The five-year old case against Kimberle Weeks ended today as a circuit judge sentenced the former Flagler County Elections Supervisor to 30 days in jail and 18 months of probation on each of five felony counts of illegally recording and transmitting phone conversations when she was a supervisor. She’s also to pay close to $3,000 in fines and court costs.
The five sentences are to run concurrently. Weeks is to report to the Flagler County jail by noon on Aug. 4. She’ll have two days’ credit for time served. As a convicted felon, she’ll also lose her state pension.
It was the second time in two years that Circuit Judge Margaret Hudson was sentencing Weeks. Hudson first sentenced Weeks in May 2018 on seven felony counts and Weeks pleaded guilty to one more, appealing the case to the Fifth District Court of Appeal. The Fifth District last March threw out some of the counts on double jeopardy grounds but upheld Weeks’s conviction on the remaining four and ordered a re-sentencing. Weeks had also pleaded guilty on a fifth count.
“They did nothing to the sentence that was actually imposed, and the sentence that was imposed on May 18, 2018, has not been changed,” Hudson said of the appeals court as she handed her sentence. She disagreed with Weeks’s attorney on delaying the jail sentence. “The sooner the better,” the judge said said. “We need to get her in and out.”
Kevin Kulik, Weeks’s attorney had pleaded for a suspended jail sentence. He said Weeks is “approximately 60 years old” (She’ll be 60 next April), not in great health, and jails are hot spots for Covid. “Due to the pandemic, you could suspend that.” He also asked for less than 18 months of probation.
Assistant State Attorney Jason Lewis, who prosecuted the case throughout, said at the original sentencing the court had weighed all the evidence and made the right balance, almost $3,000 in restitution and other costs. “I don’t think anything that the appellate court did changed anything that happened that day,” he said of the originals sentence. He asked for the same sentence–a month in jail and 18 months’ probation. He proposed pushing the jail sentence by nine months if necessary, and pointed out that the Flagler County jail hasn’t had a single covid case among inmates (it’s had a handful among corrections deputies).
Hudson agreed with Lewis.
Lewis filed 16 felony counts against Weeks since she was indicted in May 2015, months after she resigned the position to which she’d first been elected in 2008, and re-elected in 2012. The case went to trial in April 2018. A jury found her guilty on seven counts. Weeks through her attorneys maintained that the recordings she’d conducted involved public officials speaking in the context of their public duties. Though the officials–who included Palm Coast City Clerk Virginia Smith and then-Secretary of State Ken Detzner–spoke from the privacy of their offices, they nevertheless were speaking of official business, making the conversations equivalent to public meetings, which may be recorded without anyone’s authorization.
That was the argument her lawyers made. Neither the jury nor the court of appeals bought into what would have been such an expansive interpretation of what constitutes a public conversation that in essence all electronic communications with all officials would have been fair game for unauthorized recordings as long as the conversations involved public business.
The sentencing hearing was held by Zoom. It went poorly. As the hearing started at 2 p.m., Weeks was audible but not visible. Hudson insisted on holding the sentencing with Weeks visible. “We don’t have internet out here, high-speed internet out here like the rest of the county does,” Weeks said, speaking from her phone. She said she’d make her way to a “place of business” to get on a desktop computer. Lewis proposed that she drive into Bunnell and appear directly from the county courthouse, where a connection would be certain. Weeks didn’t seem interested.
The state was not calling any witnesses, and was under the impression that the defense would not call any either. But Weeks wanted to have character witnesses speak on her behalf. The roster of witnesses read like a reunion of the long-defunct Ronald Reagan Republican Assemblies club, including Dennis McDonald, the perennial political candidate and gadfly at county and Palm Coast meetings, Janet McDonald, the current school board chair (who was herself about to chair a meeting of the board), John and Carol Ruffalo, and “a potential witness named Mark Richter,” as Kevin Kulik, Weeks’s attorney, described him. There were other witnesses as well. Some were visible, some not.
“I have one hour set aside for this hearing, I don’t know that this is going to occur with this number of witnesses,” the judge said, as various ambiant sounds came through, some from Weeks’s end, some from Janet McDonald’s end–doors slamming, phones ringing, unidentified people talking–until the judge, 20 minutes into the hearing, announced she’d take herself off screen and return in 20 minutes to decide what to do. “So I guess we’re just supposed to sit here and wait?” someone said. “Correct.” Then an out-of-breath Weeks called for the judge, who reappeared, so Weeks could tell her she was trying to connect with a camera. More ambiant noises from her end and Weeks speaking to someone. Then some of the witnesses tried to speak to each other to pass the time.
“OK I’m logged in is there anyone that can tell me how I can connect?” Weeks said 24 minutes in. Hudson tried to school her in Zooming. “Oh it says ‘join the meeting,'” Weeks said. “I found it.” At 2:25, Weeks appeared. She was in the front seat of a vehicle. The hearing started in earnest at 2:27. As Hudson summarized the history of the case since Weeks’s conviction, Weeks seemed to freeze, then disappear from the Zoom meeting.
More history followed. Lewis noticed Weeks had disappeared. She reconnected. “I only see you from your nose up, is there any way you can turn the camera?” the judge asked her. Weeks did so, and from that point on, the glitches were kept to a minimum and the hearing was able to proceed with relative smoothness.
Kulik urged the witnesses to speak quickly, since time was very short. Celia Puglese, a long-time poll worker during Weeks’s tenure, spoke of Weeks’s honesty and dedication, and being a “wonderful family lady” with a “great character” and “an asset to the community.” She asked the judge not to take the sentencing “to the extreme of what I’ve read.” Dennis McDonald yielded his time to his wife Janet, so she could then make it to her school board meeting. Janet McDonald, who spoke by phone only, spoke of her running the office “with clarity, with honesty, with integrity,” as people tried to “undermine her” and circumvent the rules, though Weeks would “have none of it.” She also twice called the charges against Weeks “a travesty.”
Witnesses in such hearings are not generally held to the standards of evidence that apply at other stages of the proceedings, but even then there are limits, which Lewis pointed out in an objection to McDonald’s statements: Her claims about the charges, he said, “wasn’t relevant, attacking the conviction and that sort of thing is not really in the province of a character witness” The judge upheld the objection.
Others spoke of Weeks as a “giving and caring lady,” of her kindness, of being “distressed with this entire situation since being convicted,” and so on, with Mark Richter’s testimony eliciting another objection from Lewis: “I’ll only consider those that are relevant and legal at this point,” Hudson said of the testimony.
After the sentencing, Weeks wondered to the judge whether she could still vote, before going to jail.
“You are now an adjudicated felon,” Hudson said. “Until you complete your sentence and pay your fines, you won;t have your rights restored,” she said. But she did not know what happened between now and then–whether Weeks could take advantage of early voting, for instance, or vote by mail. Lewis cautioned that Weeks should speak with her attorney before proceeding.
“Would I be prosecuted if I vote?” Weeks asked Lewis. Her attorney said he would speak with her.