Between delays, plea negotiations and covid’s uncertainties, it’s been the case from hell, though a mere five years separate prosecution and defense from an actual deal that would make it all moot–five years in a case in which the defendant has confessed, has already served more than three in jail, and has mental health issues that would make a life term unlikely anyway.
Judge, prosecutor, defense attorney and Nathaniel Shimmel Friday afternoon were yet again in a hearing to prepare for Shimmel’s trial on a first-degree murder charge in the stabbing death of his mother three years, two months and 10 days ago in Palm Coast. The days have been weighing heavily on all four parties because it’s the oldest, most serious case on Flagler County’s felony docket yet to be tried. Circuit Judge Terence Perkins lost patience with it long ago, when he called himself “embarrassed” by the delays.
But he also acknowledged that it was out of his hands: no matter how ready for trial it’s been, the Shimmel case has also become the surreal bellwether of the state of the coronavirus pandemic in Flagler County. The attorneys and Shimmel thought the trial was finally set for the week of Nov. 17. They learned differently on Friday, a week that saw covid cases in Flagler exceed 100 for the second week in a row, before a weekend that would bring the county’s deaths attributed to covid to 40.
“I desperately want to try this case,” Perkins said. But it may not happen yet again.
“I’m not going to try Mr. Shimmel’s case unless I can do it safely, safely for our jurors, safely for you, and all of the court’s staff and the bailiffs,” Perkins told the attorneys and Shimmel, who were each in a different location anyway: Shimmel was at the jail, the attorney were in separate offices, Perkins was in his courtroom, wearing a mask throughout. “I’m just not going to do it unless we can do it safely. And what I’m telling you right now is, if I had to make the decision, if our trial was this coming Monday, I’d tell you we’re not doing it. And this case is the highest priority on my docket. There’s no other case I want to try before this case. So if we can safely do this case, I want to do it.
“But understand that there are issues associated with this case, and I don’t mean legal issues. I’m just talking logistics about the number of jurors we need.” Since it’s a murder trial, 12 jurors and two alternates, not six jurors, will be needed. To pick a jury of that size, the initial jury pool may need to be around 100. Normally, up to 50 potential jurors can be brought into the courtroom at a time, for the jury selection process. Covid restrictions limit that to 25, doubling up on the time necessary to get through selection. Perkins said it could take up to three days, instead of one, further adding uncertainty. “My fear is even if we are allowed from a pub health perspective to pick a jury, and I’m deeply concerned that we may not be, I’m not sure we can get this to the allotted time,” Perkins said.
“I’m not going to know until we get close to trial whether we’re going to be able to go forward on this case,” he said. “I just won’t know what the new health statistics are going to be until probably that weekend, maybe that Friday if not that Monday. That’s just the realities of the circumstances we’re in.”
The 911 Call (Silences and Sheriff’s Redactions Edited Out)
Shimmel is aware that his case is weak: he initially told a 911 operator that a masked man had stabbed his mother. Then he told detectives that the stabbing happened by accident. “She was yelling at me and she grabbed me and I just, I panicked,” he said in an interview with detectives, according to his arrest report. “She just grabbed my arm and just like, just tried to talk to me, I panicked… it just happened.” He was detailed enough in his description to detectives to explain how he had stabbed her in the neck, then stabbed her in the back to make it look like he hadn’t done it, so the story would fit the claim he later made to the 911 operator. “I knew I was going to jail,” he told detectives, explaining why he kept stabbing his mother, Michele Shimmel, who was 60. When deputies responded to the scene, he was covered in blood almost from head to toe. The Shimmels lived at 23 Wellshire Lane.
On Friday, the two sides held a hearing primarily for Perkins to rule on key procedural matters: how many of the 128 autopsy photos would be shown to the jury, and what statements by Shimmel to deputies and detectives would be prevented from being part of the record. Both are powerful elements that play on the jury’s emotions to some extent, so far as the images are concerned, and that go a long distance to incriminate Shimmel in his own words–usually the nearly ironclad equivalent of an offender’s DNA matching DNA found in a sexual assault victim’s exam kit.
Assistant Public Defender Rosemary Peoples lost almost every argument before Perkins on both counts, further closing the window on Shimmel’s case. While Peoples was not opposed to introducing many of the pictures, she sought to breduce the number further from 35, finding them repetitive and prejudicial to the jury. Mark Johnson, the assistant state prosecutor trying the case, said each picture had its own reason, whether to illustrate a specific stab wound or context of the wounds on the victim.
“These are autopsy photographs, the court find them all to be difficult to look at,” Perkins said, explaining why he was rejecting Peoples’s arguments. “You know bec you’re experienced trial lawyers in this area of the law that the jurors will all have a diff time looking and processing this type of picture because they are by nature gruesome and prejudicial.” The question, he said, is whether they are “unnecessarily” prejudicial. “And if they are tied to the medical examiner’s analysis, it is not unnecessarily gruesome or unnecessarily prejudicial in that regard.”
Perkins took the same approach with Shimmel’s statements. peoples had objected to detectives’ questions, which imply opinions in which detectives are not expert. Perkins didn’t buy the claim. Had he done so, much in detectives’ interviews could be deemed inadmissible. “I don’t think that the investigator has to be an expert in every field in order to ask questions in the course of their custodial interrogation,” the judge said. “I don’t think they have to be an export under the legal definition–‘you look drunk, how much did you drink?’” Perkins overruled most of the defense’s objections to certain statements.
With the prosecution’s case seemingly as strong as it is, the two sides have been negotiating for a plea. The state is offering 35 years to life. Shimmel has offered 30 to 50.
“I still hope we can resolve this,” Peoples said. But for now, both sides appear not to be budging over that five-year gap, irrelevant though it would be rendered since it will still be up to the judge to sentence Shimmel to an actual prison term. In other words, both the state’s offer and the defense’s offer would leave Shimmel, by his own concession, facing prison for 50 years (he was 22 at the time of the killing, and has been at the county jail since, time that will be credited to his sentence), assuming the judge opts for the higher end of the sentence. But the prosecution still wants to give the judge room to impose a life sentence–an unlikely scenario in Shimmel’s case, because at sentencing the defense is allowed to bring in numerous mitigating factors that it could not bring in during the trial phase. Those include Shimmel’s mental health issues, which are not minor. He is autistic, and the defense had flirted with an insanity defense.
There was a little bit of jockeying for a deal even near the end of Friday’s two-hour hearing.
“I would like to see if we could maybe get on calendar to resolve it through a plea,” Peoples said. “We wouldn’t need a full day on this one, I’m looking more like a half day. And I’m not trying to put the scales on the spot. [Johnson] has made it clear multiple times that his hands are tied as to what his office is allowing him to do.”
“Ms. Peoples, we really–I’d appreciate it if you wouldn’t pout things like that, you know,” Johnson said.
“I’ll stop with that,” People said.
But the two sides are clearly hoping to make the entire trial matter moot.
