The cases went before Circuit Judge Terence Perkins one after the other Tuesday at the courthouse in Bunnell, some of the defendants appearing by video link from jail: Tammy Almond, accused of manslaughter in the shooting death of her boyfriend Darrell Wilson in Bunnell in June 2018. Benjamin Allen, who was 16 when he was charged as an adult in the first-degree murder of 17-year-old Elijah Rizvan in Palm Coast a year ago. Nathaniel Shimmel, who was 22 when he was charged of first degree murder in the stabbing death of his mother Michele Shimmel in Palm Coast three years ago. Shimmel did not appear in person, though his case was repeatedly discussed.
It was docket sounding, usually the last step before trial, when a date for jury selection and the actual trial week are set. And in each of the three major cases, Perkins told the lawyers and the defendants the last thing he wanted to tell them: it just wasn’t possible to set a trial date earlier than November, if then, however unfair to the defendants. coronavirus restrictions are making it impossible to hold a fair trial within each month’s allotted week-long trial week.
“I’m so embarrassed to say this, but I’ve continued that case 18 times. Eighteen times,” Perkins said of the Almond case. “That’s embarrassing for me, and I’m sure it’s certainly not anything that Ms. Almond is very fond of either. I know she wants her trial. I want to get your trial as soon as I can. But I don’t want to compromise your ability to have a full, fair and impartial trial with the case, and I’m afraid I would if I rushed it. So I will take the blame. I hope Ms. Almond understands and doesn’t blame you for it”–Perkins was addressing one of Almond’s attorneys. Rosemary Peoples; she is also represented by Matt Phillips–“because you’ve done nothing that would cause this to happen. But I’ll do the best I can to get to it as quickly as we can.”
Last month Flagler County drew statewide attention for being the very first county since the April lockdown to hold a partly in-person criminal trial (two civil trials were held in other circuits). The trial was webcast on YouTube, gavel-to-gavel, and appeared to go smoothly, though there were a few issues, such as attorneys’ frustrations with masks. Jury selection had unfolded quicker than expected. But it was still a challenging experience that informed the judge regarding major trials ahead.
“We’re learning new things when we go from the academic to the practical realities of trying cases,” Perkins said. “Mr. Bookhammer and Mr. Babbington taught me a lot in our last trial. So we’re earning each time.” Assistant Public Defender Bill Bookhammer and Assistant State Attorney Phil Bavington had tried the neo-inaugural case last month.
Assistant State Attorney Jennifer Dunton, who is prosecuting the case, had no issue with the delay in the Almond manslaughter case: she needed it to enable an expert witness to visit Almond and prepare for trial. But Peoples was dismayed.
“I know my client really wanted to go this month, your honor,” if it weren’t for the state’s preparations, People said, asking for priority on the October trial docket.
“Absolutely, and I know Ms. Almond has been wanting to go, not just this month, but I think she wanted to go last month and some things came up,” Perkins said. Perkins was in his usual courtroom, 401, at the county courthouse. Peoples and the other attorneys were appearing by Zoom.
“I’m trying to do the best I can to get it there,” Perkins continued, describing the challenges with honoring the defendants’ right to trial. It begins with jury selection, which usually entails cramming 50 prospective jurors at a time in the dozen-odd pews arrayed in the courtroom’s visitors’ gallery, seven jurors in each pew, from which the attorneys on both sides pick their six, or their 12. If they don’t get the needed panel from one batch of 50, another batch is brought in. But with Covid’s restrictions, only two jurors can sit in each pew, lengthening jury selection considerably. If the attorneys need a jury of 12, as is the case in most homicide trials, the challenges double.
Tuesday’s docket sounding was a pre-trial of lawyers’ and a judge’s soul over unprecedented limitations that have upended defendants’ rights, lawyers’ schedules, victims’ expectations of closure, and judicial exactitude for fair trials.
“Let me be honest with you about my concern on this case,” Perkins said. “The way it’s set up, we can receive 25 jurors at a time, taking them and putting them into the jury reception area, and then moving them into courtroom 101 downstairs. So we don’t use the elevator, we bring them right in the front door, right into jury reception, right into the courtroom and we start jury selection. We can do that with them wearing masks and with them remaining socially distanced. We check off all the boxes. We meet all the requirements. We can do that safely, and proof of concept has occurred, we’ve already done it. But in a case of this type, 25 jurors isn’t going to do it. I’m not sure 50 jurors isn’t going to do it.”
Mask requirements alone, he said, create delays when someone says something and it must be repeated for clarity: attorneys have to be certain that they’re hearing what they’re hearing, as do court reporters. Nothing is left to assumptions. “There’s a number of limitations in that regard. I’m expecting it would take probably three days to select your jury,” Perkin s said. “It may take longer. It may take all week. But probably at least three days in fairness to both sides. If you do that and you look at the number of days we have to try it, the math just doesn’t work. You’re going to start calling experts on Thursday? And I’m going to assume you’re giving closing arguments on Friday? I don’t think so.”
Almond, who stood before a remote camera at the jail, didn’t argue.
Then Allen stood where she stood. Allen just turned 18 a few days ago. So he was transferred from juvenile detention to the adult jail in Flagler. He still looked 16, if not younger. He looked bewildered, almost uncomprehending, standing in front of the camera, listening to the attorneys and the judge go back and forth. People accused of homicide have routinely appeared this way in recent years in Flagler, some of them looking indifferent, some of them looking surly, some of them looking defiant, angry, contemptuous. Allen bore none of those looks. It seemed impossible that a person with that expression could have pulled a gun trigger and shot another man–another boy almost his age–dead.
Allen is represented by Gerald Bettman, a Jacksonville attorney, with Dunton also prosecuting him.
“Whatever we do I hope it’s definite, so I can get the subpoenas out, but I know you can’t make any promises” Bettman said. “It’s difficult. I don’t know, your honor. Do you want to make it October? Do you have a week and a half in October?” Bettman of course was throwing a hail mary.
“No, we’re not going to have a week and a half in October,” Perkins said categorically. November might be a possibility, with Thanksgiving being a short week and Allen’s trial likely stretching more than a week. Bettman was responsible to pick a date most likely for him to apply. “We’ll try the best we can to get to Mr. Allen’s case,” the judge said, leaving it at this: “Perhaps November. If things don’t change in our process, probably not. But if they do, and we don’t need a lot of change, but a little change, maybe we can.” That would be the week of Nov. 16.
Then Dunton threw a curveball. “Once we do get open and going, that Shimmel case, if it has to go, I think it’s our oldest homicide case, and it’s far older than Allen,” she said. “So, again, not to discourage Mr. Bettman, but you know, if we’re prioritizing things that way, that would be an issue too.”
“Clearly it’s a bit older,” the judge said. “I would understand the request. But I’m just trying to find a home for Mr. Allen’s case so we can at least enhance the chance of getting to it. I don’t think we can get to it in September as much as I’d like, and October doesn’t look much better, especially with two other cases ahead of it that would likely go, if we could accommodate them. So let’s shoot for November.” Then it was the judge’s turn to try his luck, though he didn’t need any: it’s his calendar, his decision. But he was being considerate of the attorneys and the defendants’ rights. He pushed for January.
“I hate to do that if we can try it next month,” Bettman said.
“Well, we’re not going to try it next month,” the judge said. Betteman agreed to Nov. 16 for now.
Allen took his seat, never having said a word, looking uncertain as to whether he’d understood what had gone on and why. By then Almond had already been taken out of the video-link room at the jail. Allen would soon follow. The attorneys thanked the judge, and the remaining couple of hours of docket sounding focused on less grave, less critical, less challenging cases, at least to all involved but the defendants.