Defense seeks dismissal of remaining counts in former elections supervisor case

Palm Coast Observer
News

Three of the original 12 criminal counts against former Flagler County elections supervisor Kimberle Weeks have already been dismissed, and the defense is asking Judge Margaret Hudson to dismiss the remaining nine.

Weeks is charged with surreptitiously recording private individuals and local and state officials to “have leverage" over them, and with releasing one of those recordings "to embarrass" two local officials, according to the State Attorney's Office.

Recording a person without their consent — and disseminating that recording — is generally a third-degree felony in the state of Florida when the recording was done intentionally. But the defense argues in a motion to dismiss filed Nov. 15 that the individuals Weeks recorded did not have a “reasonable expectation of privacy” when she recorded them, and the recordings were therefore not illegal.

The motion cites case law, arguing that courts, in various instances, have found that a reasonable expectation of privacy does not exist in a person’s place of business, or on a business phone line, or in places where a notice warns people of potential audio surveillance, or in situations where there are other people within earshot.

Hudson will consider the defense’s motion to dismiss at a pretrial hearing at 9 a.m. Feb. 3, she said in a pretrial hearing Nov. 18. If the judge accepts the defense’s argument on all counts, the Weeks case will not go to trial.

If the case does go to trial, Hudson said she would like to see that trial begin in early spring, preferably in March.

Hudson said she’d prepare to clear her schedule for a trial that could potentially last two weeks: Assistant State Attorney Jason Lewis said the prosecution would need three or four days to make its case, defense attorney Kendell Ali said the defense would need two or three days, and time would also be needed for jury selection.

Among the individuals Weeks is charged with recorded are: Florida Secretary of State Ken Detzner; Florida Elections Division attorney Gary Holland; Flagler County Commissioner Charlie Ericksen; Flagler County Attorney Al Hadeed; County Judge Melissa Moore-Stens; Palm Coast City Clerk Virginia Smith; Holly Hill Police Department Officer Michael Coomans; and Shannon Brown, a Flagler County woman whose former husband was involved with Weeks’ daughter.

Hudson, in a decision signed June 24, already agreed to throw out three counts, numbers 7, 8 and 9. Those count pertained to the dissemination of one of the recordings — of a conversation between Hadeed and Ericksen — after Weeks had already played it in a Flagler County Canvassing Board meeting.

"Playing the recording at this meeting made it part of the public record," Hudson wrote in the decision. "As such, the subsequent disclosures of what occurred at this meeting was subject to being heard or viewed by the public and, therefore, cannot be the basis for criminal prosecution."

The following is a listing of the original counts, with a summary of the defense’s argument for dismissal on the grounds of lack of a reasonable expectation of privacy (to view the full motion to dismiss, click HERE):

Count 1: Weeks is charged with recording an April 7 2014 telephone conversation with Palm Coast City Clerk Virginia Smith.
The defense argues: The phone call pertained to public business and was made by Weeks to a public office, during hours of operation; there was therefore no reasonable expectation of privacy.

Count 2: Weeks is charged with recording a May 6 2014 conversation with Shannon Brown, the ex-wife of a man Weeks' daughter was dating.
The defense argues: The conversation occurred outside, on Weeks’ front lawn, with other people in the vicinity; there was therefore no reasonable expectation of privacy.

Count 3: Weeks is charged with recording a conversation with Michael Coomans, a police officer heading a criminal investigation in which Weeks' son was a suspect.
The defense argues: Coomans was using a department-issued phone, and Weeks’ husband and daughter were present on Weeks’ end of the line and listening in and contributing to the conversation over a speaker phone; there was therefore no reasonable expectation of privacy.

Count 4: Weeks is charged with recording a private conversation between Judge Melissa Moore Stens and FlaglerLive Editor Pierre Tristam.
The defense argues: The conversation took place at the Supervisor of Elections Office, a public venue, and the building has a sign on it stating that it may be subject to radio and video monitoring and recording; there was therefore no reasonable expectation of privacy.

Count 5: Weeks is charged with recording a private conversation between County Attorney Al Hadeed and County Commissioner Charlie Ericksen.
The defense argues: The conversation took place at the Supervisor of Elections Office, a public venue, and the building has a sign on it stating that it may be subject to audio and video monitoring and recording. The recording also took place during the time frame for a regular Canvassing Board meeting, and although other members of the board had moved to a room adjacent to the one in which Ericksen and Hadeed were recorded, the door between the two rooms was propped open. There was therefore no reasonable expectation of privacy.

Count 6: Weeks is charged with disseminating the recording of Hadeed and Ericksen (mentioned in Count 5) by playing it at a Sept. 12 2014 Canvassing Board meeting.
The defense argues: See Count 5. If Count 5 is dismissed, Count 6 would naturally follow, because dissemination of the recording from Count 5 would not be illegal if the recording itself were not illegal.

ALREADY DISMISSED: Counts 7, 8 and 9: Weeks was charged with disseminating the recording of Hadeed and Ericksen by sending it to media outlets and to Dennis McDonald, a former candidate for County Commission. Judge Margaret Hudson dismissed all three counts on the grounds that the dissemination mentioned in those counts occurred after the recording had become part of the public record, which happened when Weeks played it in a public Canvassing Board meeting.

Count 10: Weeks is charged with recording an April 3 2014 phone conversation between herself and Florida Secretary of State Ken Detzner, Andrew Atkinson, Ronald Labasky and/or Gary Holland, against their wishes.
The defense argues: Weeks had the phone conversation on speaker phone at the Supervisor of Elections Office, and the conversation pertained to public business. Weeks, at the beginning of the recording, said she would record the call. Detzner said he did not feel comfortable with the call being recorded, but “did not follow up and ask whether Weeks was still recording,” according to the defense’s motion. Detzner was in the Secretary of State’s Office, a public building, during regular business hours when the call occurred. For there reasons, there was no reasonable expectation of privacy.

Count 11: Weeks is charged with disseminating the recording of Detzner and others by playing it for her aunt and uncle.
The defense argues: See the defense argument for Count 10, which concerns the same recording. If Count 10 is dismissed, Count 11 would naturally follow, because dissemination of the recording from Count 10 would not be illegal if the recording itself were not illegal.

Count 12: Weeks is charged with recording a phone conversation between herself and Gerry Hammond and Whitney Anderson, both staff at the Florida Attorney General's Office.
The defense argues: Anderson initiated the call from the Attorney General Office, a public office, during business hours. The conversation included Week’s concern about people violating the election process, and occurred on a hotline for people to inquire about potential illegal activity. For those reasons, there was no reasonable expectation of privacy.