Monday, February 17, 2014


This story first appeared in The Florida Times-Union.

Since Wednesday’s closing arguments in the Dunn trial, I have had a number of people remark to me that, compared to others, this trial seemed to go by in a flash. Was six days enough time to spend on the Dunn case? Not in my opinion.
The state presented a very lean case, perhaps too lean. Their primary presentation seemed designed to prove there was a homicide, and to prove Dunn did it. They showed us trajectory rods, we heard graphic details from the medical examiner, we heard audio of the shots fired, they showed us the gun and presented evidence that the shots that killed Jordan Davis came from Dunn’s weapon. None of these details, however, were contested.

What was contested was the notion the Dunn fired his weapon in self-defense. While the state did an admirable job showing the inconsistencies in Dunn’s story (including the devastating testimony from his fiancee, Rhonda Rouer), they never really managed to disprove Dunn’s account beyond a reasonable doubt. It’s fair to say the state poked enough holes in Dunn’s testimony to question whether he’s telling the whole truth. It might even be fair to say that they showed that parts of Dunn’s story are probably lies — especially some of the key details. But that isn’t the threshold they need to meet. Their burden is to show beyond a reasonable doubt that Dunn’s story was absolutely a lie, that he just intended to kill, but did they do that?

Luckily for the state, they may get a guilty verdict without meeting that burden. In making their case, they presented a scenario where Dunn is guilty, and they challenged the defense to disprove it. [Cory] Strolla took the bait. This tactic is called burden shifting. It’s inappropriate, improper, and goes against the spirit of our “innocent until proven guilty” justice system, but can go almost unnoticed unless the defense exposes it and remedies it.

In John Guy’s closing argument he urged the jury several times to use their “common sense,” essentially suggesting that if Dunn seems guilty, they should convict. Rather, for a first degree murder prosecution, they have to convince the jury beyond a reasonable doubt that he decided to become a mass murderer. They didn’t. They didn’t even present evidence that Dunn was angry, frustrated or so incensed that he cared not about the results of his actions. That, when all is said and done, would be second degree murder.

In the defense closing, Strolla should have just as forcefully and repetitively asked the jury whether the State had disproved Dunn’s claims beyond a reasonable doubt. He should have reminded the jury, not just in passing, but in no uncertain terms that the State carried the burden of proof, and he should have shown the jury point by point where the State failed to do their job. As this jury enters their third day of deliberations, I’m not confident they clearly understand the standards they should be applying, and I think it will show in their soon-to-come verdict.

If unraveling a burden shift isn’t complicated enough for the 12 members of the jury, consider this: The state is asking them to return a guilty verdict for first-degree murder. They want the jurors to conclude that, in the few moments before he opened fire, Dunn — who had never shot his weapon in anger for the more than 20 years he’d owned it — decided affirmatively to commit murder. That’s a huge stretch. They’ve overcharged, and while it may be a known tactic in business negotiations to ask for more than you expect to get, it’s a dangerous practice in the justice system, especially when a man’s life is on the line. If Dunn overreacted to a wise-mouthed teenager, without fear for his life, then he’s guilty of second-degree murder, not first, and the confusion this causes may be part of what the jury is wrestling with.

I also think the defense should have presented a better explanation for what Dunn said happened that night, consistent with most of the known facts. Did Jordan Davis raise that tripod as a fake threat to the old guy complaining about the music, not knowing his would be met with a real gun? At the very least, that is what Dunn would say happened. Perhaps reinforcing that explanation may have given the jury the commonsense answer they are searching for.

If the Dunn trial seemed short for a murder trial, and it was, it’s because the state didn’t do all the work they needed to do to meet their full burden, and Strolla let them get away with it. And if the jury deliberations seem to be taking longer than they should, and we’re not quite there yet, it may be because they’re applying difficult standards to confusing charges.

As we await the verdict, we should keep in mind what is inscribed on the Department of Justice Building in Washington, D.C.: “The United States wins its case whenever justice is done one of its citizens in the courts.” Prosecutors are to seek justice, not just convictions.

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