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Dunn Juror Doubles Down on Premeditation Standard

Dunn Juror Doubles Down on Premeditation Standard

“I gave a promise that I would come back with a judgement according to the law.”

Wayne Davis, the jury foreman in the Michael Dunn re-trial that found Dunn guilty of the first-degree murder of Jordan Davis, was interviewed for the first time this past week by News4Jax.

Remember Dunn? He’s the one charged with 1st degree murder for the shooting death of 17-year-old Jordan Davis. The State believed Dunn shot Jordan out of anger over Jordan’s loud music, whereas Dunn claimed he shot in lawful self-defense. The State’s argument won out, raising questions about lawful self-defense vs. premeditation standards in modern criminal law.

You can read a transcript, and watch a video of the interview (also embedded at the bottom of this post), here.

What particularly caught my eye from this interview was the considerable weight the jurors placed on the many physical steps Michael Dunn took in retrieving, preparing, and brandishing his handgun, and how the jury concluded as a result that Dunn acted with premeditation.  This finding of premeditation was necessary in order for the jury to unanimously find Dunn guilty of first-degree murder, as opposed to second-degree murder or manslaughter.

As Wayne Davis, jury foreman, put it in the interview:

We got instructions from the judge on what premeditation was, and we included, in some of the other ones, we never knew there was no time limit on premeditation, it can be three weeks or it can be three seconds. And from that, from the judges instructions, how to determine it was premeditated murder. . . . From the judge’s instructions of what premeditation was, it really came down to the all the steps he had to take to get to the gun, turn around and shoot that gun. They said there was no time limit for it, so we as a jury actually counted the amount of steps to get to that gun. One, reach for the glove box. Two,  open the glove box. Three, reach in. Four,  pull it out. Five,  pull it out of the holster. Six, cock it. Seven, turn around and shoot. All that is premeditation. Pretty much from that I had to render first degree. That’s the law, whether I agree or not, whether I believe that or not, that is our law.  I gave a promise that I would come back with a judgement according to the law. (emphasis added)

The emphasis placed on these many steps is mirrored in arguments made to them by Assistant Prosecutor John Guy, as I noted in Legal Insurrection’s coverage of Dunn’s trial:

Consistent with the state going for 1st degree murder, and barring that 2nd degree murder, Guy emphasized the several concrete steps Dunn had to take in order to bring fire upon the Durango — open glove compartment, remove pistol, chamber a round, grip the gun with both hands, fire, fire again, fire again, etc. — all presumably to set the hook for premeditation and first degree murder. In addition, he emphasized Dunn’s angry use of deadly force violence in response to being, as Guy put it, merely disrespected, to set the hook for malice necessary for second degree murder. (emphasis added)

 

I leave for after-class discussion whether this suggests that certain tactical options (e.g., already having a round chambered) may mitigate against this sort of legal attack.

You can watch the full interview here:

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UPDATE [2/17/15]: I can see from the comments that there’s some misunderstanding about the role of premeditation in the Dunn case (perhaps fostered by my “trick question” for the “class). The issue of premeditation is relevant only insofar as it controls what level of unlawful killing in which Dunn engaged (first degree murder, second degree murder, manslaughter). It has nothing whatever to do with whether he acted in lawful self-defense. Had the jury believed Dunn acted in lawful self-defense, then his premeditation in acting in lawful self-defense would itself have been entirely lawful, and they would have acquitted him. In order to get to a guilty verdict on any degree of unlawful killing, the jury first had to conclude that Dunn’s claim of self-defense had been disproven beyond a reasonable doubt.  That analysis is independent of premeditation–indeed, as commenter sequester notes, self-defense is an inherently deliberate act that necessarily requires premeditation.

–-Andrew, @LawSelfDefense


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Comments

” One, reach for the glove box. Two, open the glove box. Three, reach in. Four, pull it out. Five, pull it out of the holster. Six, cock it. Seven, turn around and shoot. All that is premeditation.”

So, if the circumstances were different and someone with a knife was approaching me, would the same jury consider I acted with premeditation by One, removing my firearm from its holster, Two, thumbing off the safety, Three, assuming a proper grip, Four, bringing the firearm up and lining up the sights, Five, pulling the trigger? All with the understanding that you’re merely trying to stop the guy with the knife, not kill him?

I’m not saying their decision was wrong… but their using the proper steps to deploy a firearm as proof you had premeditated intent to kill someone is wrongheaded.

    Walker Evans in reply to Sanddog. | February 17, 2015 at 11:22 am

    My thoughts exactly. The steps noted are nothing more nor less than those necessary to retrieve a gun stowed in the glove box if you find yourself in extremis. I’m no lawyer but this seems like a reversible decision on its face.

    sequester in reply to Sanddog. | February 17, 2015 at 12:32 pm

    In general, when you raise the affirmative defense of “self-defense” in a homicide you must admit to knowingly killing someone to save yourself or another from death or grave bodily harm. So yes, you are in most cases admitting to pre-meditation.

      Sequester’s got it right. Here’s an update I just added to the end of the post:

      UPDATE [2/17/15]: I can see from the comments that there’s some misunderstanding about the role of premeditation in the Dunn case (perhaps fostered by my “trick question” for the “class). The issue of premeditation is relevant only insofar as it controls what level of unlawful killing in which Dunn engaged (first degree murder, second degree murder, manslaughter). It has nothing whatever to do with whether he acted in lawful self-defense. Had the jury believed Dunn acted in lawful self-defense, then his premeditation in acting in lawful self-defense would itself have been entirely lawful, and they would have acquitted him. In order to get to a guilty verdict on any degree of unlawful killing, the jury first had to conclude that Dunn’s claim of self-defense had been disproven beyond a reasonable doubt. That analysis is independent of premeditation–indeed, as commenter sequester notes, self-defense is an inherently deliberate act that necessarily requires premeditation.

      –Andrew, @LawSelfDefense

        Gremlin1974 in reply to Andrew Branca. | February 17, 2015 at 4:51 pm

        “That analysis is independent of premeditation–indeed, as commenter sequester notes, self-defense is an inherently deliberate act that necessarily requires premeditation.”

        This may sound like a silly question and I am probably over thinking it. But since Self Defense requires premeditation, i.e. actually wearing a firearm etc. etc., doesn’t that mean that the prosecution could try to use the fact that you carry for self defense as evidence of premeditation? Which I guess is what they did in the media with Zimmerman, but if it has no time limit, that just seems strange to me.

      Sanddog in reply to sequester. | February 17, 2015 at 2:46 pm

      I’m still not buying premeditation being counted as the process of firing a gun. If you’re using it in self defense, the intent is never to KILL the other person, it’s to stop them from harming you. If they die in the process, that’s just the result of their actions.

    JackRussellTerrierist in reply to Sanddog. | February 17, 2015 at 7:18 pm

    It demonstrates, once again, the abject loss of critical thinking skills in our society.

    These people also vote.

“I leave for after-class discussion whether this suggests that certain tactical options (e.g., already having a round chambered) may mitigate against this sort of legal attack.”

I’m going to say “Nope”. The argument will be that it is “premeditated” to strap the gun on before leaving the house.

At least someone will try and make that argument, and some people like these jurors (who really REALLY reached for that premeditation standard) will buy it.

    JackRussellTerrierist in reply to Vancomycin. | February 17, 2015 at 7:20 pm

    That’s been tried and failed, but that will never stop leftist prosecutors from trying it again and again. The dumber the jurors, the more likely it is to succeed.

    When you go to your neighbor’s house to complain about his barking dog, don’t take your pistol.

Char Char Binks | February 17, 2015 at 11:20 am

That’s interesting, as Zimmerman having a bullet already chambered was used against him by many commenters in the media and online, as did the lack of a safety on the gun, and those things definitely saved him a couple of steps.

    I never carry a firearm unless I have a round chambered. Bottom line, it takes a finger pulling the trigger to discharge a round. In a good firearm in working condition, your brain and your finger are the safety.

      Gremlin1974 in reply to Sanddog. | February 17, 2015 at 4:54 pm

      Without a round chambered then a handgun is a very expensive and unwieldy club, especially in a situation of imminent threat.

    Phillep Harding in reply to Char Char Binks. | February 17, 2015 at 1:00 pm

    On the practical side, the Kel-Tec P-11 I shot has such a horrible trigger, even after being touched up, that a safety is really redundant.

    Then again, the Hi-Power mag disable device is considered a safety by those who have not thought it through.

    Law and reality only intersect on occasion with firearms.

It seems that according to this school of thinking, there are only two kinds of weapons which might be used for self defense –

1. improvised (that is, non-weapons opportunely pressed into service – golf clubs, kitchen knives, chain saws, etc), or

2. dedicated (things made as and intended to be used as weapons, such as guns, swords, Bowie knives, etc).

And further, this train of thought would consider any use of dedicated weapons to always be “premeditated”, because the simple act of having such a thing available itself implies premeditation.

This conclusion is very peculiar.

Specific intent should figure into the equation somewhere. Preparation for an emergency is not itself intent to cause or even survive an emergency. Had Dunn put his pistol in his car with the definite plan to shoot Davis, that would obviously be premeditation. Or had Dunn had an intention of shooting somebody that day, that would also be premeditation. But taking precautions to deal with a vague emergency or threat which might or might not ever happen is obviously a different matter.

where as vermin premeditates the hell out of an attack, but society doesn’t attribute responsibility to single celled organisms.

Sammy Finkelman | February 17, 2015 at 12:37 pm

Maybe the juror put it wrong.

The fact that it took him so long, meant there was a chance to reassess the situation.

Imagine somebody is driving and they think another car is going to change lanes, or they see someone walking and they imagine that person is going to stop.

If as the driver moves, something they expect to happen, isn’t happening, or something they don’t expect to happen, does, and there’s a crash, and someone is killed, it seems to indicate a premeditated intent to hit the other person or the other car, which is reinforced by being angry at the other person.

This is why lawyers are trained to argue questions every-withcha-way.

Something like ‘premeditation’ seems to most of us to have a “plain meaning”, and a premeditated murder takes on a higher and more terrible meaning. Because someone…in cold blood…deliberately planned to kill another human being without any of the usual justifications.

But a trial attorney will challenge your understanding of terms and whole concepts, and sometimes quite rightly.

As a matter of pure forensic argument, I can argue the chambered round in your sidearm shows you premeditated a killing. By the same token, I can argue your use of your sidearm with the chambered round was done in the extremity of your life being under an immediate threat.

You can’t blame a lawyer for making an argument you don’t like. That’s part of their job. You don’t have to buy it.

Here, this seems a closer matter than some of you think. When does an emergency stop and the ability to take a second to consider your conduct begin? The jury…I think rightly…concluded that Dunn had the time under the circumstances to arrest his sequence of actions under the actual threat. When he had his pistol in his car, and his phone, did his next actions show he had premeditated (thought about) using deadly force regardless of the reasonable threat. The jury may not be able to articulate that, but it seems they reached that conclusion.

    Everybody hates “tricky lawyers” until they need one on their side.

      Vancomycin in reply to Amy in FL. | February 17, 2015 at 1:13 pm

      I accidentally upvoted this.

      You wouldn’t NEED a “tricky lawyer” if lawyers didn’t crap over the plain meaning of words on a constant basis.

      You wouldn’t NEED a “tricky lawyer” if laws were written in clear, plain language.

      You wouldn’t NEED a “tricky lawyer” if the government were doing even only half of what it was supposed to be allowed to do.

        If wishes were horses, then beggars would ride. Me? I want the trickiest lawyer this side of Tricksterville, one who will pull out all the stops to give me the most effective representation available under the law 🙂

        The Friendly Grizzly in reply to Vancomycin. | February 18, 2015 at 10:35 am

        I am cynical as hell. Today’s courtrooms have nothing to do with guilt or innocence. It has to do with whether the prosecutor does his dance better than the defense. When the arguments are done, the jury holds up their number cards. Whomever gets the highest count wins. Justice is not a factor.

        For that reason, whether innocent or guilty, I want the trickiest, slimiest, nastiest lawyer I can get. If my lawyer cannot dance better than the prosecutor, my being innocent means nothing. I am going to jail because the jury liked the prosecutors dance steps better.

    MouseTheLuckyDog in reply to Ragspierre. | February 17, 2015 at 2:44 pm

    I have a severe problem with this process of “definition”.
    To use the example here of premeditation.
    There are two possible cases: this law was on the books in the 1940s, and it wasn’t.

    In the first case, premedatition was interpreted very differently. So that the laws people enacted then are different from the laws as applied now.

    In the second case, the law was written/rewritten by the legislature. Granted they probably had input from lawyers, but those regular citizens that watched the process and voted for people based on how they would and did carry out the process, voted based on their perception.

    This “redefinition by lawyer” is a troubling thing that smells of “to find out what a law says, we have to pass”, and I wish someone would take a look at how fix it. Otherwise Democracy is meaningless.

    Gremlin1974 in reply to Ragspierre. | February 17, 2015 at 5:12 pm

    That has been my understanding of premeditation is if you have time to “consider” your actions and chose to take a different action. Of course there is a time when you can’t stop anymore, once the trigger breaks you can’t take the bullet back. Dunn had multiple opportunity to avoid having to shoot before he even moved for the gun, stand your ground not withstanding. I would have just locked up the car and gone into the store and never said anything to the guy with the loud music.

    This is also why I think “warning shots” don’t really make sense in a practical situation. If you have time to fire a “warning shot”, then how can the threat be imminent?

Sammy Finkelman | February 17, 2015 at 12:41 pm

Nobody is on automatic pilot all that time, that’s the point.

Even if Dunn started off believing that Davis was going to shoot at him, the length of time he had to take to shoot was enough to disabuse him of that idea.

Everyone agrees there was in fact no danger to Dunn.

    Gremlin1974 in reply to Sammy Finkelman. | February 17, 2015 at 5:15 pm

    Agreed, if the kid has had a “shotgun” then Dunn would be talking it over with St. Peter and Jordan Davis would be on trial for murder.

    Of course what really did Dunn in was his actions after the first volley of shots. Everything that Dunn did after that first volley could be used as a classroom example of what not to do.

      kermitrulez in reply to Gremlin1974. | February 17, 2015 at 6:53 pm

      You’re assuming that the kid would’ve ever fired that shotgun or even had an idea how it worked. Or that it fired correctly. If the kid had a shotgun and was fumbling with it, and your wife was about to come out of the store, your actions of pulling the firearm out of the car and shooting the kid are more reasonable. Or maybe you just wait for the kid to figure out how to disable the safety and then you won’t have to worry about John Guy, Angela Corey, or some other prosecutor’s lack of ethics when they persecute you.

      If, of course, you actually thought you saw the kid trying to work a shotgun.

        “One, reach for the glove box. Two, open the glove box. Three, reach in. Four, pull it out. Five, pull it out of the holster. Six, cock it. Seven, turn around and shoot. All that is premeditation.”

        Well, damn. Under that logic, it’s not a far stretch to say that not only is carrying a gun considered “premeditation”, but look at all the steps it takes to draw and fire in self-defense:
        1. Move aside cover garment.
        2. Move aside other garments.
        3. Grasp the gun.
        4. Make sure your grasp is a good firing grip.
        5. Make sure your trigger finger is extended along the slide, for safety.
        6. Disable any retention devices on your holster.
        7. Disable any secondary retention devices on your holster.
        8. Disable any tertiary retention devices on your holster.
        9. Prepare to pull up on the gun to remove it from the holster.
        10. Send the mental command from your brain to your arm and shoulder muscles to pull up on the gun to remove it from your holster.
        11. Pull up on the gun to remove it from your holster.
        12. Continue pulling up on the gun to clear your holster.

        12 steps just to get the gun out of the holster! I could do this all day. Just wait until I get to the “smooth, even trigger pull” part (that could go for 20 more steps, alternating between “Verify your sights are still on target and you still need to shoot.” and “Continue pulling the trigger back in a smooth, even motion.”)!

          (Note: This should have been a standalone comment. For some reason it’s up here.)

          Char Char Binks in reply to Archer. | February 18, 2015 at 2:28 pm

          You’re right. Just as “motion is impossible, because an object in motion must reach the half-way point before it gets to the end” (Aristotle, Physics 239b11-13), so then must second-degree murder be impossible. There is an infinite number of steps between the impulse and killing, and unlimited occasions for reflection, so it’s premeditated.

          Char Char Binks in reply to Archer. | February 18, 2015 at 2:37 pm

          More importantly, each of those steps taken requires thought (that is, premeditation).

If the jury had already discounted self-defense (and let’s face it, the self-defense angle was always pretty shaky here) and was deciding between first-degree murder and second-degree murder or manslaughter, I guess it makes sense to decide whether the killing showed aspects of premeditation or not.

It would be a worry though if a real case of self defense, say against a would-be carjacker smashing my passenger side window with a crowbar at a dark intersection with my kids in the back, got pegged “first degree murder” just because it had taken several steps for me to reach down, get my gun out of my handbag, etc etc. (okay, actually I’d probably try to drive out of the situation first even though florida isn’t a duty-to-retreat state, but maybe that’s just me. but still)

    n.b. comment submitted before branca’s update….
    or as emily litella would say, “nevermind!”

    Ragspierre in reply to Amy in FL. | February 17, 2015 at 1:19 pm

    I think a good defense lawyer would make this arguement…

    Yes. My client “premeditated” legal self-defense. She planned to defend her own life and that of her children. She never knew what form that threat would take. But she did wisely prepare for an event she hoped could never happen to an inoffensive, law-abiding mom. She never could have imagined the face or form of the man who attacked her and her children with a deadly weapon, intent on crime and uncaring about the human life it threatened. So was there “premeditation” by my client? Of course. The kind of “premeditation” our laws approve. The same “premeditation” you see in this courtroom in the person of that armed bailiff over there. The same “premeditation” you employ by having a charged, inspected fire extinguisher in your kitchen. All for exactly the same purpose…protecting what is right and innocent from unknown threats.

justadumbcitizen | February 17, 2015 at 12:59 pm

If SD is an affirmative defense, why would defendant argue against the prosecution’s line of questioning? (What follows does not apply to the Dunn case. I’m surprised the jury took that long :D)

Defendant: Damn right, Counselor, I made each and every one of those decisions because I had the reasonable belief my life was in imminent danger of grave bodily harm or death. I also have been well trained enough to know that the assailant had the ability, opportunity and had demonstrated jeopardy, and that I had done nothing to provoke the episode, had no duty to retreat, or alternatively, was unable to do that in complete safety.

Given my training I was able to come to that conclusion within a reasonable degree of certainty such that each of the steps you have outlined were all reasonably carried out as a natural consequence to the deadly threat posed to me by the assailant. Moreover, because I was well skilled in deploying those steps, I ensured that innocent people, geographically associated with the assailant’s lethal attack on me, were as protected from harm as they could be. And, Counselor, as you know, that behavior on my part was actually sparing the assailant of felony murder charges in the event that he survived but an innocent was killed. 😀 😀 So F you, Pros…

Char Char Binks | February 17, 2015 at 2:27 pm

The juror was right. To prove premeditation, he had to consider Dunn’s thought process. Since he can’t read minds, he can only base his decision on Dunn’s actions. Since the shooting didn’t happen in an instant, but through sequence of actions, and the shooting was not lawful self defense, he was right. There didn’t need to be a minimum amount of time to premeditate, but Dunn’s actions showed his state of mind. Without a confession of guilt, there would probably be no other way to prove premeditation in this case.

Sorry, I still don’t buy premeditation. It seems to me premeditation would require he went to the store planning to kill someone.

    Char Char Binks in reply to Roux. | February 17, 2015 at 4:14 pm

    So if he decided to kill someone AFTER going the place where he ended up killing, that means he didn’t premeditate it? There’s no required place, specific action or type of action, or span of time needed to prove premeditation.

      kermitrulez in reply to Char Char Binks. | February 17, 2015 at 6:47 pm

      If that were the case, and the simple act of killing someone is the criteria for first degree murder, then why have a second degree murder statute? At some point In a crime of passion, the assailant executes the mechanical steps in the exact same way that Dunn did.

        Char Char Binks in reply to kermitrulez. | February 18, 2015 at 12:33 pm

        You’re right. You changed my mind. Dunn didn’t set out with the intention of murdering anyone, but he lost his temper and shot Davis. It was clearly an impulsive killing. Dunn committed second-degree murder, but his victim was a black teen, and this happened post-Trayvon, so he got first degree.

Wait a minute, wait a minute… Before all you lawyers with your fancy JD degrees git to opinionatin’ and pontificatin’, the salient detail has been left out of consideration:

What kind of music was the victim playing so loudly?

“One, reach for the glove box. Two, open the glove box. Three, reach in. Four, pull it out. Five, pull it out of the holster. Six, cock it. Seven, turn around and shoot. All that is premeditation.”

This is a great statement, especially when you consider that defenders of Marissa Alexander want to conveniently ignore that she took all of these steps, plus had to move through 3 doorways, 2 rooms and a car door, before returning all that way to actually “fire a warning shot” at her husbands head, LMAO. Why wasn’t this crazy woman charged with attempted murder like she should have been.

    randian in reply to Gremlin1974. | February 17, 2015 at 5:04 pm

    You already answered: woman. Women are held to an entirely different and very lax standard when it comes to acts of violence.

    MouseTheLuckyDog in reply to Gremlin1974. | February 17, 2015 at 5:31 pm

    What Marissa Alexander’s defenders have ignored is that she was initially offered three years, then offered it again and took it the second time. And is therefore guilty.

Are judges required ti inform juries of their right of nullification?

Several have noted how outlining all the steps to fire a weapon to show premeditation is just good lawyering and appropriate trickery. I would toss out the quaint notion that such trickery and slick lawyering in defense is one thing. However, such slickness is not appropriate for the DA who is to seek justice for the people, not a maximum win for his own belt.

So logically, in the extreme, the moment someone buys a gun they have set themselves up for premeditated murder in the first if they use that gun in self defense.

Sorry, I ain’t buying it.

Dunn was perhaps guilty for other reasons, but not this one.

    Indeed, you shouldn’t “buy it,” because that’s not how it works. 🙂

    –Andrew, @LawSelfDefense

      I know Andrew, but this tactic by the prosecution was bad enough to make one think that some prosecutor in the future will go to this extreme.

      In your text above:

      The Juror said “One, reach for the glove box. Two, open the glove box. Three, reach in. Four, pull it out. Five, pull it out of the holster. Six, cock it. Seven, turn around and shoot. All that is premeditation. Pretty much from that I had to render first degree.”

      I have to throw the yellow flag on this.

      One could easily envision these very same steps being involved in a true case of self defense, so these steps alone do not equal premeditation.

      Consider the Walker case right here in Maryland, and covered by you right here on LI. Very, very similar from this perspective: Did not Walker retrieve a gun from inside the car to confront Harvey when he approached? As you know, Walker got off, which in a ‘Duty to Retreat’ state like Maryland was pretty surprising. The only thing that saved Walker’s bacon, IMHO, was that he was an off-duty LEO.

    Gremlin1974 in reply to Twanger. | February 19, 2015 at 6:09 pm

    You also have to remember that at the point the discussion that pre-meditation would come into the discussion that Self Defense had already been ruled out. Most likely the determined that Dunn’s fear wasn’t reasonable or for whatever other reason that it wasn’t self defense. Which changes the discussion.

    His actions in retrieving his weapon most likely would not have come under such scrutiny if it had been determined to be a case of lawful self defense.

    But as Andrew as pointed out on a couple of occasions saying that your actions were self defense is basically the equivalent of saying; “Yes I killed this person, but I did so in lawful self defense.” So for Dunn only the section before the comma as left so his actions in retrieving his firearm, especially since it wasn’t on him, could be viewed as premeditated action.

    Also, there seems to be a big focus on Dunn’s physical actions in retrieving his firearm. Lets not forget that is not all that proceeded the shooting, there were also words exchanged, even an argument if you will, not just him getting his gun and shooting. I am sure those statements came into the discussion of premeditation as well.

    Then to make matters worse Dunn made himself look supremely guilty by basically “going on the lamb” if you will after the shooting.

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