Skip to main content

Did Florida shooter make his case on the stand?

By Danny Cevallos
February 12, 2014 -- Updated 1723 GMT (0123 HKT)
STORY HIGHLIGHTS
  • Danny Cevallos: Michael Dunn's testimony highlights important legal points in his murder case
  • Cevallos: Dunn is not George Zimmerman; his self-defense case is comparatively weak
  • He says Dunn had to prove he had a reasonable fear of being seriously harmed
  • Cevallos: Also, he had to explain why he fled, why he shot 10 rounds into the teens' car

Editor's note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Philadelphia and the U.S. Virgin Islands.

(CNN) -- As Michael Dunn, charged with murder in the killing of an unarmed black teenager, took the stand on Tuesday in his own defense, once again the nation focused on Florida, gun violence, and the evolution of self-defense. His testimony crystallized important points in this case.

Dunn is not Zimmerman: We have to stop drawing comparisons between the Dunn case and that of George Zimmerman, accused of killing unarmed teenager Trayvon Martin.

About the only thing in common between the two cases is that a human being lost his life, and another human being is the defendant. Oh, and John Guy, the prosecutor, who has had the roulette wheel of high-profile cases pick out his number twice in two years: He has been involved in both cases.

Danny Cevallos
Danny Cevallos

But even then, the cases are nothing alike. Zimmerman's was a strong self-defense case. Dunn's is a comparatively weak self-defense case. Zimmerman fired one shot and waited around for the police. Dunn squeezed off 10 rounds -- then took off and got a pizza. The differences are so great that they should not be compared. Dunn is more significant for the self-defense issues raised in the case.

Should Dunn have taken the stand? Many were surprised when Dunn took the stand in his defense -- conventional wisdom among defense attorneys is that defendants should not. After all, when was the last time a high-profile defendant did that? George Zimmerman certainly did not.

The rules of evidence and testimony are a one-sided affair, in which the cross-examining prosecutor has all the advantages. If the prosecution cannot meet its burden, or the defense can make its case without the defendant's testimony, then there is often little to gain and much to risk in putting a defendant on the stand.

Dunn's problem is that the prosecution has met its burden, and the defense cannot make its case without his testimony. In the Zimmerman case, the defense was able to establish the defendant's reasonable apprehension of imminent serious bodily harm through photos of his wounds. Sure, Zimmerman could have taken the stand to say "I was scared," but the defense team made a risk analysis: If they already established objective evidence of his fear, they could avoid the massive risk of his being torn apart on the stand.

Loud music shooter: I feared for my life
Graphic evidence in loud music trial
Dunn: "It was life or death"

In the Dunn case, there is very little objective evidence of an aggressor placing Dunn in fear of his life, so he had to tell the jury how afraid he was. Dunn's testimony, then, will largely determine whether these jurors find him guilty or not guilty. So what did we learn from his testimony?

Opinion: Florida shooter saw black, thought 'threat'

Preparation helps: Dunn's attorneys did a good job preparing him for his testimony. If Dunn did a bad job of hiding his preparation, a jury might see through that, but that's on Dunn -- not his lawyers. Notice how Dunn crowbarred the words "death" and "imminent" into his direct testimony. Remember, the jury instructions at the end of the case will have those words in them.

The defense hopes the jury will make a connection with the judge's authoritative instruction on the law, and the defendant's own words about his state of mind, as in: "Hey, the judge said he must have fear of 'imminent' harm, and he said the word 'imminent,' so he had the reasonable fear!" Injecting these words also allows his attorneys to argue those facts in closing argument. Of course, merely stating a fear of imminent death does not make it a reasonable fear of imminent death, but words alone can have a subconscious effect.

Flight as consciousness of guilt: "The wicked man fleeth, when no man pursueth." Proverbs 28. Dunn left the scene of this crime, and it will be critical to determine why.

Flight to avoid prosecution may be considered "consciousness of guilt": evidence of guilt the jury may consider along with other evidence in the case. Of course, if he left for another reason, like fear for his life, then the flight is not as damaging.

As with many things, we cannot look into Dunn's mind, so we have to evaluate circumstantial evidence, and now his own testimony. Dunn testified about being afraid of vengeance by "local gangsters." That's good strategy by his lawyers, to establish an ongoing fear that explains his fleeing the scene. However, the jury may have heard that instead as him stating his belief that trash-talking men of color are usually gangsters.

Dunn may have missed the mark on this point, though his purpose was clear. Also damaging was his weak answer to the critical question: Why didn't you go to the police right away? His answer? "I didn't think I did anything wrong." Sir, you just shot up a Quik-E-Mart parking lot like the O.K. Corral. You may not think you did anything wrong, but don't you think the police might at least want to fill out some paperwork? Perhaps ask you a few questions? Strangely, Dunn's flight -- something he did after the killing -- may be the most damaging piece of evidence against him.

The car filled with bullet holes: Dunn blasted 10 shots into the car. That's a problem for him. The jury is very likely to conclude that firing multiple shots is evidence of intent to kill or is a sign of excessive force. This is why Dunn's testimony needed to put the jury in the heat of the moment, to show them how fast shots are fired; how close the aggressor was; that an aggressor can keep approaching after one shot; and how long it takes in a deadly situation to realize that the threat is over. The defense needs to convince the jury that even after Dunn shot 10 times, really only a couple of seconds had elapsed and he still believed there was a real threat.

Consider how different the case would sound to you if Dunn testified that he fired 10 shots over the wide span of a minute -- which he did not. What a contrast. A minute would make Dunn look like a cool, detached serial killer, who took his time executing unarmed victims. The number of shots is tied directly to the time it took to squeeze them off, which in turn is tied directly to the urgency of Dunn's actions.

Dunn needed to score some major points here and bring the jury into the crisis and the moment with him. The verdict will show if he was successful.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
July 22, 2014 -- Updated 1356 GMT (2156 HKT)
Ukraine's president says the downing of MH17 was a terrorist act, but Richard Barrett says it would be considered terrorism only if it was intentional
July 22, 2014 -- Updated 2015 GMT (0415 HKT)
Robert McIntyre says the loophole that lets firms avoid taxes should be closed
July 22, 2014 -- Updated 1928 GMT (0328 HKT)
Aaron Miller says Kerry needs the cooperation of Hamas, Israel, Egypt and others if he is to succeed in his peacemaking efforts
July 22, 2014 -- Updated 1535 GMT (2335 HKT)
Jeronimo Saldana and Malik Burnett say Gov. Perry's plan to send National Guard to the border won't solve the escalating immigration problem.
July 22, 2014 -- Updated 1742 GMT (0142 HKT)
Sally Kohn: The world's fish and waters are polluted and under threat. Be very careful what fish you eat
July 22, 2014 -- Updated 1242 GMT (2042 HKT)
Les Abend says threat information that pilots respond to is only as good as the intelligence from air traffic controllers. And none of it is a match for a radar-guided missile
July 21, 2014 -- Updated 1235 GMT (2035 HKT)
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
July 21, 2014 -- Updated 1227 GMT (2027 HKT)
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
July 21, 2014 -- Updated 1157 GMT (1957 HKT)
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
July 21, 2014 -- Updated 1417 GMT (2217 HKT)
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
July 18, 2014 -- Updated 1642 GMT (0042 HKT)
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
July 19, 2014 -- Updated 0150 GMT (0950 HKT)
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
July 18, 2014 -- Updated 1507 GMT (2307 HKT)
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
July 20, 2014 -- Updated 1755 GMT (0155 HKT)
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
July 21, 2014 -- Updated 1953 GMT (0353 HKT)
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
July 18, 2014 -- Updated 1933 GMT (0333 HKT)
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
July 18, 2014 -- Updated 1011 GMT (1811 HKT)
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
July 17, 2014 -- Updated 1914 GMT (0314 HKT)
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
July 17, 2014 -- Updated 1206 GMT (2006 HKT)
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
July 17, 2014 -- Updated 1214 GMT (2014 HKT)
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
July 17, 2014 -- Updated 2016 GMT (0416 HKT)
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
July 18, 2014 -- Updated 1601 GMT (0001 HKT)
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
July 18, 2014 -- Updated 1404 GMT (2204 HKT)
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
July 17, 2014 -- Updated 1729 GMT (0129 HKT)
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
July 16, 2014 -- Updated 1804 GMT (0204 HKT)
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
July 17, 2014 -- Updated 1518 GMT (2318 HKT)
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
July 17, 2014 -- Updated 0124 GMT (0924 HKT)
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
July 16, 2014 -- Updated 1641 GMT (0041 HKT)
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT