Note: for the outcome of today’s hearing, see the later story here.
Almost two years after former Flagler County Supervisor of Elections Kimberle Weeks was indicted on 12 felony counts for recording others without their knowledge, her attorneys today made a double-barreled argument to have the case ended. One motion would have all nine remaining counts against Weeks dismissed. Another would suppress a search warrant that produced almost all the evidence the state has against her.
If the lawyers are successful on the first motion, the case is over. If they’re successful on the second, the case against her collapses, leaving the state with little to fight her with.
The two motions were argued until nearly 1 p.m. today before Circuit Judge Margaret Hudson at the Flagler County Courthouse, with closing arguments scheduled for 2 p.m. Hudson could render a decision today. It’s just as likely that she’ll take the arguments under advisement and write a decision later: that has been her preferred approach in earlier developments in this case, as when she dismissed three of the 12 counts last year.
Weeks’s lawyers had previously successfully gotten those three counts dismissed, emboldening them to go for broke. But those counts had less to do with recordings than with the dissemination of one of those recordings, which had been sent to media outlets after being played at a public meeting. The dissemination was itself illegal, the state had argued. The judge disagreed, since the recording had become public once it was played at a public meeting.
Today’s argument by Weeks’s lawyers was more challenging. Dean Bartzokis, one of Weeks’s two lawyers, argued that legally the charges could not stand without a reasonable expectation of privacy in every case. He argued that in every one of those cases, no such expectation was, or could be, made, because in every case circumstances existed that created a more public than private environment, where such expectations are not reasonable.
But to reach his conclusion Bartzokis took several leaps of reason and slalomed through precedents in such a way as to construct technically compelling syllogisms that could not withstand the prosecution’s more common-sense reliance on how the law defines “reasonable expectations.”
“All of the people who were recorded, they had an expectation of privacy,” Assistant State Attorney Jason Lewis said, whether the content of the conversation was privileged or not. The case hinged on a definition of “expectation.” Lewis did not have to make a case so much as keep his case alive for trial—to give a jury the opportunity to hear the case rather than leave it to a judge to dismiss it wholesale. He began by claiming the cases the defense relied on were cherry-picked to provide justifications that don’t bear out a more complete reading of the cases. Then he argued point by point against the defense’s claims that any of the counts should be dismissed.
To Bartzokis, that expectation of privacy was non-existent in phone conversations between Weeks and the secretary of state (which she recorded against the Secretary of State’s willingness), in a phone conversation she had with Virginia Smith, the Palm Coast city clerk, between individuals in Weeks’s office, who were not aware they were being recorded, or even between Weeks and private individuals she spoke to at her property. In every case, Bartzokis applied an expansive definition of public conversations to every instance. At times the definitions relied on arguments that stretched the definition of “public,” so that the moment an individual spoke on a phone line that happened to be in a government office, the conversation could be considered public because a government office is a public office.
Addressing the count involving the secretary of state, Bartzokis said the recorded conversation was a conference call, and said a conference call could not be expected to be private—a leap of reason that essentially says that no matter how sensitive or private the information being discussed may be, if it’s a conference call, the expectation of privacy is eliminated. “Conference calls, no expectation of privacy, especially for public officials,” Bartzokis said.
Regarding the conversation with Smith, he said, “she’s a public official, it’s public business she’s speaking about,” from a location where “public things are done.” Bartzokis said Smith may have a “subjective” expectation of privacy, but nothing “society would recognize” as such. He did not define “society,” but then added that the argument applies “legally.” In an unrelated count involving Weeks’s conversation with a police officer, which she recorded, Bartzokis said the conversation was on Weeks’s speaker phone and involved police, therefore public, business, while at the other end the cop was on “a police-issued phone owned by a police agency.”
Bartzokis also referred to a conversation Weeks recorded between a FlaglerLive reporter and County Judge Melissa Moore-Stens, at the supervisor’s office. The judge, the lawyer said, had no recollection whether the conversation was being recorded by the reporter (it was not), but had expected the conversation to be private. “I don’t understand how she could be thinking that this conversation is private, she’s speaking with someone from the press,” Bartzokis. But—as Lewis would soon point out–reporters routinely conduct private or off the record interviews—they could not do their job otherwise—which they expect to be private, and assure their sources are private, as was the case in the conversation with the judge: it was off the record, except to Weeks.
Lewis of course didn’t buy any of Bartzokis’s arguments. He brought the case against Weeks. He’s expected to find every motion to dismiss untenable.
Starting with Smith, the Palm Coast city clerk, he said her office is, in fact, private. The fact that others may hear shreds of conversation in passing doesn’t make it less so. Moore-Stens’s conversation with a reporter was within the same expectation of privacy. “Just because he’s a reporter doesn’t mean she doesn’t have an expectation of privacy,” he said, noting the frequency of off-the-record conversations. The Hadeed-Ericksen conversation was whispered, on Hadeed’s part, because Haeed expected the conversation to be private. Lewis provided an example: himself, if he were to briefly step aside during a court hearing to whisper to his co-counsel. That conversation would be private, not public, regardless of the very public setting. In the secretary of state’s case, Ken Detzner went a step further: he explicitly said he did not want the conversation recorded. “He told her, I don’t want you to record it, and she did not honor his request,” Lewis said.
Lewis offered several examples to counter the scenarios presented by the defense, among them an example that sought to expose what Lewis sees as a fundamental flaw in reasoning against many counts: If, Lewis said, the governor were to invite a reporter in his office and the reporter leaves a recording device in the office after leaving, the device will record conversations the governor has with others, in the privacy of his office. According to the defense, that recording would be a public record. But that reasoning would “eviscerate” the law about expectations of privacy.
Lewis referred to the notice at the entrance of the supervisor’s office, cautioning that all may be recorded within. Despite that notice, there is such a thing as fostering an expectation of privacy within. Weeks, he said, had stated explicitly at the beginning of a canvassing board meeting—the meeting at the beginning of the elections cycle that established the rules of subsequent meetings—that she would not be recording meetings.
Bartzokis made his initial arguments in 75 minutes. Lewis took half the time to rebut those arguments before Bartzokis was granted another round of counter-arguments. That was in the first segment of the hearing. The second segment focused on the motion to suppress the search warrant the Florida Department of Law Enforcement’s Philip Lindley served on Weeks’s office in early October 2014.
It was through that search that computers, cell phones and hard drives Weeks used were seized, and from which the recordings in question were found, analyzed and turned into the evidence in the case against her. Successfully suppressing that warrant could demolish the case against Weeks, as her lawyers could then argue that all evidence resulting from the search would be inadmissible.
Lindley got on the case, however, after being told of allegations that there’d been sunshine law violations and illegal recordings. Kendell Ali, the second Weeks lawyer present today, cross-examined Lindley, who was an inspector with the office of executive investigations at FDLE when he served the warrant. Ali was trying to establish that there had been no probable cause for a warrant, namely because Lindley had omitted key information on the warrant. That information “would have defeated probable cause,” according to the motion. The reason: the information was all publicly available.
At one point Ali, holding up a picture Lindley took of the sign at the entrance of the supervisor’s office stating that interiors are subject to recordings, asked Lindley if he had told Weeks that the sign “would save her.” Lindley was incensed by the suggestion, shaking his head no, and Ali withdrew the question. Questioning would later get testy between Lindley and Ali, as the latter sought to undermine Lindley’s impatience with Weeks, who repeatedly denied him access to records even though, in Lindley’s description, she had them “right there in her hands.”
“That angered you that you didn’t get them right then and there, din’t it,” Ali said.
“No, it made me wonder what was going on,” Lindley responded.
“For the life of me and I did public records for two years, there’s no exemptions involved,” he said of minutes of meetings and sign-in sheets, among other things. “What I requested should have been given to me.” But he was only expressing the sort of frustration local officials and reporters had long been familiar with when requesting records from Weeks, when she was elections supervisor.
Lindley, when questioned by Lewis, made clear that when he repeatedly sought public records from Weeks, before drafting the search warrant, she denied him. He also made clear that the information Weeks’s lawyers claimed were not in the search warrant, such as the newspaper articles referring to the allegations of improprieties, were very much part of the multi-page warrant. “No intent to deceive or hide information,” Lindley said in his testimony.
Few people attended the hearing: County Attorney Al Hadeed and County Commissioner Charlie Ericksen, both of whom are named as individuals who had a conversation Weeks recorded, though they thought they were speaking in private; Hadeed was there with an assistant. Weeks herself was present, along with her husband, Duane Weeks. She at first sat on a bench behind the lawyers’ tables, texting on what appeared, from its case, to be the same phone she had used to make her numerous recordings (asked whether it was the same phone, Weeks turned away). She then sat alongside the attorneys just before the hearing started, compulsively swiveling in her chair from then on, and occasionally taking notes and chewing gum. Also present at first was John Ruffalo, a former member of the defunct Ronald Reagan Republican Assemblies, who has been a Weeks supporter. He did not stay. Three reporters and a public information officer from court administration were also present.