Felony Counts Against Ex-Supervisor
Kim Weeks Back Up To 9 In Latest Twist

The felony count against former Flagler Elections Supervisor Kimberle Weeks is back up to nine, after it’d been chiseled down to five. State Attorney jason Lewis filed the new count on Wednesday, ahead of this afternoon’s status hearing in the case, in the latest surprise in a three-year saga, and just six weeks from a scheduled trial.

This latest move by the prosecution is not exactly a surprise in a tangle of legal one-upmanship that’s been a hallmark of the Weeks case from its inception.

That trial may also include among the witnesses–according to the defense’s filing last week–Melissa Moore-Stens, the Flagler County judge, creating the unusual situation of a trial placing a sitting judge on the stand, before a fellow-judge of the Seventh Judicial Circuit. Margaret Hudson, the judge presiding over the Weeks case, is essentially a colleague of Moore-Stens’s. Hudson frequently hears cases in Flagler.

Moore-Stens was among those Weeks surreptitiously recorded during an off-the-record conversation with a FlaglerLive reporter, though the court threw out felony count against Weeks stemming from that conversation. Moore-Stens also chaired the canvassing board, on which Weeks sat, and witnessed numerous contentious issues.

The substance of the counts against Weeks hasn’t changed. But the change, both tactical and strategic on the prosecution’s part, is still significant, as it has a direct bearing on how a jury would perceive the list of charges against her (a defendant facing nine charges simply looks more suspicious than one with two, three or five counts) and could just as directly impact the penalty phase, should it get to that. Though the prosecution denies it, the move is likely designed to turn up the pressure on Weeks–and give a potential jury less room to maneuver toward not-guilty findings even though the prosecution has only split off individual offenses that had previously been grouped together, assigning them individual counts.

As Assistant State Attorney Jason Lewis explained it, “if I was to rob you, you and you in the store”–he was pointing to three reporters asking the question, “everybody is a victim.” Asked why he hadn’t done it from the outset, he hesitated a while before answering: “At the time I thought the right thing, to keep everything combined, I thought it would be a case that would resolve itself. Moving forward it would have dragged the community through a lot of stuff, but if it goes to trial each person is a victim entitled to have their case heard individually.”

The jury, in any case, will not (or should not, if it’s honest with lawyers during jury selection) have known the history of the counts against Weeks. All it would know is that she faces nine felony counts. The judge has yet to rule on whether the counts will be presented to the jury as submitted: Weeks’s lawyer has yet to review them, though since the judge has previously ratified the substance behind those charges, she’s not likely at this point to accede to a defense motion to re-argue or revamp the counts yet again.

Weeks was indicted on 12 felony counts in May 2015, four months after resigning as elections supervisor–a one-and-a-half-term tenure defined by conflict. The third-degree felony counts related to allegations that she had illegally recorded phone and in-person conversations without the speakers’ awareness or consent, and in some cases had allegedly transmitted those recordings. Her lawyers since have effectively argued that many of the counts were invalid, reducing them to five. Each count carries a maximum penalty of five years in prison, and while theoretically Weeks could, if found guilty, be sentenced to successive rather than concurrent years, it is rare that a judge would impose such punishment successively–assuming there’d be any prison time at all. There are no mandatory minimum sentences in play here, and probation could also be the final result–again, assuming a jury finds her guilty on any one of the counts. By angling for a trial, Weeks thinks she can be cleared.

Lewis, who is prosecuting the case, has offered her a way to plea. The specifics of the agreement are not known, but are believed to have entailed a significant reduction in the charges, perhaps down to as low as one, and only probation–no jail or prison time–in exchange for a guilty plea. Weeks has rejected it. If she were to either plead guilty or be found guilty on any felony count by a jury, she would lose her government pension and be branded a felon for life–losing, as well, such rights as owning firearms (Weeks has been known to pack a gun).

On the other hand, a guilty finding may not be the end-all if, for example, “lesser-included” charges were part of the jury’s instructions: if prosecution and defense agree to include such lesser charges on the jury’s list, she could be found guilty of mere misdemeanors. It would not be a victory for Weeks, but close: she would not be a felon, she would not lose her pension, and she could claim that a colossal amount of energy was marshaled against her only to result in misdemeanor findings.

But that’s still a long distance away, and likely as much of a gamble on Weeks’s part as gambling for a trial.

After a nearly-three-year court battle, she is still so far insisting on rejecting a plea and going to trial, a trial currently scheduled, with perhaps more hope than realism, for April 2.

“At this time there is no possibility of a plea?” Circuit Judge Margaret Hudson asked Kevin Kulik at the end of a status hearing this afternoon in Flagler Court.

“I don’t believe so judge, you know,” Kulik replied by phone from his Ft. Lauderdale office, his voice pitched more toward resignation to the fact than any zeal for it, and his carefully chosen words suggesting he may not have had a say in the matter. “It would appear that my client wants to go to trial.” (It’s not unusual for judges to allow lawyers to appear by “court phone” for status or pre-trial hearings.)

“If there is a change of heart, please advise the court at the earliest possible convenience,”  Hudson said.

Other issues came up today. Two of the prosecution’s witnesses are scheduled to appear by video link rather than in person, because one of them–J. Andrew Atkinson–has just been appointed a judge of the Second District Court of Appeal and another–Shannon Brown–moved to Michigan. Kulik didn’t want them appearing by Skype, arguing to the judge that a jury needs to see witnesses’ reactions and demeanor clearly, and that a defendant has a right to confront her accusers. “It separates the witnesses from the trial too much,” he said.

But Hudson didn’t buy the argument, at least the way Kulik put it. “I think they can see them better on our big TV screens in this courtroom than they can on the witness stand so you might need to come up with a little bit better argument than that,” Hudson said in an unusually blunt rebuff to an attorney. “I understand the confrontation clause and I’ll have to look at it in the context of that. But I am not sure that that’s the–that there’s any reality to that concern in this particular courtroom. I understand if we were trying to do it off of Mr. Lewis’s laptop, and [was] very difficult  to see the witnesses. But I think their demeanor and their facial expressions are going to be enhanced, not reduced in any way. But we’ll flesh out those issues.”

Hudson is not disallowing further, formal arguments on the issue even though it’s up to her discretion. Hudson has not showed a hint of imperiousness so far and has strived to give each side ample leeway to make their arguments.

So there will be another hearing, yet to be scheduled, for the defense to argue any issues arising from the newly filed set of charges, and the matter of witnesses appearing by Skype. But Hudson signaled to the lawyers that she would do what she could to stick to the April trial date, when, according to Lewis, up to 300 potential jurors may have to be pooled, out of which six would be chosen. He’s accounting for the degree of coverage the case has received, which may have diminished the number of jurors coming into the courtroom untainted by too much knowledge of the case.

Weeks herself did not appear in court today. The only audience were three reporters and Sean Moylan, the assistant county attorney, who’s been keeping tabs on the case throughout as it involved county officials, including at one point Al Hadeed, the county attorney. It no longer does. But county officials, including Hadeed and County Commissioner Charlie Ericksen, still appear on witness lists. It was their recorded conversation that triggered the Weeks case.