In Case Against Kimberle Weeks, Tactical Motions Lead to Likely Turning Point in March

Former Supervisor of Elections Kimberle Weeks was indicted eight months ago on 12 felony counts of illegally recording and disseminating phone and other conversations. At this rate, and even though the state is ready for trial, it may be another eight months before Weeks’s trial is set, if the case goes that far, and if it is limited to a single trial: her attorney wants three. The case may then culminate in the thick of the 2016 election season—which may be just what Weeks, who’s never been accused of lacking theatrical savvy, is angling for.

Between now and then, Joerg Jaeger, the attorney, also wants Circuit Judge Margaret Hudson—brought in on the case when Judge J. David Walsh declared a conflict of interest early last year—to rule on a series of motions, some of which are common but legitimate delaying tactics, some are closer to housekeeping or nitpicking, and one—also not an unusual technique– appearing to be a tactical attempt to weaken or discredit the state’s case before trial. Jaeger outlined that approach in a pre-trial hearing before Hudson Friday.

The next pre-trial hearing won’t be scheduled until Hudson rules on all these issues, following a hearing on the motions, likely to be held in March. Weeks herself was not at the hearing Friday: she has not attended any of the pre-trials, though she will be at the March hearing, her attorney indicated, as she will be required to certify the validity of certain documents. As in previous hearings though, the courtroom was not bereft of her partisans. This time, she had three in attendance, all of them current or former members of the Ronald Reagan Republican Assemblies, the right-wing pressure group: Dennis McDonald, John Ruffalo and Mark Richter. The first two, McDonald especially, had been frequently attended the contentious canvassing board meetings held at the supervisor of elections’ office in Weeks’s final year, when the allegedly illegal recordings were made. McDonald’s and Ruffalo’s presence in the courtroom may also hint at where Weeks may be getting at least some help paying her legal bills.

The minor motions were almost all resolved Friday: Jaeger pointed out that some of the dates of the recordings in question provided in the indictment did not match the dates provided by some of the individuals being recorded, when they spoke of the conversations under oath. He wanted all dates to match. Two of those dates were resolved at Friday’s hearing. A third will be resolved once the state, represented by Assistant State Attorney Jason Lewis—State Attorney R.J. Larizza’s lead prosecutor—amends the document in question with the proper dates.

Jaeger then prompted the state to make a notable revelation, which may be treated as a concession to the defense once the judge rules on it as it could reduce the number of counts against Weeks: the ex-supervisor faces four felony counts for disclosing allegedly illegal recordings to others. The counts, in fact, relate to a single recording—that of the conversation between County Attorney Al Hadeed, who was the canvassing board attorney last year (a representation Weeks never recognized; she had her own attorney) and County Commissioner Charlie Ericksen, who was an alternate member of the canvassing board until he resigned after Weeks maneuvered to get him removed, citing his buying a dinner at a campaign event for another commissioner.

That conversation, recorded on Aug. 25, 2014, was the spark of the case against Weeks. It was the conversation the county administration seized on to claim that Weeks was engaged in illegal activity. Weeks and county government had been engaged in recurring conflict much of the year. The recording was made on her cell phone, which had been left in the board meeting room of the supervisor’s office, during a canvassing board meeting, while the members of the board had moved to another segment of the office to conduct other business with voting machines and such. Weeks has contended that the recording was not illegal, since it was being made in the context of a public meeting in a public venue where, at the entrance, a sign clearly indicated that people were subject to recording. The state is contending that the recordings were illegal because they were made without Hadeed’s and Ericksen’s knowledge.

Weeks disclosed some of that recorded conversation at a public canvassing board meeting on Sept. 12, 2014. Disclosing it at that meeting may have been illegal (it is one of the felony counts against her). But Jaeger contends, correctly according to Florida’s sunshine law, that if the state piled on additional counts against Weeks because she disclosed that same recording to others subsequent to the Sept. 12 meeting, the counts should not stick, since the recording had already been aired. And, in fact, those three subsequent counts refer to dates that followed the Sept. 12 meeting—Sept. 15, 17 and 19.

Gray areas abound in such cases. For example, the state may yet contend that since Weeks did not disclose the entirety of that conversation at the public meeting, her disclosure of other parts of the conversation—which, the investigative report alleges, was spliced and edited—still amount to individually illegal disclosures. So the additional felony counts would still stick, even if her disclosures were made after the public meeting. But if the judge goes with Jaeger’s argument, then some of the felony counts would have to be dropped.

“Obviously all of those disclosures were in reference to a conversation that was recorded between Commissioner Ericksen and Mr. Hadeed,” Lewis said to the judge. “There were four different disclosures of that conversation to different people at different times. That’s what that entails. It is the same disclosure. Some were to newspapers, some were to a radio station, some were to a meeting at large, disclosing it to those folks.”

“That will call for a motion, now that we know those are in fact the same statement, just to different bodies,” Jaeger said.

Jaeger then turned to his motion to “sever” the 12 counts into three distinct group, each, according to Jaeger, requiring its own trial.  The reason: Five counts relate to allegedly illegal recordings Weeks made in her capacity as supervisor of elections. Two counts relate to recordings were made in her private life, with private individuals (including a funeral director). And another conversation was a recording with Palm Coast’s city clerk, Virginia Smith, regarding the Palm Coast election cycle and, in Jaeger’s view, constituting yet another separate issue.

The state disagrees with that approach, not just because of the added costs and time demands on the court system (which also inclines judges to look skeptically on such motions) but because the subject matter of the conversations is not the issue, as far as the indictment is concerned. Only the legality of those recordings is. In other words a recording is no less illegal—and no differently so—if it involves a public official recording someone in her public capacity, if it involves that same public official recording a private individual in a private conversation that has nothing to do with public issues, or if it involves a private individual recording another individual: the law addresses all in stances in the same way, as does the indictment against Weeks. To “sever” the counts into three separate trials, the judge would have to concede that the content and the nature of the individuals being recorded had significant relevance to the criminal charges—a contention even the defense has not yet made.

“We’re going to have a little argument about that, I hope it’s not two hours,” Jaeger predicted before Judge Hudson.

Then there was the matter of the Florida Department of Law Enforcement’s search warrant, served at her office on Oct. 3, 2014. Jaeger wants that search warrant suppressed. If he succeeds, that would deal a possibly fatal blow to the state’s case, as anything seized in the course of that search would be deemed inadmissible. “The evidence sought to be suppressed,” the defense’s motion reads, “includes any and all information obtained as a result of the unlawful search” of Weeks’s office. That would include emails, cell phones, transaction records, compact discs, ownership records relating to the domain flaglerelections.com—Weeks was found to have used a separate server from the one other government agencies were using–and so on. Jaeger claims the search warrant “omitted material information that would have defeated probable cause.”

One of the issues Jaeger raises in his motion is the clear notice at the entrance to the supervisor’s office that premises “may be subject to audio and video monitoring and recording at any time.” It’s in that  motion to suppress that Jaeger makes the case that the key recording—between Hadeed and Ericksen—was never done illegally, since it was in the context of an ongoing public meeting, even if most of the individuals involved in that meeting had moved to an adjoining but clearly visible and somewhat audible room. The motion then goes into many of the details of the controversy surrounding that recording—details that have been hashed and rehashed, not least by Weeks herself starting at that September meeting where she disclosed the recording.

The affidavit for the search warrant was drafted by FDLE agent Philip Lindley, since retired, and singed by Circuit Judge J. Michael Traynor in St. Augustine.

It’ll be up to Hudson to decide whether to consider the search warrant admissible or not, a decision that will bear on the case as a whole.

Jaeger was not done: he also raised issues with Hadeed’s employment contract with the county, questioning what and how he billed his time to the canvassing board (and revealing that his public record request to the county regarding that information, made several weeks ago, has yet to be honored, even though the county billed him $370 to fulfill the request and he paid the bill. It had long been a county complaint of Weeks that she was not prompt or comprehensive in her responses to public record requests.)

Before hearing the motions argued before her in March, Hudson will have to hear hours of recordings. Lindley will have to be located (neither side has his address) and other people relevant to the case, including Ericksen, may be subpoenaed to that hearing, which may prove to be a turning point in the case against Weeks.

Weeks was indicted on the 12 felony counts last May. She had resigned four months earlier, citing family issues. Gov. Rick Scott named her deputy, Kaiti Lenhart, supervisor of elections. The office has been quiet since.