IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE NO.: 16-2012-CF-011572-AXXX-MA DIVISION: CR-I

STATE OF FLORIDA , v. MICHAEL D. DUNN ,

Defendant. ____________________/

ORDER DENYING DEFENDANT’S MOTION TO DETERMINE CONFI DENTIALITY OF COURT RECORDS AND MOTION FOR PROTECTIVE ORDER SEALI NG CERTAIN

COURT RECORDS AND LIMITING THE DISCLOSURE OF DISCOV ERY MATERIALS, GRANTING INTERVENORS’ MOTION TO SET ASIDE ORDERS, T O DIRECT CLERK NOT

TO SEAL DOCUMENTS, TO UNSEAL AND UN-REDACT DOCUMENT S, TO REFRAIN FROM FURTHER EX PARTE COMMUNICATIONS, AND OTHERWISE ENFORCE THE

APPELLATE COURT ORDER OF DECEMBER 18, 2013, GRANTING IN PART AND DENYING IN PART INTERVENOR POST-NEWSWEEK STATIONS F LORIDA, INC.’S

MOTION TO UNSEAL DOCUMENTS, DIRECT THE STATE TO PRO DUCE DOCUMENTS DISCUSSED AT EX PARTE HEARING, AND DIRECT THE CLERK NOT TO BLOCK

PUBLIC ACCESS TO FILES ABSENT AN ORDER OF COURT

This matter came before the Court on the following three (3) Motions: 1) Defendant’s “Motion

to Determine Confidentiality of Court Records and Motion for Protective Order Sealing Certain Court

Records and Limiting the Disclosure of Discovery Materials,” filed by and through counsel on January

16, 2014, pursuant to Florida Rule of Judicial Administration 2.420, Florida Rule of Criminal Procedure

3.220(l), section 119.071, Florida Statutes, Article I, Section 16 of the Florida Constitution, and

Amendment VI of the United States Constitution; 2) Intervenor Morris Publishing Group, LLC d/b/a

The Florida Times Union and Multimedia Holdings Corporation and Gannett River States Publishing

Corporation d/b/a WTLV/WJXX First Coast News’ Motion to Set Aside Orders, To Direct Clerk Not to

Seal Documents, to Unseal and Un-Redact Documents, to Refrain From Further Ex Parte

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Communications, and Otherwise Enforce the Appellate Court Order of December 18, 2013 filed on

January 7, 2014; and 3) Intervenor Post-Newsweek Stations Florida, Inc. d/b/a WJXT-TV4’s

(collectively the “Intervenors”) Motion to Unseal Documents, Direct the State to Produce Documents

Discussed at Ex Parte Hearing, and Direct the Clerk Not to Block Public Access to Files Absent an

Order of Court filed on January 9, 2014.

A hearing on the Motions was held on January 21, 2014. At said hearing, the State, the

Defendant through counsel, George Gabel, attorney for Intervenor Morris Publishing Group, LLC,

Multimedia Holdings Corporation and Gannett River States Publishing Corporation, and Ed Birk,

attorney for Post-Newsweek Stations Florida, Inc. d/b/a WJXT-TV4, were present. Having heard

arguments from the State, defense counsel and the Intervenors, and based on review of the instant

Motions, the record, and relevant law, the Court finds as follows:

1. As stated previously, this Court must balance the need for open government and public

access to the judicial process, and the paramount right of a defendant in a criminal proceeding to a fair

trial before an impartial jury. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1982); Palm

Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (“where a defendant’s right to a fair

trial conflicts with the public’s right of access, it is the right of access which must yield”); Florida

Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 34 (Fla. 1988). When the press’s First

Amendment rights conflict with a defendant’s Sixth Amendment rights to a fair trial, the courts not only

have the ability, but the responsibility, to step in. The Sixth Amendment provides an accused the right

to a speedy and public trial by an impartial jury of the jurisdiction wherein the crime was committed.

U.S. Const. Amend. VI. It has long been recognized that adverse publicity can impact a defendant’s

right to receive a fair trial, guaranteed under the Sixth Amendment. Gannet Co. v. DePasquale, 443 U.S.

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368 (1979). To determine confidentiality and close public records, this Court must abide by Florida

Rule of Judicial Administration 2.420(c)(9)(A)-(C) and the three-part test found in McCrary and Lewis

as follows:

1) Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2) No alternatives are available, other than a change of venue, which would protect a defendant’s right to a fair trial; and

3) Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

2. Due to a prior release of documents from the Office of the State Attorney to the media,

including jail letters sent by Defendant to various recipients, and release of uncut police interrogation

videos of Defendant and Defendant’s girlfriend, witness statements, 911 audio recordings, and crime

scene photographs that became subject matter of intense pretrial media publicity, this Court entered a

Temporary Sua Sponte Restrictive Order Regarding Pretrial Discovery Materials (“Restrictive Order”)

on October 24, 2013.

3. On October 29, 2013, Intervenors filed a “Motion to Intervene, To Vacate Restrictive

Order, and For Continued Access to Public Records.” A hearing was held on November 7, 2013 in

which Intervenors, the State and defense counsel presented legal argument. At said hearing, the State

also informed the Court that no one had paid the fees associated with the review and production of the

jail calls requested by the Intervenors through public records requests. Public records request was made

at the latest October 18, 2013 and correspondence between the media and the State ensued. See Exhibits

J, K, and L, attached to the State’s Response filed on January 20, 2014.

4. On November 19, 2013, this Court entered an Order Granting In Part And Denying In

Part Intervenors’ Motion To Intervene, To Vacate Restrictive Order, And Continued Access To Public

Records.

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5. In mid-November 2013 the State, at this Court’s request, provided the Court with their

summary of personal jail phone calls made by Defendant to various third parties. The actual phone call

recordings were not made available to this Court due to the lack of resources and staff available to listen

to and review the approximate one-hundred and eighty (180) hours of jail phone calls. It is important to

note that to date, no other materials have been submitted to this Court for any in camera inspection or

review as would be the proper procedure. See Ingram v. State, 2013 WL 6687815, 39 Fla. L. Weekly

D5 (Fla. 5th DCA 2013) (stating that the appropriate procedure to observe when statutory exemptions

are claimed is to furnish the documents to the trial judge for an in camera inspection); Media General

Operations, Inc. v. State, 933 So. 2d 1199, 1200 (Fla. 2d DCA 2006) (where discovery materials would

not be disclosed to public for thirty days so that defense counsel may seek an in camera inspection of

any material that, if made public before trial, posed a substantial and imminent threat to a fair trial, and

the trial court would examine the materials to determine if any should be withheld temporarily from

public disclosure under Chapter 119, “[t]his procedure worked well . . .”); Morris Pub. Group, LLC v.

State, 13 So. 3d 120, 121 (Fla. 1st DCA 2009), citing Media General Operations, Inc..

6. This Court completed its review of each jail call summary within thirty (30) days of

receipt. No motion to determine confidentiality or motion for protective order was filed by any party

until January 16, 2014. Further, to date, no Intervenor, media outlet, or third party has paid the fees

required to review and produce said jail calls. § 119.07(4)(d), Fla. Stat. (2013); see Ingram v. State,

2013 WL 6687815, 39 Fla. L. Weekly D5 (Fla. 5th DCA 2013); Lozman v. City of Riviera Beach, 995

So.2d 1027 (Fla. 4th DCA 2008); Bd. of Cnty. Comm’rs of Highlands Cnty. v. Colby, 976 So.2d 31, 37

(Fla. 2d DCA 2008).

.

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.

7. On November 25, 2013, Intervenors Morris Publishing Group, LLC, Multimedia

Holdings Corporation and Gannett River States Publishing Corporation filed an emergency Petition for

Writ of Certiorari in the First District Court of Appeal, demanding access to certain documents and

discovery materials in the instant case including but not limited to said jail calls and witness

information.

8. On December 18, 2013, the First District Court of Appeal entered an Order, vacating

both this Court’s October 24, 2013 and November 19, 2013 Orders, stating that the disposition is

without prejudice to a subsequent motion to determine confidentiality of the records at issue or for a

protective order limiting the disclosure of the discovery materials. The same Order directed this Court

to “immediately convene an evidentiary hearing . . .[s]hould such a motion be filed, or if the trial court

considers the matter on its own motion.” No such motion was filed; therefore, no evidentiary hearing

was convened.

9. On January 7 and 9, 2014, Intervenors filed their respective motions to enforce the First

District Court of Appeal’s December 18, 2013 Order. At the Defendant’s next scheduled pretrial,

January 13, 2013, this Court scheduled the motions for hearing on January 24, 2014, taking into

consideration the State and defense counsel’s schedule and defense counsel’s travel availability.

10. On January 16, 2014, Defendant filed the instant “Motion to Determine Confidentiality of

Court Records and Motion for Protective Order Sealing Certain Court Records and Limiting the

Disclosure of Discovery Materials.” In this Motion, Defendant seeks to protect “any and all ‘jailhouse’

conversations of the Defendant, including but not limited to any and all discussions, phone calls, and/or

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visitations.” In support of his Motion, Defendant argues that such closure is required to prevent a

serious and imminent threat to the fair, impartial, and orderly administration of justice, to protect a

compelling governmental interest, and to comply with established state and federal constitutional law

and cases.

11. On January 17, 2014, the First District Court of Appeal entered a second Order, granting

Intervenor Morris Publishing Group, LLC’s emergency motion, dated January 17, 2014, ordering this

Court to disclose “all criminal discovery produced in this case, including but not limited to the

defendant’s recorded conversations, provided pursuant to Florida Rule of Criminal Procedure 3.220.”

The same Order also stated that “[t]his order does not modify petitioners’ requirements to comply with

necessary payment and other administrative requirements provided in Chapter 119.” The Order further

stated that “[t]o ensure protection of the defendant’s Sixth Amendment rights, see Gannett Co. v.

DePasquale, 443 U.S. 368 (1979), should the trial court determine any of this criminal discovery must

be excluded from disclosure, the trial court shall provide for such nondisclosure only if ordered

following a full evidentiary hearing and a written order based on factual findings and appropriate legal

analysis, based on evidence submitted during the evidentiary hearing. See McCrary, 520 So. 2d at 34;

Lewis, 426 So. 2d 1; Fla. R. Jud. Admin. 2.420; Fla. Stat. § 119.011(3)(c)(5)(a) (2013).”

12. On January 21, 2014, the First District Court of Appeal entered a third Order in response

to the State’s Emergency Motion to Modify the January 17, 2014 Order, Defendant’s “Emergency

Motion to Modify and Clarify This Court’s 17 January 2014 Order,” and Opposition of Morris

Publishing, Multimedia Holdings and Gannett River to State’s Emergency Motion to Modify. In this

Order, the appellate court modified its January 17, 2014 Order allowing this Court until Friday, January

24, 2014 to render and file its written order.

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13. On January 21, 2014, a hearing was held on all three above-referenced Motions. The

parties presented legal arguments only and did not present any evidence in support of any of the issues

raised in the various motions. Moreover, no party requested an in camera inspection of the actual

recorded phone conversations or any other materials at any time prior to the hearing nor was any request

made at the hearing itself.

I. WITNESS INFORMATION

14. Case law indicates that once the State provides discovery materials to the accused, it

becomes public record. McCrary, 520 So. 2d at 34; Post-Newsweek Stations, Florida Inc. v. Doe, 612

So. 2d 549, 551 (Fla. 1992); § 119.011(3)(c)(5), Fla. Stat. (2013).

15. As stated previously, Defendant must meet his burden under the three-part test set out in

McCrary and Lewis and prove the following:

1) Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2) No alternatives are available, other than a change of venue, which would protect a defendant’s right to a fair trial; and

3) Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

16. Section 119.011(3)(c)(5), Florida Statutes (2013) gives trial courts the discretion to

“order that certain information required by law or agency rule to be given to the person arrested be

maintained in a confidential manner and exempt from the provisions of s. 119.07(1) until released at trial

if it is found that the release of such information would: a) be defamatory to the good name of a victim

or witness or would jeopardize the safety of such victim or witness and b) impair the ability of a state

attorney to locate or prosecute a codefendant.”

17. In response to Defendant’s prior Motion to Determine Confidentiality, this Court entered

an Order on April 1, 2013 protecting any and all witness information from disclosure to the public

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except for those witnesses who were already in the public domain. As the witness information

protection in the April 1, 2013 Order was set to expire on August 1, 2013, this Court entered an Order

that extended the closure of any and all witness information not previously disclosed to the public or

media until jury selection or further order of this Court.1 These orders were agreed to by the State and

Defense and not objected to by the media outlets.

18. Defense counsel argued at the hearing that his right to a fair trial afforded by the Sixth

Amendment trumps the media’s request for disclosure of the witness list, citing the McCrary case and

additional case law. However, Defendant failed to present any evidence demonstrating that closure of

the witness list was necessary to prevent a serious and imminent threat to the administration of justice.

Additionally, Defendant failed to show that no alternatives are available, other than a change of venue,

which would protect a defendant’s right to a fair trial and that closure would be effective in protecting

the rights of the accused. Lastly, Defendant failed to allege or present any evidence showing that the

disclosure of the witness list “would jeopardize the safety” of any of the witnesses and impair the ability

of a state attorney to locate or prosecute a codefendant. Therefore, this Court now orders that the

witness information be made available to the public.

19. This Court notes, however, that the current Public Records Act affords very little if any

protection for nonparties who are listed as witnesses in a pending criminal case. As stated in Judge

Davis’s concurring opinion found in Times Publishing Co. v. State, 903 So. 2d 322, 328 (Fla. 2d DCA

2005), once witness information that includes name and address is made public, “[t]o have one’s name

publicized with such potentially intimate and personal information, which may or may not be true, with

1 This Court and the media agreed, following a more careful review of Florida Rule of Judicial Administration 2.420, that the one-hundred and twenty (120) days stated in 2.420(f)(3) does not apply to the witness list; rather, 2.420(f)(3) applies only to motions to determine whether a court record that pertains to a plea agreement, substantial assistance agreement, or other court record that reveals the identity of a confidential informant or active criminal investigative information is confidential.

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no prior knowledge or notice of such release, is grossly unjust.” The way Florida Rule of Criminal

Procedure 3.220 is written “leave[s] the person who needs to be present before the court to assert his or

her privacy rights ignorant of this need to appear until after the disclosure has occurred.” Times

Publishing Co., 903 So. 2d at 329 (Davis, J. concurring). Moreover, there does not appear to be any

case law, statute, or rule stating that either the State or Defendant has standing to raise any kind of

privacy rights argument for any listed witness in a pending criminal case. Times Publishing Co., 903

So. 2d at 328, n. 1 (“Because resolution of the question has not been necessary to determine the

disposition of Times Publishing’s petition, we have not decided whether the State has standing to assert

a privacy interest of a nonparty.) This Court agrees that this blatant lack of notice to and protection for

listed witnesses, especially in high profile cases with intense and emotionally charged media publicity,

“is an injustice that needs to be addressed.” Id. at 329.

II. Jail Calls

20. Addressing the jail calls, this Court notes that personal phone calls made by defendants

from jail generally are not considered public records. The Fourth District Court of Appeal held in Bent

v. State, 46 So. 3d 1047, 1049-50 (Fla. 4th DCA 2010) that intervenor Sun-Sentinel was not entitled to

production of the recorded personal phone calls pursuant to the Public Records Act, section

119.011(12). Discussing personal phone calls made by minor-age inmates (charged as adults for

murder) to family members and other third parties, the Fourth DCA specifically stated, “[a]lthough

monitoring of inmate calls for security purposes is related to official business of the jail, maintaining

recordings of purely personal calls is not. The recordings at issue are personal phone calls, as opposed

to records generated by the Broward County Sheriff’s Office (BSO), such as mail logs or logs of phone

numbers called.” Bent, 46 So. 3d at 1049. The appellate court further concluded that “[u]nless the

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contents of the call involve a crime or security risk, ‘perpetuating’ or maintaining these sound recordings

has no connection to any official business of BSO.” Id. at 1050.

21. “The purpose of the Public Records Act is to promote public awareness and knowledge

of governmental actions in order to ensure that government officials and agencies remain accountable to

the people.” Forsberg v. Housing Authority of City of Miami Beach, 455 So. 2d 373, 378 (Fla. 1984);

Christy v. Palm Bch. Cnty. Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997) (stating that the

purpose of the Public Records Act “is to open public records to allow Florida’s citizens to discover the

actions of their government.”)

22. Despite the foregoing, under current law, once the State received the recorded phone

calls from the Jacksonville Sheriff’s Office, they were obligated to list and disclose said “discovery

materials” to the Defendant per Florida Rule of Criminal Procedure 3.220. Curiously, this act of

compliance causes what the Fourth District Court of Appeal clearly states are not public records to

somehow become public records. Interestingly, it would appear that no appellate court, beginning with

the seminal cases of McCrary, Lewis, and the progeny of cases that follow, has been presented with this

apparent conflict.

23. Despite this conundrum, Defendant provided no evidence demonstrating that closure of

the jail calls was necessary to prevent a serious and imminent threat to the administration of justice.

Defendant also failed to show that no alternatives are available, other than a change of venue, which

would protect a defendant’s right to a fair trial and that closure would be effective in protecting the

rights of the accused release of witness information. Lastly, Defendant failed to present any evidence

showing that the disclosure of the jail calls “would jeopardize the safety” of any of the victims or

witnesses. Therefore, due to the lack of evidence and the reasons stated above, this Court hereby denies

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the Defendant’s Motion to Determine Confidentiality of Court Records and Motion for Protective Order

Sealing Certain Court Records and Limiting the Disclosure of Discovery Materials and orders the jail

calls be disclosed.

24. Intervenor Post-Newsweek Stations Florida, Inc. d/b/a WJXT-TV4 posits in their Motion

that it is entitled to the jail call summaries prepared by the State.2 This Court disagrees and concludes

that the jail call summaries reflect the State’s mental impressions, conclusions, litigation strategies, or

legal theories, pursuant to section 119.071(1)(d), Florida Statutes (2013). See Evans v. State, 995 So.2d

933, 941-42 (Fla. 2008). The State stated at the hearing that the jail call summaries were prepared

exclusively for the criminal litigation. Thus, this Court finds that the jail call summaries are thus exempt

from public disclosure.

In view of the above, it is ORDERED AND ADJUDGED:

1. Defendant’s “Motion to Determine Confidentiality of Court Records and Motion for

Protective Order Sealing Certain Court Records and Limiting the Disclosure of Discovery Materials,”

filed on January 16, 2014 is DENIED . Therefore, this Court now orders that the witness information

and jail calls be made available to the public.3

2. Intervenor Morris Publishing Group LLC d/b/a The Florida Times Union and Multimedia

Holdings Corporation and Gannett River States Publishing Corporation d/b/a WTLV/WJXX First Coast

News’ Motion to Set Aside Orders, To Direct Clerk Not to Seal Documents, To Unseal and Un-Redact

Documents, To Refrain From Further Ex Parte Communications, and Otherwise Enforce the Appellate

2 Intervenor Morris Publishing Group LLC d/b/a The Florida Times Union and Multimedia Holdings Corporation and Gannett River States Publishing Corporation d/b/a WTLV/WJXX First Coast News does not join in this request in their Motion and conceded at the hearing that the jail call summaries prepared by the State are protected under work product privilege. 3 This Court’s Order, as required by the First District Court of Appeal in its January 17, 2014 Order, “does not modify petitioners’ requirements to comply with necessary payment and other administrative requirements provided in Chapter 119.”

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Court Order of December 18, 2013, filed on January 7, 2014, is GRANTED in part subject to the

required redactions as outlined below.

3. Intervenor Post-Newsweek Stations Florida, Inc. d/b/a WJXT-TV4’s Motion to Unseal

Documents, Direct the State to Produce Documents Discussed at Ex Parte Hearing, and Direct the Clerk

Not to Block Public Access to Files Absent an Order of Court, filed on January 9, 2014, is GRANTED

in part . Said Motion is DENIED in part as Intervenor is not entitled to the State’s summaries of the

recorded jail calls.

4. The Clerk of Courts is hereby directed to do the following immediately:

a. Remove any redactions as to name, sex, age and address of any of the victims, except as

provided in section 119.071(2)(h), Florida Statutes (2013), to the arrest and booking report (lines 1 and

18 in CORE) and the indictment (line 12);

b. Unseal or unsecure or file the unredacted version (to reveal witness information) of the

following documents:

1) Response to Demand and Demand for Reciprocal Discovery (line 41); 2) Clerk’s Memo of Trial (line 65); 3) State’s Motion to Deny Bail (line 67); 4) Witness Subpoena(s) Duces Tecum Issued State (line 70); 5) Indigent for Costs Affidavit of Attorney Fees (line 101); 6) Response to Demand and Demand for Reciprocal Discovery First Supplemental

(lines 159 and160); 7) Response to Demand and Demand for Reciprocal Discovery Second

Supplemental (lines 161 and 162); 8) Order to Transport State’s Witness (line 177); 9) Motion–State’s-For Pretrial Ruling Regarding Relatives of the Victims (line

212); 10) Defendant’s First Supplemental Witness List (line 217); 11) Defendant’s Response Motion in Limine Regarding Prior Acts (line 218); 12) State’s Motion in Limine Regarding Prior Acts (line 229); 13) Witness List (Amended) Defendant’s Supplemental (line 234); 14) Demand for Better Address (line 236); 15) Defendant’s Motion to Strike Witness (line 237);

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16) Witness List (Amended) Second Supplemental (line 238); 17) Transcript (line 241)4; 18) Return of Service (line 243); 19) Order for Subpoena Duces Tecum – Agreed- Granting (line 254); and 20) Motion to Determine Confidential Record (line 255). 5. All information which is protected from disclosure by statutory exemptions in Chapter

119 shall be and/or remain redacted.

DONE AND ORDERED in Chambers at Jacksonville, Duval County, Florida this 24th day of January,

2014.

_______________________________________ RUSSELL L. HEALEY ACTING CIRCUIT COURT JUDGE

4 This Court notes that this transcript is public record under Florida Rule of Judicial Administration 2.420(b)(1)(A) as it is a court record, namely, a transcript filed with the clerk.

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Copies to: Angela Corey, Esquire John Guy, Esquire Erin Wolfson, Esquire Office of the State Attorney Cory C. Strolla, Esquire Attorney for Defendant 2247 Palm Beach Lakes Blvd., Suite 107 West Palm Beach, FL 33409 George D. Gabel, Jr., Esq. Holland & Knight LLP 50 North Laura Street, Suite 3900 Jacksonville, Florida 32202 Attorney for Intervenors, The Florida Times-Union and First Coast News Edward L. Birk, Esq. Marks Gray 1200 Riverplace Blvd., Suite 800 Jacksonville, FL 32207 Attorney for Post-Newsweek Stations Florida, Inc. and WJXT-TV4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished to Angela Corey, John Guy and Erin Wolfson, Esquire, Office of the State Attorney, 220 E. Bay Street, Jacksonville, Florida 32202; Cory C. Strolla, Attorney for Defendant, 2247 Palm Beach Lakes Blvd., Suite 107, West Palm Beach, Florida 33409, George D. Gabel, Jr., Esq. Holland & Knight LLP, 50 North Laura Street, Suite 3900, Jacksonville, Florida 32202, Attorney for Intervenors, The Florida Times-Union and First Coast News, and Edward L. Birk, Esq., Marks Gray, 1200 Riverplace Blvd., Suite 800, Jacksonville, FL 32207, Attorney for Post-Newsweek Stations Florida, Inc. and WJXT-TV4 by e-mail this 24th day of January, 2014.

/s/ Becci Powell___________ Judicial Assistant Case No.: 16-2012-CF-011572-AXXX-MA