After his arrest on a misdemeanor domestic battery charge in late June, Flagler Beach City Commissioner Eric Cooley retained as his attorney Josh Davis, a scrappy, unapologetically combative former assistant state prosecutor who often takes to social media or comment sections to speak his opinion on criminal justice, politics and social issues.
Davis is currently representing at least one ex-sheriff’s office employee who was fired. He’s made little secret of his antipathy for Sheriff Rick Staly’s folksier ways–among them the sheriff’s “fugitive bingo” videos and his “Green Roof Inn” moniker for the county jail, which explicitly presumes guilt (“crime stops here!”) even though most occupants of the jail are in pre-trial phases. Davis has challenged sheriff’s office procedures before, but he’s never attacked the sheriff directly in court.
That changed on Monday when Davis filed a motion calling for a gag order on Staly.
The motion argues that the sheriff’s “abuse of the freedom of speech” prejudiced Davis’s client–Cooley–by making statements in a press release after Cooley’s arrest that essentially declared Cooley guilty. Staly’s comments “undermine the foundation of the criminal justice system, and therefore must be muzzled” by the court, Davis wrote.
The Sheriff’s Office answered Davis’s motion with a motion of its own for dismissal, arguing that the kind of “publicity” the Cooley case has received isn’t anywhere near the sort of publicity that catches a court’s attention when considering whether a defendant’s fair proceedings have been violated. “The local coverage received has been brief and has mostly included the positions of both the Defendant and the State,” the motion by sheriff’s attorney Kayla Hathaway states, documenting four FlaglerLive stories and one Palm Coast Observer story referring to the Cooley case. Granting Davis’s motion would “violate the Sheriffs First Amendment [r]ights,” she wrote.
Davis writes that Staly after Cooley’s arrest called a press conference that night and said, referring to Cooley: “This is an unfortunate situation but it goes to show you that domestic violence has no boundaries.” Davis’s motion adds: “Staly is constantly calling those accused of crimes ‘dirtbags’ and ‘scumbags.’ ” In fact, there was no news conference the night of Cooley’s arrest. Staly made the comments in a press release issued by his office early the next morning (at 7:19 a.m.).
Staly does use the word dirtbags, but scumbags is the trademark neighboring Volusia County Sheriff Mike Chitwood. Staly used neither–nor any pejorative terms–when referring to Cooley, though echoing a long and largely unchallenged tradition among elected sheriffs, he is routinely quoted in agency releases as referring to suspects as if they were unquestionably guilty: last week he referred to a just-arrested rape suspect as a “predator,” though the suspect has not been convicted or designated as either a predator or sex offender.
Gag orders are not uncommon in high-profile cases, but they usually apply to individuals immediately responsible for a case, typically the lawyers on the two sides, their offices and their witnesses.
“Muzzling lawyers who may wish to make public statements has long been recognized as within the court’s inherent power to control professional conduct,” Davis wrote. “As such, courts also are authorized to limit what police may say when it becomes clear those communications are interfering with an accused’s right to a fair trial in front of an impartial jury.” Beyond that, further limits are unusual, and gag orders on elected officials (other than the State Attorney or the Public Defender, who are also elected) are rare at most.
Davis claims that “The extensive print and broadcast media coverage, including the internet, has been generated predominantly because of the efforts of Sheriff Staly and because of the political position held by the Defendant, Eric Cooley in the City of Flagler Beach.” The second part of the claim is accurate: Cooley’s misdemeanor charge would not have drawn the kind of coverage it has were he not an elected commissioner. But the first part of the claim is not documented: aside from the two-line quote in the press release–itself most likely written by a staffer–Staly or his office have not made any pronouncements about Cooley since, other than in passing references in interviews.
“The Sheriff is a non-party to this case and an elected official,” the sheriff’s attorney wrote in her response. “As such he has the First Amendment right to comment on matters of public concern. He has consistently championed an initiative to combat domestic violence in our community. It is not only lawful but also completely appropriate for the Sheriff to speak out generally any time domestic violence touches our community.”
A Palm Coast attorney who regularly appears in court and whose clients have included some arrested by the Sheriff’s Office evaluated the issue this way: “First, these days we hear that our president makes official statements and personal statements, and his personal statements are not any type of official statement of the country. It sounds as though the sheriff may be doing the same thing, as I don’t think it would be the official position of the sheriff’s office that a criminal defendant is a scumbag or dirtbag. Next, I’m not sure whether the sheriff’s speech is unconstitutional. I would have to look into that. Finally, I would note that some defense attorneys, like Johnnie Cochran famously did, would use the public comments of officers in defending their clients. The defense could claim some type of targeting or overzealous policing.”
Though he’d said last week that he would be filing more than one motion in the days ahead, Davis’s gag motion was surprising, given the state of the case.
Though Davis is ready to go to trial, the case is teetering, with the alleged victim asking the State Attorney’s Office to drop the charge. That’s left the prosecution trying to convince her not to, with a looming deadline in less than two weeks, when the speedy-trial clock runs out: the prosecution had 90 days from the time of arrest to take the case to trial unless the defense waived speedy trial. Davis is not waiving. If matters stand as they do now, charges would have to be be dropped within days absent an unlikely attempt by the state to go forward anyway.
Part of Davis’s arguments have been that Cooley had been wrongfully judged and his reputation damaged by the surfeit of media attention in the case. Yet Davis’s motion brings renewed attention on Cooley and the battery charge while making direct jabs at the sheriff usually found in opinion columns or social media posts: “It is clear from the comments he has made, that Flagler County Sheriff Staly has no appreciation or respect for the criminal justice system, but rather a disdain of a constitutional system that has weathered over 200 years of testing,” Davis writes.
His motion quotes a Florida Supreme Court concurrence in a case where the justice states “that it is the trial court’s responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten fairness of his trial and the abrogation of his constitutional rights.” But he does not quote the sentences the judge wrote immediately following: “However, I feel that, through admonition to jurors and through sequestration of the jury, a trial judge has ample power to insure a fair trial for a criminal defendant without suppressing First Amendment rights of the news media as regards reporting proceedings (Rose, supra). Trial is a public event, there is no special perquisite of the judiciary which enables it to suppress, edit or censor events which transpire in proceedings before it, and those who see and hear what transpired may report it with immunity.” That concurrence added: “Gagging a public official who has pertinent information is as detrimental to the First Amendment as drying up the reporter’s pen.”
County Court Judge Melissa Moore-Stens was originally scheduled to hear the motion on Thursday (Sept. 20). On Tuesday, the hearing was re-scheduled to Sept. 27 at 3 p.m.