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Attorney Calls For Gag Order on Sheriff Staly in Eric Cooley Case, Claiming Prejudicial Words

| September 19, 2018

Palm Coast attorney Josh Davis has been critical of Sheriff Staly's folksy ways, such as the nick-naming of the county jail as the 'Green Roof Inn.' Davis considers the sheriff's approach prejudicial to defendants who've yet to be tried. (© FlaglerLive)

Palm Coast attorney Josh Davis has been critical of Sheriff Staly’s folksy ways, such as the nick-naming of the county jail as the ‘Green Roof Inn.’ Davis considers the sheriff’s approach prejudicial to defendants who’ve yet to be tried. (© FlaglerLive)

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. 

An unexpected motion that again draws attention to a case whose lawyer argues is getting too much attention.

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.  

Motion for Gag Order On Sheriff Staly in Eric Cooley Case (2018)

19 Responses for “Attorney Calls For Gag Order on Sheriff Staly in Eric Cooley Case, Claiming Prejudicial Words”

  1. Buck Troesch says:

    Kudo’s to Sheriff and the fine work his department is doing. As a citizen of Flagler County, I like “folksy” as opposed to PC hacks and scumbags.

  2. 107 says:

    Will a gag order be put on Sullivan for threatening McDonald’s life! When is the Sheriff going to arrest Sullivan?

  3. Mmsupporter says:

    Gag order? Yet if this was any other person in the community arrested with the same charge they would not be afforded the same. A lot of people who know Mr Cooley and his relationship with the victim know very well how he treated her and have seen it first-hand. He shouldn’t be afforded any special treatment just because of his position and notoriety in the community. Yes, he has done many many good things in the community but that does not mean that his actions should be disregarded because of that. I can completely understand why the victim would want the charges dropped so that she can move on with her life but that doesn’t mean that what she said happened didn’t happen as Mr. Davis is trying to portray. I personally have seen with my own eyes the way the victim was treated by Mr. Cooley while in his store and it was appalling to say the least.

  4. 107 says:

    The Sheriff should conduct himself in an adult professional manner and not name call. Name calling is a behavior exhibited by a pre-schooler.

  5. Duncan says:

    I think the Sheriff could stand to act a bit more professional. He seems to have a beef with just about everyone that disagrees with him, maybe typical but certainly not professional. His hillbilly type humor, i.e Green Roof Inn neon sign, is certain unprofessional; what are we back in grade school?

  6. Kay Harrington says:

    The sheriff brings this kind of stuff on himself. He’s always got his face in the press, painting himself like some boarder town cowboy sheriff. Really he’s just an egotistical media maniac. Keep going hop-a-long you’ll be riding off into the sunset soon.

  7. Charlie says:

    Let them “DUEL” it out at 30 paces at the Flagler Gun Range. The sheriff can wear his white cowboy hat and pretty holster. Go get em deputy dog !

  8. Percy's mother says:

    I learned about this case after reading about it on Flaglerlive . . .

    I learned nothing of this case from The Sheriff.

  9. Dave says:

    Yes the Sherriff is very unprofessional, and has a very negative hateful undertone to him. BUT, he is not the reason I think that Cooley guy is a woman beater and bad for Flagler County, the reason I believe that is because of the witnesses that saw it happen.

  10. atilla says:

    Keep up the good work sheriff. This ambulance chaser is trying to make his name known. Davis and Davis for the people. Free advertising.

  11. BMW says:

    We live in a world of ‘Deflection’. Women beater ‘Good’. Sheriff who deals with the absolute worst of human nature on a daily basis ‘Bad’. Those of us who live beachside know how CasaNova acted prior to the incident that landed him in jail. He is a player and does not warrant pity or the ‘Pillar of the Community’ title his attorney anointed him with. To beat a dead horse, we have got to take our city elections more seriously.

    PS – I met the Sheriff at the last First Friday and thanked him for his effort in educating the public with his outreach Domestic Violence programs. We do live in a city where the last FIVE MURDERS were domestic related. At no point did Mr. Cooley or his incident with Suzanne come into the conversation. With a Chief of Police who had to recuse himself, it is clear the attorney is fighting to discredit the Sheriff to get him out of the picture, too.

  12. Janet R Fonseca says:

    Janet says: The Sheriff should conduct himself in an adult professional manner and not name call, I agree
    with Davis in regard to the Green roof in and the dirt bags and comments. “fugitive bingo” videos I find very

  13. John Dolan esq. says:

    Fugitive bingo, green roof inn or forcing prisoners to wear pink underwear is a standard below what I am willing to accept as a voter. This Wyatt Earp syndrome seems to be popular with Florida Sheriffs.

  14. Trailer Bob says:

    Here are some facts for those who seem to approve of woman beaters, but not with the sheriff who calls criminals what they are…dirtbags. Cooley is absolutely a woman abuser, seen it, as many others have in the 7-11 he owns. I don’t care what else he does in the community…smacking around women is wrong and any lawyer who tries to protect his maniac is a pos. SO take a side…our sheriff who is trying to keep out streets safe, or a lawyer who is standing up for a manpunk who beats women, even in front of witnesses. I guess some on the commenters here approve of beating women. Sad.

  15. jim says:

    simply put…. THIS SHERIFF IS AN EMBARRASSMENT!!! and has to go these one time disgraces have to stop in Flagler County

  16. palmcoaster says:

    As far as is my opinion of this sheriff he is a good one and we should keep him. His team of officers, deputies and investigators do all the law allows them to enforce…and I bet is very frustrating for them to risk their lives day in and day out for us all to catch the dirtbags and bums just to see them released on bail, some next day!

  17. Concenrned Citizen says:

    Why are we worried about who the Sheriff calls names?

    We should be concerned with the fact that we have someone who likes to abuse women and might very well get away with it. And he is no ordinary citizen.

    If you own a business and serve on your city counsel you are held to higher standards. And it’s never OK to put your hands on a woman. If you can’t get along then leave.

    Mr. Cooley’s service to his community is negated by his actions. And I imagine Mr. Davis will do his best to wheel and deal to get him out of it. Regardless of the amount of evidence piling up.

  18. djm says:

    Thanks Mr. Davis for keeping this case visible to the public eye so that we can remember to continue to boycott Mr. Cooley’s 7-11.

  19. Realist says:

    Sheriff Staly does this quite often and not just in the Eric Cooley situation. He never saw a microphone he did not like. I know first hand. I did not vote for him and look forward to voting against him when he is up for reelection.

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