It took Kimberle Weeks and her attorney, Kevin Kulik, nearly 14 months to file the initial brief on Weeks’s appeal of a conviction and sentence in the spring of 2018 on seven felony counts of illegally recording telephone conversations with local and state public officials. Weeks also pleaded guilty to an additional count that November of recording a private individual.
Circuit Judge Margaret Hudson sentenced Weeks on the third-degree felony counts in May 2018–a month in jail and 18 months’ probation–but stayed the sentence pending Weeks’s appeal. That initial brief was filed at the Fifth District Court of Appeal on June 28. The state hasn’t yet answered the brief: on Tuesday it got an extension to do so.
Weeks was the Flagler County Supervisor of Elections from 2008 until her resignation in early 2015. A grand jury indicted her that May. The conviction, if upheld, would mean that Weeks, in addition to jail and probation, would lose her state pension.
The 43-page brief is centered on six instances in which Kulik argues the court erred. Kulik made some of the arguments in one form or another during previous proceedings.
The heart of his argument is that none of the recordings of phone conversations Weeks had with public officials could be considered illegal because the officials were public, in public offices, conducting the public’s business, with none of the conversations pertaining to anything other than public business. Kulik is arguing in essence that those conversations were the equivalent of public meetings, where permission is not required to record anyone. The trial court had not allowed a definition of “public meeting” to be presented to the jury, either by witnesses or in jury instructions.
“The trial court erred in denying the motion for judgment of acquittal as there was no reasonable expectation that public business communications were not
subject to interception, rendering the evidence insufficient to support a jury verdict,” the brief argues, subsequently elaborating: These telephone conferences–recorded and transcribed absent any stated consent–were no more or less illegal interceptions than the recordings of meetings of public officials discussing public business recorded in any of the charged communications, as any need for consent was obviated by the fact it proceeded before public officials.”
One of those recorded conversations involved at least Weeks on one side and, on the other, arraigned around a speaker phone, then-Secretary of State Ken Detzner, Assistant Division Director of Elections Gary Holland, and Department of State General Counsel Drew Atkinson, with Ron Labasky, General Counsel for the Association of Supervisors of Elections, also on the line from elsewhere. Detzner testified at trial that he had had explicitly asked Weeks that she not record the conversation, which he did not consider a public meeting, but she did so anyway.
Central to the prosecution’s strategy at trial–the case was prosecuted by Assistant State Attorney Jason Lewis–was a separate recording that investigators had found on Weeks’s devices, after her office was searched and various devices seized. The recording was not illegal, nor did the state argue that it was. In that recording, which is also in contention in the appeal, Weeks is heard speaking to an unidentified woman and referring to Detzner as a “son of a bitch,” an “ignorant bastard,” “lying bastard,” and a “dumb piece of shit.”
Lewis at trial argued that he played the recording to the jury to show that the unidentified voice asked about the participants on the tape. Therefore, Weeks had disseminated the tape, against Detzner’s authorization. It was a technicality, but also an effective if legally questionable way for Lewis to use the recording–again and again–to damage Weeks’s standing: distasteful language by or about public officials is not illegal, infrequent, surprising or even scandalous, particularly when spoken in relative privacy. But the prosecution’s repeated use of the clip gave the words the weight of an indictment, and seemed to affect the jury. That was the intention of Lewis, the state attorney’s office’s most skilled prosecutor. “The trial court erred in repeatedly admitting an unauthenticated audio recording in which the defendant appeared to call the Secretary of State vulgar names,” Kulik argues in his brief.
Other recordings with public officials included one with Virginia Smith, then and now the Palm Coast City Clerk, who had spoken with Weeks of issues related to a Palm Coast election, but had done so by phone, alone in a conference room at city offices, with Weeks recording her at the other end. Smith considered that conversation private–not a public meeting. Weeks had also recorded a conversation with an employee at the Attorney general’s office, and an attorney at the Department of State.
The brief also argues that the trial court erred when a witness, a Florida Department of Law Enforcement investigator, testified in front of the jury that Weeks had invoked her Fifth Amendment right against self-incrimination, which could have prejudiced the jury against her. Kulik had asked for a mistrial and was overruled. And the court erred, Kulik argues, when it allowed the same witness to make statements that made it seem as if the investigation against Weeks was sanctioned by FDLE’s screening process, “bolstering the state’s case.”
The brief argues that several points justify a reversal of Weeks’s conviction and a remand of the case to the trial court for a new trial, while other points justify dismissing four of the eight counts against Weeks.
The case is now more than four years old.