTheLuckyDog in reply to Richard Aubrey. | February 19, 2014 at 12:43 pm

    Correct me if I am wrong, but wasn’t one the minor crimes that Rudy Gulliani cracked down on, the [playing of loud music?

To me, this speaks more to the ever changing attitudes people have towards law enforcement. More and more, people are being touched personally by the criminal injustice system. From lying cops, to prosecutor misconduct, to rogue rulings by the Robed Ones, people no longer trust what is the staple the binds a civilized society–law and order.

What was once “well, if he got arrested he’s probably guilty” is now more and more “well, he’s probably being railroaded”.

From the beat cop to the Supreme Court–if those in the criminal justice system do not stay true to the laws they are sworn to uphold, the result is inevitable. Anarchy.

Interesting. Missed the debate about the reason for attempted 2nd degree being him getting out of car and moving towards the car with the kids while shooting. Makes sense. That 3 ended up for self defense would seem to argue against retrial. At least a little. Assuming that Corey doesn’t make prosecution decisions politically, which we know she does.

“The juror also was adamant that race never became an issue at any time of their deliberations.”

That is great news! Florida is supposed to be this sink-hole of barely suppressed racial animus.

Maybe that is more a creation than a reality.

“When one or more jurors disbelieves guilt, however, compromise is far more difficult.”

In Texas, jury instructions include very strict prohibitions against compromise or bargaining between the jurors. Which I think are often ignored by juries!!!

    “In Texas, jury instructions include very strict prohibitions against compromise or bargaining between the jurors. Which I think are often ignored by juries!!!”

    In Florida, as well. But, human nature being what it will, especially with a jury sequestered since the first day of trial, along with the propensity for some judges to issue multiple Allen charges . . . . eventually people generally do what is necessary to escape.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | February 19, 2014 at 10:06 am

      I also go back to power of the “opinion leader” in the panel, and kinda figure one of the unconvinced must have been that leader in this jury.

      stevewhitemd in reply to Andrew Branca. | February 19, 2014 at 12:10 pm

      Many years ago I was a juror on a murder case in Chicago (young thug knifed a prostitute in his apartment). It took us about 9 hours to find him guilty, and at about the 7 hour mark the vote was 10 to 2. I was one of the two holdouts.

      Now, none of the other jurors “pressured” me — there were no threats, no screams, etc. But I certainly felt pretty darned alone wrestling with my reasonable doubt, as did the other juror.

      The other jurors convinced me in the end. Again, no threats, just a lot of cold reason delivered from about nine to twenty-four inches away. It wasn’t pleasant.

      But I have a healthy respect for what goes on in a jury room now.

      And personally, I don’t think any of it should be reported in the news.

      Gremlin1974 in reply to Andrew Branca. | February 19, 2014 at 7:43 pm

      By “compromise and bargaining I take it that you mean something like; “I will go come down from murder 1 to murder 2 if you will give me attempted murder 2.” Am I right?

      Like I said the only jury I have been on the guy was so guilty that frankly we were kind of wondering why they even needed us.

        “Bargaining” was a poor choice of words on my part, as it implies a tradeoff or quid pro quo.

        I prefer to believe that jurors wouldn’t do THAT–“give me a lesser on this charge but a greater on that charge.” Nobody should be convicted of a greater charge than a juror genuinely believes was proven beyond a reasonable doubt. To do so would be monstrous.

        What I really meant was “compromise,” in the sense of “Well, I really think he’s guilty of M1, but the rest of you 11 jurors thing he’s guilty of only M2, and I clearly can’t change you to my position, so I’ll settle for M2 rather than have the whole trial be wasted effort.”

        –Andrew, @LawSelfDefense

    tom swift in reply to Ragspierre. | February 19, 2014 at 9:23 am

    A law student once told me about a case in which the jury decided guilty or not by flipping a coin.

    I don’t know what state that was in, or if the jury instructions actually specified that random decisions were verboten.

    I suspect a motivated jury can always find a way around the most comprehensive instructions. So maybe it’s best to not give them motivation. That’s perhaps my major problem with the concept of sequestration.

      Gremlin1974 in reply to tom swift. | February 19, 2014 at 7:48 pm

      Yea, I had a good friend on a Jury for a murder trial that when they went back for deliberations a black woman said that “it doesn’t matter to me if he is guilty or not, I ain’t gonna vote to put another brother behind bars.”

      My friend tried to get the foreman to report this so an alternate could be called up, but the foreman, who was also black, refused to do so. They ended up in a hung jury because of that one woman, everyone else voted guilty according to my friend.

      May point being that aberrations of the law and its applications do happen and will continue to happen whether it be flipping a coin or a bias juror who makes it through the selection process, that’s just part of the system we have.

        tom swift in reply to Gremlin1974. | February 20, 2014 at 10:32 am

        Yes, but only if by “system” you mean tolerance of institutionalized black racism. That seems a formula for a thoroughly corrupted system.

        I wouldn’t want to make too much of one incident, but it isn’t just one incident – I’ve heard of this behavior too many times. Although I’ve never heard of one who held out indefinitely; in other cases, they initially vote not guilty, even in murder cases, but then, having established their racist bona fides, seem free to take their jobs as jurors more seriously.

        Incidentally, the coin-flip episode did eventually cause a mistrial.

Years ago, I was a juror on an attempted murder trial.
It got pretty ugly when the vote got to 11-1.
I was sure the holdout would recant when they polled the jury, but he didn’t.

Welcome to the wonderful world of jury trials. Juries are notoriously fickle. They base their decisions on such solid legal grounds as “feelings”. And, their they do not have to provide any justification for their decisions, unlike a jurist.

In this case, there was no evidence that any physical threat to Dunn existed at anytime during the incident. None of the youths exited their car and approached Dunn. There were no firearms found, other than his. There was no witness account of any firearms, or anything that looked like a firearm, in the possession of any of the youths in the car. There was nothing, other than the word of a man who had fired nine rounds into a car, most as it attempted to leave, to suggest that any of the youths possessed a firearm. Yet, a bunch of untrained people, lacking any knowledge of the law and seemingly unable to apply logic to a problem, “decided” that all these negatives did not constitute sufficient evidence to cast reasonable doubt on Dunn’s statement that a firearm existed in the possession of the youths involved. How do you prove a negative?

There is nothing new in the way this jury decided the case. With the jury system, you get what you pay for; the guilty can go free and the innocent can be convicted.

    tom swift in reply to Mac45. | February 19, 2014 at 1:18 pm

    and seemingly unable to apply logic to a problem

    You seem to think that “logic” can generate useful evidence as needed to justify your prejudices.

    That’d be great. No jury need consist of more than one person; his command of logic would overcome all obstacles.

    Gremlin1974 in reply to Mac45. | February 19, 2014 at 7:58 pm

    “Yet, a bunch of untrained people, lacking any knowledge of the law and seemingly unable to apply logic to a problem, “decided” that all these negatives did not constitute sufficient evidence to cast reasonable doubt on Dunn’s statement that a firearm existed in the possession of the youths involved.”

    Possibly be cause the standard is that it be proven ‘BEYOND’ a reasonable doubt. Perhaps they thought that it was a real possibility that a firearm was stashed somewhere, I don’t know.

    Also, he fired 10 shots, only 9 hit the SUV, just saying.

    Now before you go all flames and damnation on me. Personally, from the evidence I saw and heard in the trial, with the Jury instructions that I read, I would have lobbied for Manslaughter, but that is only my opinion.

I’ve been a member of two juries in Florida: one a civil case another an attempted 1st degree murder case.

Both juries had 8 members who listed to the trial and 6 who were chosen as the ‘final’ jury. In no case did we know who the ‘finalists’ (so to speak) were until after the jury instructions were read. I was a ‘finalist’ in both cases, in one I was the jury foreman.

In the experience I had the jurors did not pay attention or remember about 50% of what was said/presented at the trial in that only 1 or 2 points seemed to resonant with most/all jurors in the deliberations.

In my experience the jury zeroed in on these few points and then it became a matter of convincing others/ being convinced by others. I always laugh at the CNN etc etc comments about ‘the jurors must really be carefully weighing all the testimony’ because 99% of that testimony is not even considered/remembered.

Tim Lookingbill | February 19, 2014 at 3:01 pm

Dunn’s options other than firing also include showing his gun to Jordan Davis to show Dunn’s about to meet force with equal force before shooting. Wonder why juror #4 didn’t mention that option.

Also not pointed out is the fact even as the SUV was backing out to get away from Dunn’s hail of bullets, a lengthy pause in Dunn’s gunfire occurred as the SUV took time to turn in the opposite direction for Dunn to continue firing at the rear of the SUV with…wait for it…

…NO RETURN FIRE EVER FROM THE SUV! Not one bullet from the SUV was fired back.

Why wasn’t that logic considered?

    Gremlin1974 in reply to Tim Lookingbill. | February 19, 2014 at 8:11 pm

    “Dunn’s options other than firing also include showing his gun to Jordan Davis to show Dunn’s about to meet force with equal force before shooting.”

    Actually, this is not something that you do, ever, in a lot of states it is called brandishing a weapon and is a crime in and of itself. Not to mention if someone is pointing a gun at you are you just gonna wave your gun around and basically say; “I gonna shoot you back!”? Your assertion isn’t even reasonable much less logical. Not to mention that most concealed firearms instructors I know train you not to draw unless you are going to shoot.

    As far as your “No return fire assertion” apparently you missed in the law that the threat doesn’t actually have to be real, it just has to be perceived as real such that a reasonable person would believe it to be real. So basically, just because there was no return fire from the SUV really doesn’t prove anything, especially since the person who was supposed to have had the shotgun was already shot himself by the time the SUV drove away. Check out the Jury instructions and actually read all the way through them, I think you might find it enlightening.

Am I missing something here or were the jury members improperly instructed on the legal aspects of self-defense laws? If the 3 jurors believe that Dunn acted in self defense and the 11 didn’t, isn’t the only legitimate, legal outcome a hung jury on ALL counts?

Self defense is an affirmative defense against all charges. The state either disproved Dunn’s self defense claim entirely or they didn’t.

The state can’t have disproved self defense in regard to the lesser charges while at the same time failing to disprove self defense in regard to the murder one charge.

He either acted in self defense, and cannot be found guilty of any charge, or he did not act in self defense and the jury needs to decide which crime he is guilty of.

To me it sounds like the jurors negotiated, outside the law, to allow lesser charges to stand.

@LawSelfDefense is this a reversible error?

-bsd

    I’m afraid you’re missing something.

    The jury was free to consider each of Dunn’s three bursts of fire as distinct uses of deadly force against others. So they would be free to make an independent determination of self-defense for each of those three cases.

    For our purposes we can pretend there were only two bursts of fire–the first, into Davis’ door and into Davis, killing him and giving rise to the murder charges; and the last, fired at the fleeing SUV.

    That last burst of fire is the least likely to be characterized as self-defense, and is also more than sufficient to form a rational basis for the three attempted murder convictions and the missiles conviction. For this to be the case the jury necessarily would have to had to believe that the State had disproved Dunn’s claim of self-defense beyond a reasonable doubt with respect to that use of force.

    The first burst of fire, the one that killed Davis, and gave rise to the murder charges, would be considered quite separately. Here it appears that three jurors concluded that the State had NOT disproved Dunn’s claim of self-defense beyond a reasonable doubt. Given that and following Judge Healey’s instructions they could not find Dunn guilty of any of the various murder charges.

    Hence the hung jury on the murder charge, and why self-defense could prevent the conviction there but not on the attempted murder charges.

    –Andrew, @LawSelfDefense

Andrew, is this part of the Florida model jury instructions the applicable defense for the attempted murder charges?

“The attempted killing of a human being is excusable and therefore lawful under any one of the three following circumstances:

1. When the attempted killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

2. When the attempted killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3. When the attempted killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel and unusual manner.”

    I’m sorry, but the whole Florida justifiable use of deadly force jury instruction is lengthy and convoluted, and I just don’t have time today to parse it out for you.

    Keep in mind that the principles governing the use of deadly force in self-defense would apply to ANY defensive use of deadly force. They don’t magically change if the charge is murder 1 or murder 2 or attempted murder 1 or attempted murder 2.

    Here is the relevant jury instruction in its entirety: FLJI 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE http://is.gd/y3M5Rs

    I recommend a bathroom break before getting started.

    –Andrew, @LawSelfDefense

      Wolverine in reply to Andrew Branca. | February 19, 2014 at 7:51 pm

      Thanks for the link Andrew. I was attempting to find what legal defense was available on the attempted murder charges and that is the closest I’ve found.

      Specifically, Dunn claims he was acting lawfully using lawful means (self defense against Davis) using ordinary caution (under the circumstances) without any unlawful intent when shooting at Davis’ companions. Therefore his actions were excusable and lawful and not attempted murder.

      If this is correct I think the jury was confused when they were asking their questions Saturday and the Judge’s answers didn’t help clear up that confusion. In the end, the Jury may have been following this instruction and reasonably determined that the final shots didn’t meet the requirements, but I wonder if the judges answers by omitting other possible defenses to the attempted murder charges might be viewed as misleading on appeal.

        tom swift in reply to Wolverine. | February 20, 2014 at 10:59 am

        Why is this a problem? The shots which were fired specifically at Davis are both practically and legally distinguishable from the shots fired at the other three. The shots at Davis may or may not have been justified on SD grounds; but the shots at the other three more definitely were not justified on SD grounds.

        Self defense means that you can, among other things, shoot at your attacker. But it does not mean that you can shoot at his friends.

          Wolverine in reply to tom swift. | February 20, 2014 at 7:23 pm

          It may make a difference because, apparently, the law excuses one from shooting at other persons even if you are not acting in lawful SD against them (see the jury instruction I quoted up thread).

          So person A is pointing a gun at you, you shoot in SD against person A, that by shooting at person A you also unavoidably shoot “at” person B sitting next to person A is excusable and therefore legal even if you had no SD justification for shooting at person B (provided the jury finds that your actions against person B were due to accident and misfortune as stated).

          Now maybe Dunn can claim he never shot “at” Tevin Thompson and the jury would need to consider whether or not the shots came close enough to Thompson to be considered “shooting at” him. A pretty tough defense – how many radians away from Thompson does Dunn have to shoot to avoid shooting “at” Thompson?

          It seems like a better defense to agree that when shooting at Davis (in SD) he ended up shooting at Thompson by accident and misfortune.

I don’t like to brag but what the heck, I’ll make an exception this time.

I called this 9-3 on 2/11/14 at 10:26 am at:

https://legalinsurrection.com/2014/02/live-coverage-loud-music-murder-trial-day-5/comment-page-1/#comment-501382

Forget the oohing and aahing – just send moolah. 🙂

I wonder if a stronger prosecutor could have fared better here. Granted I missed a lot of the trial, but from what I did see Wolfson and Guy were less than impressive. Are not some trial outcomes influenced by those arguing the case?

    platypus in reply to DennisD. | February 19, 2014 at 7:59 pm

    You betcha. Like that fool who insisted that OJ try on the bloody gloves in front of the jury.

    Gremlin1974 in reply to DennisD. | February 19, 2014 at 8:19 pm

    Actually, ASA Wolfson was very impressive for a young attorney in her first major case as a prosecutor. Not to mention she is very easy on the eyes.

    Guy is just a buffoon, imho.

    Actually, I thought that Corey did a fairly good job as lead in this case. She will always have my ire from her behavior surrounding the Zimmerman case, but I am willing to give credit where credit is due.

      Pretty much what I would have written (and have, probably, somewhere or another). 🙂

      –Andrew, @LawSelfDefense

        Gremlin1974 in reply to Andrew Branca. | February 19, 2014 at 8:50 pm

        Yep, but we seem to have a tendency to agree on most things it seems.

        Maybe being the lead/managing attorney is just Corey’s forte. Frankly, I think Guy’s more subdued attitude came from the fact that he really couldn’t yell obscenities at the top of his lungs in this trial. That and apparently his favorite playmate Bernie got left at home.

    tom swift in reply to DennisD. | February 20, 2014 at 10:45 am

    I have to agree, I was distinctly underwhelmed by both Guy and Wolfson at all points of this trial. (Yes, I know, it’s early in Wolfson’s career as a prosecutor – and it was very obvious.) The only aspect of Corey’s performance that was positive is that she didn’t live down to her reputation as an expensive thug.

It is not about race? I believe the juror, but I do have food for thought:

“Even in states without “Stand Your Ground” laws, the numbers are stark; 29.3 percent of white-on-black shootings are ruled justifiable, while only 2.9 percent of black-on-white shootings are. But in states that have enacted “Stand Your Ground” laws, the situation is worse: 35.9 percent of white-on-black shootings are ultimately deemed to be self-defense. In the reverse situation, black-on-white shootings, only 3.4 percent of cases have ended with the same verdict.”

The quote is from http://www.theatlanticcities.com/politics/2013/07/its-not-just-zimmerman-race-matters-lot-stand-your-ground-verdicts/6195/

I didn’t vett the politics of the author of the study. Maybe there are perfectly good reasons for that alleged disparity described in the study or the study is bogus. You guys can argue your a-$$’es off (or not). I really don’t care.

Personally I think it should take more than just saying you saw a gun to win a SD case. I bet it would take a lot more if the defendant was black. So even if race is never mentioned, it doesn’t mean race isn’t there. Maybe it just doesn’t get said out loud anymore. Maybe code words get used or people just think it to themselves. I do know that all I had to do was suggest there was an elephant in the room and I got jumped on. That make me certain that there was one. The lady doth protest to much.

It took over a hundred years for the 13th, 14th and 15th Amendments to start to be the law of the land. Maybe it will take another hundred to finish the job.

Thank you Andrew. I think you did a masterful job. I would love to stick around and have a thoughtful discussion, but I don’t think I am can be heard. I am dismissed as troll, rather than a reasonable person with a somewhat different point of view. So that makes it a waste of time.

    Semper Why in reply to Rational. | February 19, 2014 at 11:20 pm

    For someone who “won” a self-defense case, Dunn is going to be spending a couple decades behind bars. If that’s winning, no thank you.

    “I bet it would take a lot more if the defendant was black. So even if race is never mentioned, it doesn’t mean race isn’t there.”

    The problem with statements like this is it kind of begs the question: What sort of racial thumb on the scales of justice do you propose?

    Milhouse in reply to Rational. | February 20, 2014 at 3:30 am

    Hey, did it never occur to you that maybe 30-35% of white-on-black shootings, and ~3% of black-on-white ones, are found to be justified, because that’s about how many are justified? Blacks commit a lot more violent crimes per capita than whites do; you can argue all you like about the reasons for that, but you can’t dispute that it’s a fact. And while the vast majority of criminals attack people who look like them, it’s also a fact that black criminals attack white victims a lot more often than white criminals attack black victims. So it makes sense that white people will defend themselves from black criminals more often than black people will defend themselves from white criminals.

    Also bear in mind that, mostly for reasons of economics and geography, decent black people are probably less likely than decent white people to own the means of defending themselves. The ones who don’t, don’t show up in your statistics. Gun ownership among black people is likely to be weighted more towards criminals than it is among white people. And therefore black people who end up shooting white ones are more likely than white people who shoot black ones to be doing so in the course of a crime.

If you read the ABC news report on this juror — http://abcnews.go.com/US/juror-loud-music-trial-wanted-murder-conviction/story?id=22571068 — it says that the 9-10 members of the jury who did not believe that Dunn acted in self-defense believed that his “options” which could have avoided the confrontation altogether, such as rolling up his window, putting his car in reverse, or simply ignoring the loud music, bore on the question of whether of he was facing an eminent threat: “‘[The jury instruction] said if he believed that he had an eminent threat to himself or his fiancee, so that was a thing that those two folks believed – he was frightened and there was no other option for him in regards to Mr. Davis,’ Valerie said. ‘The rest of us were 100 percent sure, you didn’t have to react [with gunfire], you could have had another option. … We looked at a lot of evidence – and myself, it was where the gunshots were, the timing. Could he have had other options? To me, [the shooting] was unnecessary.’ … Valerie believes that Dunn could have rolled up his window, put his car in reverse, or simply ignored the loud music blaring from the other car.”

That means that 9-10 members of the jury believed that Dunn had an obligation to retreat from the possibility of a confrontation in order to have a right of self-defense. That’s very different from the obligation to retreat — the one done away with by Stand Your Ground laws — once the necessity of self-defense has arisen.

So if all 12 jurors had felt this way and convicted Dunn, could that have been a form of reverse jury nullification, one in favor of prosecution, rather than against it? Or would it have just been a case of the jury not just deciding the case on what they felt was right, rather than following the instructions/law?

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