“We all believed there was another way out, another option.”
— Juror #4, State v. Dunn
“I think we’ve got some analytical people in there who are trying to do just that - trying to analyze this from every possible angle.”
— Judge Russell Healey
Earlier this week a Jacksonville, Fla., jury convicted 45-year-old software developer Michael Dunn on three counts of attempted murder stemming from an incident at a Jacksonville gas station on Nov. 23, 2012. The same jury acquitted Dunn on a first degree murder charge.
Dunn and his girlfriend had been in Jacksonville to attend a wedding. Following the wedding ceremony they stopped to get gas. While his girlfriend went into the station’s convenience store, Dunn stayed at his car to pump the gas (Florida gas pumps do not have locking handles, requiring the person pumping the gas to remain at the vehicle). An SUV was also at the gas station, and four teens were in that vehicle. They were playing loud music.
Dunn asked them to turn the music down. What happened next is in dispute, but what is not in dispute is that Dunn fired multiple shots into the SUV, killing 17 year-old Jordan Davis. Dunn says that Davis became irate, exited the vehicle, threatened to kill him and then went back to the SUV and retrieved what Dunn thought was a shotgun, pointing it at him. In response, Dunn shot him in self defense.
Police say that when they arrived at the scene there was no gun in the SUV and no weapon of any kind. Davis’ friends testified that he was sitting the back seat of the SUV and the child lock was engaged on the back door, making it impossible that he could even have gotten out of the vehicle. Prosecutors also pointed out that Dunn did not contact authorities on the night of the shooting and instead went back to his hotel where he and his girlfriend ordered pizza and drinks.
Following the verdicts, a good friend emailed me and posed two questions. First, he asked, “Can you explain the thinking behind trying a person on several charges at once?” Second, he wondered, “How can a person be found guilty of attempted murder when a killing has taken place but then not found guilty of murder when the person is dead?”
The answer to the first question revolves around charging decisions that prosecutors make in an attempt to present the best possible case to a judge or jury. To begin with, the facts of a case may support multiple charges. Perhaps a person breaks into a home, steals items and assaults the homeowner. The prosecutor is likely to charge the person with a variety of offenses- burglary, assault, theft, etc.
Multiple charges may also be the result of a prosecutor simply keeping their options open, or, more appropriately, keeping the jury’s options open when it comes time to deliberate. The law often provides varying degrees of seriousness for the same offense, or permits an action to be charged a multitude of ways. A person who gets into a fight might be charged with disorderly conduct. They might also be charged with assault. Both charges are appropriate and it is possible that both charges could be submitted to a jury for consideration.
As to the second question, the facts of the Dunn case explain how he could be acquitted of murder and convicted of attempted murder even where a person was killed. The murder charge related to Davis, the attempted murder charges related to the other three occupants of the vehicle. The jury was able to conclude that Davis had attempted to kill the other occupants but they were not able to unanimously agree that he had purposefully caused Davis’ death. The result is certainly an unusual one, but it is one within the jury’s power.
Prosecutors make decisions every day about how to charge cases in order to try to secure the best result, to allow for the admissibility of certain evidence or to give the jury options that will produce a favorable outcome. It is left to juries comprised of citizens who answer the call to their civic duty to sort through the evidence and arrive at a just verdict.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.