Saturday, November 4, 2017

True Crime Story: The Fatal Word

David Grant with his sister Dorothy
On July 17, 2012, 28-year-old student Joni Donley showed up at a Dunkin' Donuts to meet his 48-year-old math tutor, David Grant.  Donley needed Grant's help to prepare for a calculus test at Broward College the following day.

Sometime later, a delivery man heard the two men arguing at a table.  The South Florida Sun-Sentinel described the argument "spill[ing] over to the patio."  Two witnesses said the sudden altercation turned physical after the white tutor called the black student a racial slur.  Donley went berserk and beat Grant to death. 

How did a tutoring session come to a fatal end?

Donley and Grant had developed a tense relationship while working together in lengthy tutoring sessions for months.  Insight into the relationship was provided to police by a mutual acquaintance, Tameika Osbourne.  Detective Paul Williams, who questioned Osbourne, wrote:
Osbourne stated she has known Donley for the past few months since they attend the same classes together at Broward College.  Osbourne and Donley are in the same Calculus 2 class which began in mid-May 2012.  Osbourne stated she was having some difficulty with the class and Donley provided her with the phone number of a math tutor, David Grant.
Osbourne, whose minor was psychology, was intrigued by Donley’s body language.  She said:
[T]his is crazy but when I first met Jon, I says. . . "You have a very aggressive aura about you."  And he was like "What do you mean?"  And I said,. . . "You're not an ex-con, are you?"  That was a joke that we said and I did not know this was going to happen.  He said, "I look like an ex-con?"  I said, "No, you have this, like, aggressive kind of. . . kind of like strong, powerful, like you know like you don't put up with a lot."  And he was like, "Well, you could probably say I'm very strong and I'm very like. . . not really strong-willed but kind of [aggressive]" - well I don't know how to explain it. . . [H]e seemed like a strong, dominant type of person and that's what he is.
Williams wrote:
Osbourne began tutoring sessions with Grant and Donley and would meet in Dunkin' Donuts, Denny's, Starbucks, and the Nova University Law Library.  All of the meeting places were located in Davie along University Drive because Grant rode a bicycle.  Osbourne stated that Grant charged $20 per 2.5 hour tutoring session.
Osbourne explained that Donley is "a very intelligent guy," but he was a biology major and he wasn't cut out for math.  She said that she, as a math major, found Calculus II difficult and it was understandable for a biology major to be struggling with the material.

Osbourne could see there was tension between the two men.  Williams wrote, "Osbourne stated that several times she observed Grant get frustrated because Donley would not understand things as easily as she did.  Osbourne also stated that Grant had to explain things several times to Donley, which led to mutual frustration." 

Osbourne said, "David would say something slick. . . [Jon] wouldn't respond.  He would just say, 'All right, just go ahead.  All right, just start with the tutoring; just start, just start.'"

She remembered a time that Donley and Grant were egging each other on.  Grant went out of his way to resolve the conflict.  He explained to Donley that he had to cooperate if he wanted him to help him.  "You know," said Grant, "you got to give me some slack."  She said that Donley calmed down and agreed to cooperate.  He said, "Okay, you know what, I'll do what I have to do."

Both men were distressed about the conflict and confided in Osbourne about their feelings.  Osbourne said, "[Jon] used to always tell me, 'He always be getting mad, man; he always be getting mad.  I don't know what's wrong.'  He used to always say,. . . 'Why is he doing that? He be tripping, man.  David tripping, man.  David trip.'"  Osbourne added, "Jon has to hold his temper and I can tell that."  She thought that it especially bothered Donley that Grant yelled at him in front of a girl.

Grant told Osbourne outright that he sensed conflict from Jon during their lessons.  Osbourne said:
I know there was a time when me and David were meeting up and he said that he knew that there is a type of racial kind of um. . . kind of tension between them because he. . . he acknowledged the fact that he was a white redneck male and he. . . you know, and that Jon was a black prideful man and that sometimes he feels like. . . he felt like that would kind of. . . conflict with the lesson because it's almost as if Jon didn't really want to ask "Okay, well can you explain that further?" because you know David probably even would get mad and then that would make Jon upset because, you know, of the racial situation and it's almost as if he was begging him for service. . .
Without a doubt, it is the duty of the tutor to have patience with a student in need of instruction.  But this student may have presented too much shame, anger and resentment for a tutor to take on.  It's hard enough to teach the formulas and theorems of calculus without having to take on board a student's cumbersome emotional baggage.  Grant found himself losing patience with Donley.  Osbourne said:
[David] would tell me that he has to yell at Jon sometimes, "Because I have to yell at him because it's like he just doesn't get it, he just doesn't get it.  And I know [Jon] is pissed at me, he's upset with me, he hates me because sometimes I just have to yell at him.  You know, he just doesn't get it."
Osbourne said that, one time, there was confusion over the schedule.  Grant was waiting for Donley at Starbucks and Donley didn't show up.  Grant called him and said, "Where are you, buddy?"  Donley insisted that they had agreed to get together on the next night.  But, Osbourne said, this was something that Grant held over him.  She said, "I felt like they were slowly but surely biting at each other. . ."

Williams reported, "Osborne stated that she knew Donley did not pay Grant in advance and sometimes would owe him money after the sessions were completed.  Osbourne stated the Donley told her he didn't feel they should have to pay full price for the session because they are tutoring in a group."

Osbourne disagreed with Donley on this point.  She explained to Williams:
I said, "Well, you know, it's only $20.00.  That's cheap.  So why not just keep it at that?  I'll pay him 20, you pay him 20.  He's actually teaching two people.  He's pulling from both sides of, you know, of the difficulty levels and, you know, for that he should get paid $20."  But Jon didn't want that.  Jon always wanted to, like, say "Okay, you know what,. . . you should charge $15 instead."  And actually one of the meet-ups was discounted because of Jon saying, "Okay, well so and so and so."
According to Osbourne, the disagreements between the men only simmered below the surface.  Their conflict never went beyond the needling that she described.  Williams wrote:
Osbourne stated that she never observed any verbal arguments between the two of them.  Osbourne also indicated that she never heard Grant ever use any derogatory racial slurs towards Donley or anyone else.
Osbourne didn't show up for the tutoring session on the night that Grant was murdered.  Her car had broken down earlier in the day.  Donley was available to drive her, but Osbourne thought that her husband wouldn't approve of her riding in a car with another man.

Donley arrived at Dunkin' Donuts first.  The time was 8:54pm.  He bought a coffee and a donut.  Grant arrived later.  An employee, Taha Sorour, said that Grant appeared at 11pm.  Sorour said, "[E]verything was normal. . . Both were sitting inside as a friend." 

The mood of the two men was different by 1:15am.  Tarek, a delivery man, told police that, while delivering a rack of donuts to the store, he observed Grant and Donley arguing inside the store.  He did not hear what they were arguing about.  He left shortly after. 

Elliot Jacobs, an employee, told police that he had also heard Donley and Grant raise their voices at one point.  He said, "It lasted no more than like three seconds.  It was just like firm words that they said to each other.  I didn't hear what they said. . ."

Ahmad Alsuvae, another employee, also reported seeing the two men arguing inside the store.

Donley got up from the table and went outside by himself.  Then, he went back inside the store.  Then, he came outside again.  Alsuvae and Sorour, who were sitting at a patio table, took notice of Donley's erratic behavior.  Grant followed Donley outside the second time.  He sat down at a table.  Donley was pacing back and forth in the parking lot.  He approached the table at one point.  He was angry.  He kept challenging Grant to come towards him.  Alsuvae and Sorour differ in what they remember Donley saying.  Sorour told Officer Chad Burgs that Donley said, "Come on. . . you called me a nigger. . . come on."  He later told Williams that Donley said, "Did you call me nigger?"  Alsuvae told Williams that, at first, he only heard Donley demand Grant to "Come here."      

Eventually, Grant walked up to Donley and the two of them talked for awhile.  It sounded to Alsuvae like a normal conversation.  Sorour agreed with Alsuvae about this.  Williams wrote:
[Sorour] stated that other words were exchanged between the white and black male for "three to four minutes."  He stated that the words stopped and the black male went to his car.
But then, according to Alsuvae, Grant suddenly raised his voice.  Sorour heard him say, "You know what, you are a nigger."  Alsuvae told Williams that Grant said, "Nigger, nigger."  It could be that Alsuvae meant this as an actual quote or it could be that he simply meant that he heard Grant say word "nigger" twice.  Donley replied, "Don't say that again!" "But," said Alsuvae, "he say it again.  Then the fighting started." 

Donley kicked Grant in the ribs.  He then punched Grant in the face several times.  Sorour said he punched him "three or four times."  He was moving so fast that Grant had no opportunity to fight back.  Williams wrote:
[Sorour] observed the black male kick the white male in the neck and the white male fell to the ground face first.  He stated that the black male began punching the white man in the area of his kidneys.
Sorour ran inside the store to call 911.  The 911 call was logged at 1:22am.
911 Dispatcher: "What’s the emergency?"

Caller: "This black guy fight with white guy.  The white guy is actually down now."

911 Dispatcher: "Is he moving?"

Caller: "No, ma’am."
Alsuvae saw the attack continue while Sorour was in the store.  Grant was lying motionless on the ground as Donley kicked him several more times.  Burgs wrote:
Witness advised that as the victim lay face down motionless, the black male approached the victim from the front and grabbed him in a chokehold and choked the victim for nearly 15 seconds. . ."
Alsuvae maintained his story when he spoke to Williams hours later.  Williams wrote:
[Alsuvae] stated the black male put his hands around the white male's neck and held him for "fifteen seconds."  He stated at first the white male tried to move but after the black male began choking him, the white male stopped moving.
Alsuvae went to check on Grant and found he wasn’t breathing and his face was turning blue.

Williams made a point to clarify, "Did you ever see the white guy punch the black guy or kick the black guy?"  Alsuvae's answer was simple: "No."  Alsuvae added that, as Grant tried to tear Donley off of him, he grabbed Donley's shirt and tore it.  He stressed in describing Grant's response to Donley's punches: "He tries - he tries to run. . ."

Sorour returned outside in time to see Donley fleeing in a beige four-door Nissan.  He quickly wrote down the tag number.  Williams wrote:
[Sorour]. . . observed the white male on the ground and he was not moving or breathing.  He advised he saw the white man's color and knew something was wrong.
Officer Burgs arrived on the scene at 1:27am.  Grant's body was already cold.  The officer could see that Grant had been beaten.  He noticed bruises and abrasions on Grant's knees, left elbow, and head.

Dr. Sanchez pronounced Grant dead at 2:07am.

Sorour sat down with Williams in an interview room at the police department to provide a sworn statement on July 18 at 6:05am.  He identified Donley as the aggressor.  He said, "I feel like the black guy want to fight with the white guy."

Williams wrote, "Both witnesses provided sworn taped statements and were able to identify Donley, in a photograph of photographic lineup, as the person involved in this altercation."

The license plate number led the police directly to Donley's home.  No one was home on their arrival.  Officers conducted surveillance of the home until Donley turned up in his Nissan.  The police approached the car.  Before the police spoke to him, he said, "Okay, let me just let my mom know that I'm going with you."

Detective Matthew Drake noted, "From outside the vehicle I observed a white shirt on the center console.  I noticed a discolored area on the shirt that appeared to be blood.  I did not enter the vehicle.  I secured the vehicle with crime scene tape and requested for a tow truck to tow the vehicle to Davie Police for further investigation."

The collar on the shirt was torn, which is something that happened as Grant tried to get Donley off him.

At the police station, Donley was led to an interview room.  Williams noted on application for a search warrant, "I began reading Donley his Miranda Rights from a prepared text.  During the reading of his rights, Donley asked if Grant was okay."  He didn't know that Grant was dead, though he may have suspected it.

Williams wrote:
I asked Donley if he was willing to answer my questions without an attorney present.  Donley stated that he was worried about going to jail.  I explained to Donley that I was affording him the opportunity to speak with me at this point and tell his side of the story.
He said that Grant provoked him by calling him "nigger," which Williams said took him "over the edge."

Williams continued:
Donley then asked to speak to his mother, Latricia Donley, who he stated is a lawyer.  I contacted his mother, via telephone, and informed her that her son was involved in an incident being investigated by the Davie Police Department.  I placed her on hold, escorted Donley out of the room, and allowed him to speak to his mother on the telephone.  After speaking with her he advised that he did not want to make any statements.
This put an end to their conversation.  Williams wrote:
I advised Donley that he was under arrest and was being charged with murder.  Donley began crawling on the floor stating, "No sir.  I cannot do this, I cannot have that on my conscience."  I told Donley to have a seat in the chair and I would contact his mother for him and let her know. Donley then stated, "My life is over.  Everything that I worked for is over."  I exited the interview room and Donley stated to himself, out loud, "You killed somebody, John [sic].  How could you? How could you have done that?  Oh, my God, I took a life.  John, it doesn't matter who.  You took a life, John.  You took a life.  You took a life. Goes against your morals. I'm not that guy. I'm not that guy.  What did he die from?  What did he die from?  A punch to the face?  What the fuck.  Oh, my goodness.  This can't be.  This can't be.  This must be a dream.  This guy's dead for nothing, for nothing, John.  This guy's dead for nothing.  What the hell.  Oh, my God.  Oh, my God.  Oh, my God.  This can't be happening. Lord, please.  Oh, man.  Oh, my God.  Oh, man. Lord, no. Lord, no.  Oh, my God, what have I done?  I'm not that person.  I'm not that person.  Oh, my God.  Oh, my God.  Oh, Lord.  No.  What have I done, Lord?  How we going to get through this?  How's my mama going to get through this?  My mom needs me.  No, I can't – no, man, no.  My mom, my mom, my mom.  Tired.  Oh, fuck."
The call log for Donley's phone showed that, shortly after Donley drove away from the Dunkin' Donuts, he called a number in Atlanta, Georgia.  The number, as was later discovered, belonged to Tiona Byrd.  The call went through but only lasted for four seconds, which suggests Donley reached voice mail and hung up.  He then tried to call Judi Medina in Miramar, Florida.  This call lasted only five seconds.  He immediately tried both numbers a second time and the calls lasted even less time.  Williams tried to phone Byrd and Medina.  He left Byrd several messages, but she never returned his calls.  He wrote of Medina:
Medina stated that she knows Donley but does not know why he called her and does not remember speaking to him.  Medina denied any knowledge about this incident.  Medina further stated that she does not know the victim in this case.  Medina then disconnected the phone conversation with me.  I attempted to call her back and the call rang to voicemail.
Osbourne commented in her statement that Donley had phoned her the morning after the incident.  She said:
Jon. . . said he got into a bad fight with David, "He kept calling me a nigger, man.  He kept calling me a nigger."  And I said – I said, "Why didn't you – I mean why did you guys fight?  What is the whole hands on about?"  And he said, 'Man, he kept trying me.  Man, he kept trying me.  He walked outside and he was trying me.'  And I was like – I said, "No," I was like, "Why did you do that?  You should've just walked away."  And then he was like, 'Man, I don't know, man, I had to; he was trying me.'"
Osbourne said that Donley knows he has an aggressive personality and he knows to walk away from situations before he loses his temper.  She thought that, in this instance, he reached "a breaking point."  Donley told her that David had been drunk.  She believed that it was because David was drunk that he followed Jon and provoked him.

As the interview went on, Osbourne became protective of Jon, a friend that she knew might have to go to prison.  She said, "I'm not going to even say that David didn't provoke [the attack] because I feel like in a way that he did, because especially if, you know, whenever he got drunk, he was a completely different person, that I even had to walk away from him before because it's just the way he was. . ."

Osbourne was emphatic about Grant drinking during tutoring sessions.  She said:
I'm going to say I only seen him drinking one time but I knew, because he kept taking his bag and he had alcohol in his bag and he would take his bag and go to the bathroom and come back, and when he came back, you know, his breath smelled like it and I was like, 'What are you doing?'  And he was like, 'Come on, you know, I got to - I got to' - you know, he was explaining his sister had passed and, you know, it's towards nighttime, he doesn't usually tutor at nighttime so he would want to drink to compensate for that.
Grant's sister, Suzanne O'Neill, had died less than six weeks earlier on June 7, 2012.

Williams wrote, "Crime Scene Tech Cortotillo said that he detected the strong odor of alcohol emanating from Grant's body."  Williams recovered four beer cans from a garbage can in a bathroom inside the Dunkin' Donuts.

The Medical Examination

Khalil Wardak, the Associate Medical Examiner, concluded an autopsy on July 18.  He found evidence of strangulation.  He wrote, "The anterior neck dissection revealed hemorrhages of the sternocleidomastoid muscle."

Wardak discovered other issues in his analysis.  Most notably, Grant had an enlarged heart caused by plaque build-up in the artery wall.   The medical examiner wrote, "The coronary arteries arose normally and follow the usual distribution with evidence of atherosclerosis of the left anterior descending artery."  He noted that the artery was 90 percent blocked.

Wardak found that Grant's overall physical condition was poor.  He later clarified in a deposition, "[Grant] had liver problems.  He had spleen problems.  He had kidney problems."

Grant's blood alcohol content was recorded as .19 g%.  An excessive amount of alcohol can significantly affect a person's behavior, bringing about boisterousness and overexpression.  Was this the case with Grant?  Wardak was directly asked by Donley's attorney, Fred Haddad, if Grant's blood alcohol level indicates the man was inebriated.  The doctor replied, "I cannot tell you, because it depends on everyone's body and how they react to the amount of alcohol.  Some have tolerance; some cannot have tolerance."

Wardak reached the following conclusion:
This 45-year-old, white male, David Grant, died as a result of strangulation.  By report another individual, the suspect had his hands around the decedent's neck just before he lost consciousness and was subsequently pronounced dead.  Hypertensive arteriosclerotic cardiovascular disease was a contributory cause.  The matter of death is determined to be homicide.

Charges are Dropped

The case was assigned to Assistant State Attorney Alberto Ribas Jr., who made an immediate decision to pursue manslaughter charges against Donley.  It may have been his only quick and reasonable decision on the matter.  Ribas procrastinated on the case for five years, failed to maintain contact with the key witness, failed to attend a deposition of the key witness, failed to preserve evidence, and failed to read pivotal, time-sensitive discovery documents submitted to him by the defense attorney.  Ribas' gross neglect in his handling of the case jeopardized his ability to prosecute the case in court.  Yet, he assured Grant's family that he would bring the case to trial.  But, then, Ribas was appointed by Governor Rick Scott to a circuit court judge vacancy in February, 2016.

Ribas' biggest blunder is obvious.  Haddad arranged a deposition of Alsuvae on September 11, 2014.  Haddad sent Ribas notice of the deposition, but Ribas failed to appear.  Alsuvae said at the start of the deposition that he was going to leave the United States after he completed his studies in the next year.  Ribas would have known about Alsuvae's imminent departure if he had at least read the deposition.  Ribas was contacted by the author to address his handling of this case, but he turned down the opportunity to respond. 

The deposition is interesting reading material.  Haddad and a colleague, Tarlika Nunez-Navarro, interviewed Alsuvae for eighteen minutes, during which time the witness was made to describe at length the fatal confrontation.

Alsuvae said, "[T]he suspect start talking, like, angry language, not happy.  I didn't know what he said, because I couldn't understand, but it was not okay."

Haddad asked Alsuvae what Grant was doing at this time.  Alsuvae said:
[He] didn't answer to him.  He just sitting like this and looking at him.  Then he stand up and went to him and they start talking together. . . They start talking, screaming, loud - they were not okay.  There was something wrong with them.  And they talking, screaming, I couldn't understand what the problem with them.
Haddad asked if Grant called Donley "a nigger."  Alsuvae said:
No.  They start – the black, now left to his car. . . [H]e told to the victim, if you say nigger again, I will come back or something.  And he was going to open his door and the victim said, "Do you know what, you are a nigger."  And then he came back and started fighting.  The victim was not easy to move because he was fat. . .  and the suspect was pretty fast giving him any shots in his – in this way and in this way (Indicating).
He said that Grant stopped Donley by grabbing hold of him ("[T]he victim catch the black guy").  The two men toppled to the ground and Donley ended up with his leg beneath Grant.  Haddad asked Alsuvaee if Donley was trapped and unable to stand up, but Alsuvaee made it clear that this was not the case.  He said that Donley was able to stand "[p]retty fast."  He specified later in the deposition that Donley stood back up in "two or three seconds."  This detail of the incident was so insignificant to Alsuvae that he hadn't bothered to mention it in his previous accounts.  Donely was back on his feet in no time and, according to Alsuvae, he immediately got back to kicking and punching Grant.

It is improper for an attorney to put words into the mouth of a witness or suggest an answer.  This is what is commonly known in the legal field as "leading the witness."  But this is exactly what Haddad and Nunez-Navarro did while questioning Alsuvae.  Haddad said, "So what you said is. . . the victim was sitting on top of the suspect holding him down. . ."  But Alsuvaee had not said that and he clarified that he had not said that.  But Haddad and Nunez-Navarro stuck with this strategy.  The attorneys repeatedly told Haddad, "So what you mean to say is [Fill in the blank]."  Haddad would tell them "no."  They wouldn't accept this.  They would persist on circling back to the witness' remarks.  It was just a matter of time before they wore down Alsuvae and got him to concede that his words were wrong and their words were right.  Alsuvae did not speak English well and it made it easy for them to manipulate what he was saying.  Of course, this never could have happened if Ribas had done his job and come to the deposition.

The times that Alsuvae says "Yeah" in the following exchange are the times that the lawyers got Alsuvae to acquiesce to their narrative.
Nunez-Navarro: Did the fat white guy, like, tackle the kid?  Like, put his arms around him and tackle him to the ground?  How did that happen?  How did he get them to the ground?

Alsuvaee: When he catch him from here, hugged him, hug him like this in the (indicating) and the suspect – the suspect trying to move, they go on the floor.

Haddad: So the big guy was fighting and the little guy was fighting? 

Alsuvaee: Yeah.

Haddad: And then –

Alsuvaee: The victim was trying to catch the guy, because he was fat, not easy to move.

Haddad: Okay.  But then he did catch him, put him on the ground and sat down on him?

Alsuvaee: Yeah.

Haddad: Was he hitting him when he was sitting on him?  Was the fat guy hitting the guy but he was sitting on him?

Alsuvaee: No, he couldn't, but just hold -

Haddad: Hold him?

Alsuvaee: Yeah.

Haddad: Okay.  Where was he holding him?

Alsuvaee: On the side.  On his leg –

Haddad: Was he still calling him a nigger while he was holding him down?

Alsuvaee: No.  No.  No.
Manipulating language is a common strategy of criminal defense attorneys.  Police arrest five men for beating and robbing a man.  It was mob violence on an innocent victim.  But the defense attorney insists again and again on referring to the beating as a "fight" until he has others referring to the incident as a fight.  But a beating and a fight are two entirely different things.

Haddad challenged Wardak's determination of strangulation.  He pointed out that the autopsy did not reveal trauma to the larynx, which he thought should be present in cases of strangulation.  The doctor did not agree that trauma to the larynx was necessary to make a determination of strangulation.

Haddah hired John Marraccini, a former Palm Beach County medical examiner, as a medical expert.  Marraccini sat for a deposition on July 24, 2015.  In the ensuing conversation, he disputed Wardak's conclusion that Grant had died from strangulation.  He believed that the exertion and stress experienced by Grant caused him to suffer a heart attack.  He said, "Now there is physical contact going both ways.  You know, the soon to be dead man Mr. Grant is putting a bear hug on the defendant and then that's broken up and then the defendant throws punches and kicks. . . [T]he stress in combat set in motion the lethal train of events."

The deposition came across as scripted.  Haddad's paid expert worked dutifully to promote Haddad's narrative that Grant died in a fight ("physical contact going both ways") as opposed to Grant having been beaten to death.  Marraccini went beyond the scope of his expertise to put across this point.  He used the word "combat" four times in the course of his brief remarks.  This was not combat.  Combat suggests two opposing forces that fight together willingly and on equal terms.  This interaction between Donley and Grant was, clearly, a beating.  Donley viciously attacked Grant, who struggled feebly and futilely to get away.

It was the one and only goal of Haddad and Nunez-Navarro to reshape the narrative in a way that was favorable to their client.  Donley was described by the two attorneys as a "kid" and a "little guy," though neither of those descriptors apply.  Grant was described as a "big guy" and "a bear" (as in "bear hug").  Alsuvae never said that Grant threw Donley to the ground or tackled him to the ground.  He never said that Grant sat on Donely.  But this is what they wanted him to say. 

Let us look closely at the phrase "bear hug," which came to be used by Marraccini and (incredibly) the prosecutor's office.  It wasn't a phrase that the witness used.  At the deposition, Alsuvae initially said, "The victim was trying to catch the guy."  The word "catch" means "to intercept or hold."  It doesn't in any way suggest that Grant initiated a bear hug on Donley.  A bear hug is a highly aggressive act used in offense maneuvers in the wrestling ring.  Grant was no wrestling superstar.  He was not Ox Baker or Abdullah the Butcher.  He was a man desperately trying to fend off the punches and kicks of a wildly violent man.  It crosses ethical lines for an attorney to listen to the witness say one thing and insist that he really meant to say something else.

After Ribas left the prosecutor's office, the case was reassigned to Gina Hawkins, who decided to drop the charges against Donley.  Tony Doris of The Palm Beach Post wrote:
Assistant State Attorney Gina Hawkins and the office's supervisor in charge of homicide cases, Shari Tate, met with [Carol] Field [Grant's sister] and her husband and Field’s sister, "face-to-face," Field said. "They point-blank admitted the reason why they’re dropping the case is because they lost the key witness and did not preserve the testimony."
"We’re absolutely devastated," Carol Field said.  "David was such an incredible, wonderful man and so loved by his family, and for five years we have been patiently waiting for the State Attorney’s Office to get justice for David.  And after five years of waiting and hoping and thinking about David every day and missing him every day, to get that kind of news, it’s devastating and confusing."

"We were told to let the State Attorney handle it," Paul Field said. "We did that, and the result was a killer walked away.  The state attorney's office didn't fulfill their promise to our family or to David.  The killer walked away free to live his life, after he denied David his.  That's not justice."

Assistant State Attorney Gina Hawkins and victim's sister, Carol Field
Hawkins was asked a number of times for the reason that she dropped the case.  Her answers were inconsistent.  Was the case really dropped because Alsuvae had moved back home to Saudi Arabia?  In October, 2016, Hawkins had lost her key witness while prosecuting a murder case against Sherard Adams, who was on trial for hiring a hitman to shoot his ex-girlfriend.  At the time, the attorney said that she would need to rely on a back-up strategy to present a case.  Her back-up strategy was effective in getting a conviction three months later.  Oddly, she had no back-up strategy to getting Donley convicted.

The Broward County State Attorney released a statement to the press.  The statement read in part:
The State has no competent evidence to rebut the argument that when Donley is called a "n-word," he was suddenly provoked to turn and strike Mr. Grant.  The witnesses all stated that Donley was walking away, and suddenly the combat ensues, with Grant attempting to place Donley in a bear-hug.  By all accounts, no weapon was used, and the fact that Donley held Grant for approximately 15 seconds, does not rise to the level of a cruel and unusual manner.

While the cause and manner of death was deemed homicide by strangulation, the doctor's report also opined that cardiovascular disease was a "contributory cause of death."

In addition to the State's lack of competent evidence to proceed and prove this case beyond a reasonable doubt, there is also a question of whether the State could overcome a claim of Excusable Homicide Pursuant to Florida Statue 782.03.
Haddad suggested the move was inevitable.  He said: "We've had several medical experts look at it, various depositions.  I had one of the top forensic pathologists in the country as well as another doctor review it.  The cause of death determined by the medical examiner was probably in error.   It was a heart attack, more than likely."  Also, he claimed that the witnesses offered conflicting testimony.  He concluded, "The state attorney's office did what they had to do.  Under the facts of the case, there was no case that they could prosecute in good faith.  There were issues of whether my client acted in self-defense and whether the decedent perpetrated what caused his own death. . . All of the facts added up to my client not committing a crime."

Haddad's claim that the witnesses offered conflicting testimony is not bore out by the case records.  Neither is the fact that Haddad took depositions of several medical experts.  The records show that the attorney only brought in Marraccini as a medical expert.  Marraccini is not one of the top pathologists in the country.

This was certainly not a zealous prosecution.  Hawkins upheld the case for the defense in her comments to the press.  She wholeheartedly accepted Haddad's arguments, the strength of which is debatable.  She accepted the opinion of the defendant's medical expert over the opinion of her own medical expert.  She showed no interest in prosecuting this case.  If the word "nigger" could instigate a black man to regard Grant in a cold-hearted manner, as Hawkins suggests, it follows that the word can instigate a black woman to regard Grant in a cold-hearted manner.  Hawkins is condemned by her own argument.

Recent news stories suggest that black defendants are treated more favorably in the justice system whenever the prosecutor is a black woman.  In the last couple of years, several black female prosecutors rose to the level of State's Attorney after promising to arrest and prosecute less black people.  The best known prosecutors in this category are Kimberly Gardner (St. Louis), Kelley B. Hodge (Philadelphia), Kimberly Foxx (Chicago) and Aramis Ayala (Orlando).  Across the country, black female lawyers have closed ranks to fulfill Black Lives Matter objectives.  Their comments do not suggest that these prosecutors care about guilt or innocence.  Their only concern is imprisoning less black people. 

Donley's mother, Latricia Donley, created a network of black female lawyers as a founder and past president of The Gwen S. Cherry Black Women Lawyers Association.  In 2015, the association sponsored the symposium "Shutting Down the School to Prison Pipeline," which advocated for new programs and policies to lower the incarceration rates of black juveniles.  The proposed outreach programs, which outlined lenient law enforcement policies, aimed to lower incarceration without lowering crime.  Anti-social individuals still got to commit crime, but they were less likely to face imprisonment for their actions.     

Hawkins may not be a zealous prosecutor in general.  In March, she dropped charges against Lorenz Sanchez, who murdered the owner of a convenience store during an armed robbery.  She again sat down with the victim's family to explain her decision and watched as family members broke down crying.

Of course, Ribas did not provide a zealous prosecution either.  It is hard to believe that a lawyer could be as hopelessly incompetent as Ribas was with this case.  When all of the facts are considered, it seems far more likely that Ribas wanted to sabotage the controversial case so that it never made it to trial.

State Attorney Michael Satz
The State Attorney Office in Broward County has reason to be afraid of controversy.  Since 2013, Black Lives Matter has been highly active in Broward County due to the police shooting of Jermaine McBean, a young black man who caused a panic by walking in public with a pellet gun that looked like a real rifle.  Rafael Olmeda of Sun Sentinel wrote, "[Deputy Peter Peraza] open[ed] fire when McBean failed to follow orders to put the weapon down.  Peraza testified that he only pulled the trigger when McBean appeared to begin raising the weapon as if to fire it."  Black Lives Matter focused on State Attorney Michael Satz, who they accused of routinely failing to indict police officers who shoot black criminal suspects.  The group's protests, which were bolstered by local newspapers, undermined Satz in his reelection campaign in 2016.  This was the first time that Satz’s job was in jeopardy since he had first been elected in 1976.  During the campaign, Satz reached out to minority voters by acknowledging that there was a disparity in the way minorities were treated by the criminal justice system.  He promised to work hard to improve the situation.  Satz won reelection by a 3.28 percent margin, which was the narrowest margin of his career.

Black Lives Matter, upset by Satz’s reelection, staged a demonstration outside of the Broward County courthouse.  Antonia Farzan of the Broward Palm Beach New Times reported:
Tifanny Burks and Jasmen Rogers, community organizers with the Black Lives Matter Alliance Broward, say the protest is designed to express outrage at the fact that Satz was re-elected and let him know that since Broward County is stuck with him, he’s stuck with them as well. "Satz will now have to answer directly to us, the community, on the oppressive practices that have been going on for decades," Burks explains. "All eyes are on him for the next four years."

Rogers adds: "We were hoping this election would be the end of the current reign of Mike Satz.  A 40-year grip on Broward's criminal justice system is far too long, especially when we have witnessed injustice being handed down from his office on a regular basis."
So, the eyes of black activists were on Satz.  It is impossible to believe that this fact did not influence the decision of Satz's office to drop the racially charged Donley case.

The Lost Witness

The rules of evidence place discretion on the trial judge to accept evidentiary offers and in the jury to evaluate them.  Hawkins went before the press and played out an imaginary trial in which she acted out the various roles.  She described the argument that she would present and the argument that the defense would present.  She described presumed rulings of the judge and the presumed responses of the jury.  It is nice for her to play out the trial in her head, but Grant deserved an actual trial rather than Hawkins' imaginary trial.

Hawkins had three obstacles to overcome in prosecuting this case.  First, she had to find a way to prove Donley beat Grant to death without the testimony of her key witness.  Second, she had to rebut Haddad's argument that Grant's murder met the standards for an excusable homicide.  Third, she had to prove that Grant died from the beating.  Let's look at these issues one by one.

Alsuvae made a number of statements to officials in which he explained in explicit terms that he saw Donley kill Grant.  He provided his eyewitness account to Officer Burgs, to Detective Williams, and to defense attorney Fred Haddad.  Yet, Alsuvae's out of court testimony could be challenged as hearsay under the Sixth Amendment.  This issue was plainly discussed in Ronald C. Howard, Jr. v. State of Indiana, 853 N.E.2d 461 Supreme Court of Indiana (September 6, 2006):
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .". . . The essential purpose of the Sixth Amendment right of confrontation is to ensure that the defendant has the opportunity to cross-examine the witnesses against him.  State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993).  As this Court has recognized, the right to adequate and effective cross-examination is fundamental and essential to a fair trial. Id.  It includes the right to ask pointed and relevant questions in an attempt to undermine the opposition's case, as well as the opportunity to test a witness' memory, perception, and truthfulness.  Id.
However, judges were allowed to make exceptions.  The matter was controlled for years by the Supreme Court's holding in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L.Ed.2d 597 (1980).  The Howard opinion aptly defines the Roberts holding as follows:
Under Roberts, a hearsay statement of an absent witness could be admitted in a criminal trial without violating the right of confrontation if (1) it was shown that the declarant was unavailable and (2) the out-of-court statement bore adequate indicia of reliability.  This test focused upon the reliability of the statement.  As the Roberts Court explained, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore "particularized guarantees of trustworthiness." Id. at 65-66, 100 S. Ct. 2531.
The Roberts case was discussed at greater length in Richard Sylvester James v. State of Florida, 400 So.2d 571, No. 79-11/T4-352, District Court of Appeal of Florida, Fifth District (1980):
In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the U.S. Supreme Court was again faced with a confrontation question as it pertained to the admissibility of out of court testimony.  Defendant had been charged with possession of stolen credit cards and forgery of a check belonging to Bernard Isaacs.   At a preliminary hearing held in Municipal Court, after the prosecution called several witnesses, defendant's attorney called Isaacs' daughter, Anita, and questioned her at some length, attempting to elicit from her an admission that she had given the checks and credit cards to the defendant.  Anita denied this.  Defendant's attorney did not ask to have Anita declared hostile and did not request permission to place her on cross-examination.  The prosecutor did not question Anita.

At the trial, Anita was unavailable to testify, and after defendant testified that Anita had given him the checks and the credit cards, the prosecution offered in evidence the transcript of Anita's preliminary hearing testimony.  Asserting a violation of the confrontation clause, the defense objected to the use of the transcript.  The trial court admitted the transcript and defendant was convicted.  The Ohio Supreme Court reversed, reasoning that there was little incentive to cross-examine a witness at a preliminary hearing, that the mere opportunity to cross-examine a witness at a preliminary hearing did not afford constitutional confrontation for purposes of trial, and since Anita had not been cross-examined, the use of her testimony violated the accused's right of confrontation.

The Supreme Court granted certiorari and held the testimony admissible, recalling that: The Court, however, has recognized that competing interests, if "closely examined," Chambers v. Mississippi, 410 U.S., (284) at 295, 93 S.Ct., (1038) at 1045, (35 L.Ed.2d 297) may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U.S., at 243, 15 S.Ct., at 340 ("general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case").  Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings.  See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); California v. Green, 399 U.S., at 171-172, 90 S. Ct., at 1941-1942 (concurring opinion).  Roberts, 100 S.Ct. at 2538.

The court then held that so long as the opportunity to cross-examine is present and counsel is not significantly limited in any way in the scope or nature of his cross-examination, there is substantial compliance with the purposes behind the confrontation requirement.
The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  Associate Justice Antonin Scalia, writing for the majority, stated:
[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. . . Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination... . [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
The District Court of Appeal of Florida took an unusually strict stand against the admission of discovery depositions as substantive evidence in a criminal trial in three cases: State v. James, 402 So.2d 1169, 1171 (1981), Larry Clark v. State, 572 So.2d 929, Nos. 89-1503, 89-1748, District Court of Appeal of Florida, Fifth District (1990) and Rodriguez v. State, 609 So.2d 493 (1992).  In the James case, which began this trend, the defendant was on trial for burglary, attempted sexual battery, and robbery.  His victim died before trial, but the trial court allowed the prosecution to introduce the victim's discovery deposition at trial.  The Supreme Court ruled, "[T]he deposition was used for an improper purpose."

If Ribas had been present for the deposition, he and Haddad could have abandoned the discovery deposition in favor of a more suitable preservation deposition (also known as a testimonial deposition or an evidence deposition).  A discovery deposition involves a single attorney, either defense or prosecution, questioning a witness to discover evidence.  The fact that a discovery deposition involves no more than direct examination of the witness generally makes it inadmissible into evidence at trial under the heresay rule.  A preservation deposition is different.  It is a joint effort between opposing counsels to question a witness on record to preserve their testimony for trial.  This deposition holds weight in court because the presence of opposing counsels allows the witness to be subject to cross-examination and redirect examination.

Let us look at a few rulings that further define the distinction between a discovery deposition and a preservation deposition.  We can start with Jean Longstreet v. Cottrell, Inc., Lisa Shashek, Cassens & Sons, Inc., Cassens Corporation, General Motors Corporation, 871 N.E.2d 72, No. 5-06-0316, Appellate Court of Illinois, Fifth District (2007).
With various amendments over the past 50 years, the supreme court has kept the difference between discovery and evidence depositions intact. . .  The distinction is meaningful to practicing attorneys, because the discovery format provides a great deal of exploratory freedom.  The trade-off for that freedom is the supreme court's limitations on the use of discovery depositions at a trial. M. [871 N.E.2d 78] McNabola, It's Time to Move Beyond Separate Discovery and Evidence Depositions in Illinois, 92 Ill. B.J. 344, 345 (1966) (citing J. Kinsler, J. Grenig, & L. Nale, 10 Ill. Prac., Civil Discovery § 2.11 (2000)).
Then, we have State of Florida v. Moroni Lopez, 974 So.2d 340, No. SC05-88, Supreme Court of Florida (2008):
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.  Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. . . [T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.  Davis v. Alaska, 415 U.S. 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).  Thus, it stands to reason that the prior opportunity to cross-examine required by Crawford must serve the same functions.  In Ohio v. Roberts, 448 U.S. 56, 70, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court addressed the adequacy of the defendant's examination of a declarant at an adversary preliminary hearing.

How a lawyer prepares for and asks questions of a deposition witness whose testimony may be admissible at trial as substantive evidence under rule 3.190 is entirely different from how a lawyer prepares for and asks questions of a witness being deposed for discovery purposes under rule 3.220.  In effect, the knowledge that a deposition witness's testimony can be used substantively at trial may have a chilling effect on a lawyer's questioning of such a witness.  State v. Green, 667 So.2d 756, 759 (Fla. 1995).

A defendant cannot be "expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition." State v. Basiliere, 353 So.2d 820, 824-25 (Fla.1977).  This is especially true if the defendant is "unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements." Id. at 824.
A defense attorney has reason to cross-examine a witness to assure that witness has no doubts and couldn't have in any way misperceived the event.  But Alsuvae's account of Donley’s attack is straightforward.  Arguments against admitting the testimony are less substantial than the testimony itself.  A lesser point has been made that the transcript deprives the jury of fully assessing the witness' demeanor.  This hardly justifies suppressing the vital testimony of an unbiased witness.

In the past, the courts have ruled that a deposition can qualify as a "prior opportunity for cross-examination."  A reasonable conclusion was drawn in the aforementioned Howard v. State of Indiana (2006):
We acknowledge that trial counsel's motivation for taking a deposition solely for the purpose of discovery may differ from that of a deposition to perpetuate testimony.  As one commentator has noted, "[m]ost litigators think of two kinds of depositions: discovery depositions and testimonial depositions."  Henry H. Perritt, Jr., Trade Secrets: A Practitioners Guide, P.L.I. § 10:10.1 (2005).  During testimonial depositions, more attention is paid "to the form of questions . . . [and] to cross-examination . . . . It is not uncommon for key witnesses to be deposed twice by the same party, once for discovery purposes and again for testimonial purposes." Id.  But we make two observations.  First, although Howard contends that the purpose of the deposition in this case was "for discovery" only, counsel for Howard nonetheless conducted a vigorous and lengthy examination.  The deposition lasted approximately two hours and resulted in ninety-two typewritten pages, nearly all of which constitute counsel's examination of C.C. Appellant's App. Vol. II.  We thus disagree with Howard's claim that he was denied his right of confrontation. See Abner v. State, 479 N.E.2d 1254, 1262 (Ind. 1985) (rejecting claim that defendant was denied right of confrontation by admission of discovery deposition into evidence where forty pages of a 124-page deposition were devoted to defense counsel's examination of witness).

Second, and perhaps more importantly, Crawford speaks only in terms of the "opportunity" for adequate cross-examination.  The right of confrontation under the Sixth Amendment is honored where "the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)).  Whether, how, and to what extent the opportunity for cross-examination is used is within the control of the defendant.
Only where a defendant has never had the opportunity to confront and cross-examine a witness does the admission of prior testimony at a subsequent proceeding violate the constitutional right of confrontation. See, e.g., Brady, 575 N.E.2d at 989 (videotaped testimony taken outside the presence of defendant and used at trial); Miller, 517 N.E.2d at 74 (videotaped statement of child where defendant received no notice); Driver v. State, 594 N.E.2d 488, 489-90 (Ind.Ct.App. 1992) (testimony from prior trial at which defendant did not have the opportunity for a face-to-face confrontation).

We conclude. . . that Howard had a full, fair, and adequate opportunity to confront and cross-examine C.C., within the meaning of the Sixth Amendment, when her pretrial deposition was taken.  Accordingly, subject to a trial court finding of unavailability consistent with the protected person statute, C.C.'s deposition may be introduced into evidence at any subsequent retrial.
The matter of discovery depositions was further addressed in Coy v. Iowa, 487 U. S. at 1023, 108 S. Ct. at 2803 (1988).  According to the ruling in this case, the admission of a discovery deposition "does not raise a substantial confrontation clause problem since it involves testimony in the presence of the defendant." 

The Florida Fifth District Court of Appeal noted in Richard Sylvester James v. State of Florida, 400 So.2d 571 (1980):
The death or unavailability of a witness is often not foreseeable, so the need to perpetuate testimony cannot always be anticipated.  It would seem that the rules of procedure should "give way to considerations of public policy and the necessities of the case" where, as here, defense counsel has an adequate opportunity to cross examine the witness and avails himself of that opportunity.
It is deplorable that, as previously noted, the Supreme Court of Florida did not share the wisdom of the lower court.  See State v. James, 402 So.2d 1169, 1171 (1981).

To say that Haddad had no opportunity to confront the witness is false.  Haddad was made aware during the deposition that this would be his one opportunity to confront the witness.  He challenged the witness' testimony as much as he could.  He had an adequate opportunity to confront the witness and he availed himself of this opportunity.  As much as he insisted that he had a strong case, he was likely counting on the witness leaving the country and being able to win the case on prosecutor negligence.

I briefly spoke to Haddad.  He was out of town at the time and was too busy to talk.  He promised to call me when he was back in his office, but I never heard from him again.  

The hearsay rule has been qualified to prevent the rule from "jeopardizing accurate fact-finding."  Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th Cir. 1982).  Judge Richard Posner, a United States Circuit Judge, wrote, "[H]earsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome."  United States v. Boyce, 742 F.3d 802 (7th Cir. 2014).  The statements must be supported by corroborating circumstances that clearly indicate its trustworthiness.  Since 1975, the Federal Rules of Evidence have permitted the statement of a witness describing an event while perceiving it or immediately thereafter to be admissible into evidence over a hearsay objection.  Throwing out Alsuvae's testimony jeopardized accurate fact-finding and let a murderer go free, which is not a correct outcome.

Two hearsay exemptions are present sense impression and excited or contemporaneous utterances.  A witness making a statement to police while in still in a state of shock of having witnessed a murder minutes earlier qualifies either as a present sense impression or excited utterances.  As the authors of these rules saw it, the fact that the statement is uttered spontaneously guarantees its trustworthiness. 

Hawkins might have been able to introduce Alsuvae's statements to police under these hearsay exceptions.  It was noted in the Howard vs. Indiana decision that this type of exception was once permitted in a 2005 Indiana case, Fowler v. State (829 N.E.2d 459, 465):
In Fowler, the defendant's wife was the State's key witness in a prosecution for domestic battery.  Called to the stand, the wife answered some preliminary questions asked by the State.  But after being shown pictures of herself taken at the scene and asked how that happened, she responded, "I don't want to testify. I can't do this . . . . I don't want to testify no more!" Id. at 462.  After a recess defense counsel attempted to cross-examine the wife.  She responded in much the same fashion as she had responded to the State.  On grounds of the excited utterance exception to the hearsay rule, and over the defendant's hearsay objection, the trial court admitted into evidence the wife's statements given to a police officer the day the alleged offense occurred.  The defendant was convicted, and his conviction was affirmed on appeal.
Then, we have the following statement from Florida vs. Lopez:
The trial court admitted Ruiz's statement under the excited utterance hearsay exception in section 90.803(2), Florida Statutes (2006). Section 90.803(2) authorizes the admission of "[a] statement or excited utterance relating to a startling event or, condition made while the declarant was under the stress of excitement [974 So.2d 345] caused by the event or condition," notwithstanding the general prohibition against the admission of hearsay.  The rationale for this exception is that a statement made during a period of excitement is likely to be more reliable than a statement made after a period of reflection. See Evans v. State, 838 So.2d 1090 (Fla.2002).  A person who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event.  A statement made during a period of excitement is therefore less likely to be contrived.
Witnesses forget quickly.  Studies have shown that, over time, memory loss diminishes the reliability of a witness.  It only follows that the statements that a witness makes to a police officer five minutes after an event are far more trustworthy than statements the same witness makes before a jury five years after the event.  Delays will impair the witness' ability to recall and relate the facts of an alleged offense.   

Douglas D. MacFarland, a professor emeritus at Hamline University School of Law, made the point that a witness suddenly confronted with an event is likely to "blurt out a truthful sense impression about that event."  Only part of the matter is that the witness lacks time to fabricate a lie.  MacFarland wrote, "[O]ther psychological effects contribute to faulty memory when time passes between an event and the report.  The witness may confabulate.  Confabulation is an effort by the subconscious mind to fill memory gaps to complete a consistent story. . ."  Stale statements become less reliable because reflective thought has had time to intervene.  MacFarland added, "The present sense impression is thought to pose no hearsay dangers of memory loss or insincerity and so [is] reliable enough to pass the hearsay bar. . ."

Alsuvae said that he saw Donley strangle Grant.  His statement is corroborated by the medical examiner, who reported evidence of strangulation.  It is, when all is said and done, a trustworthy statement.

Stripped of his ability to lead the witness, the defense attorney had nowhere to go in his cross-examination.  He had no astonishing cross-examination question up his sleeve to break the witness.  That's only something that happens in the movies.  How exactly would his cross-examination have gone?
Defense attorney: Are you sure it was my client you saw strangle the deceased?

Witness: Yes.

Defense attorney: No further questions, your honor.
Of course, we cannot overlook the other witnesses.  Sorour witnessed Donley knocking Grant unconscious with multiple kicks and punches.  This includes a high kick to Grant's neck.  Sorour was too busy calling the police to see Grant jumping on top of his unconscious victim and strangling him, but Sorour came back outside in time to see Donley fleeing in his car as Grant lie dead.  By itself, Donley's flight showed a consciousness of guilt.  Sorour's testimony would be significant to any reasonable juror.  

Let's consider a similar scenario.  You look across the street from your home and see your neighbor Mary letting a man into her front door.  You see the man leave.  The man appears to be in an agitated state.  You immediately go to check on Mary and find that Mary has been beaten to death.  It's much like the scenario in which you wake up one morning and see snow on the ground that wasn't there the night before.  You can safely assume that it snowed while you were asleep even though you didn't actually see it snowing.  Your neighbor Mary was alive when she let this man into her home and she was dead immediately after the man has left her home.   You can safely assume that the man killed her.  Your testimony at trial would have great weight.  Sorour saw more than Mary's neighbor.  He saw enough to confidently identify Donley as Grant's killer.

Of course, it should also be noted that Alsuvae has not disappeared into thin air.  Federal Evidence Rules allow attorneys to take depositions outside the United States if the witness' testimony could provide substantial proof of a material fact in a felony prosecution.

Heart attack

Hawkins wrote, "While the cause and manner of death was deemed homicide by strangulation, the doctor's report also opined that cardiovascular disease was a 'contributory cause of death.'"  Let's see if this "contributory cause of death" is really relevant.

Donley committed a direct affirmative act that caused Grant's death to occur.  The man would still be alive if Donley hadn't attacked him.  This causation establishes criminal liability.  It's just a matter of applying the "but for" test.  But for Donley beating and choking Grant, Grant would have left the Dunkin' Donuts alive.  His clogged artery would not have stopped him from getting on his bicycle and safely pedaling home.

Let us look at another scenario.
Ron chases Joe into traffic.  Joe is struck by a car and dies.  But for Ron chasing Joe into the traffic, Joe would still be alive.  The car contributed to the man's death, but the man who drove the car will go free while the man who chased the victim in front of the car will be arrested.
The unexpected frailty of the injured person is not a valid defense.  The criminal takes his victim as he finds him.  He remains responsible for the full extent of the injuries he causes even if the injuries turn out to be more serious than he had reason to expect.  A well-established legal doctrine on the subject is the eggshell skull rule.  This relates to a murder scenario involving a mugger who batters a man on the head without being aware that the man has a fragile skull.  The man's skull cracks, causing the man to suffer a fatal brain injury.  The mugger cannot argue that he is innocent because he couldn't have anticipated his blow would kill the man.   

A recent highly publicized murder in England involved a scrap dealer, David Brickwood, who died from blood loss caused by wounds to his hands and leg.  An underlying heart condition had been a contributory factor, but his death was still categorized as an "unlawful killing."

Let us see what the Supreme Court of North Carolina had to say about a similar case in 1974.  The case is State of North Carolina v. James Ellis Luther, 206 S.E.2d 238, 285 N.C. 570.  The court made the following conclusion:
The fact that the autopsy revealed hardening of the arteries of the heart and no traumatic injury sufficient to cause death does not exonerate defendant.  In his final autopsy report defendant's witness, Dr. Steffee, stated that "the increased cardiac demand occasioned by an altercation might have precipitated death."  The law declares 'that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor.' 40 Am. Jur. 2d  Homicide § 16 (1968). See also, 4 Strong, N.C. Index 2d, Homicide § 1 (1968).  Thus, if McKenzie's death came about as a result of the conjunction of his heart disease with either the violence or the excitement and shock of defendant's assault it was still brought about by defendant's unlawful act, for the consequences of which he would be answerable.  Annot., 47 A.L.R.2d 1072, 1077 (1956). The rule is well settled that the consequences of an assault which is the efficient cause of the death of another are not excused, nor is the criminal responsibility for causing death lessened, by the preexisting physical condition which made the person killed unable to withstand the shock of the assault and without which predisposed condition the blow would not have been fatal. 40 Am. Jur. 2d, Homicide § 20 (1968). See State v. Knight, Supra.

From the evidence in this case it was permissible and reasonable for the jury to draw the inference that McKenzie would not have died but for defendant's unlawful assault and battery upon him.
Criminal Code 1868, p. 352, McClellan's Digest [compilation of Florida Statutes] reads:
If one assaults another, but not in a way to naturally cause death or great bodily harm, he is guilty of a criminal act, and if death ensues, though contrary to his intention and wish, the homicide is manslaughter;" and accepting the causal connection between the "pushing" and a fatal heart attack, there was in this case an unlawful act which caused the death of a human being ergo: the act was manslaughter.
The court opined in Williamson v. State, 1926, 92 Fla. 1094, 111 So. 245, 247:
[I]n further finding that it was perpetrated by an act imminently dangerous to the person assaulted and that that act, to wit, the striking of an old man over the head with a walking stick and kicking him in the stomach, when perpetrated by a man in the bloom of youth and strength, evinced a depraved mind regardless of human life and even if there was not a premeditated design to effect the death of any particular individual.
Donley could actually anticipate that he would hurt Grant badly.  One witness described Donley as "a fit guy."  The witnesses consistently emphasized the physical differences between the men.  The tutor, they noted, was short, white-haired, morbidly obese.  They knew the truth.  Grant could not possibly stand up to the fit young man in a fight.  Also, Donley had to have been aware that Grant was not perfectly sober.  He knew that Grant was sneaking into the bathroom to drink beer, he had to have smelled the beer on Grant's breath, and it is reasonable to assume that he could detect signs of intoxication in his tutor's speech, his demeanor and his movements.  A variety of evidence made it clear that Grant was incapable of defending himself in a sufficient manner.  Donley's attack was angry and excited, it presented an unfair advantage to Grant, and it was calculated to harm Grant.

Sorour indicated that Donley kicked Grant in the neck and punched him in the kidneys.  Donley kicked and punched Grant in sensitive places where the force from a blow could do the most damage.  Alsuvaee referred to Donley's punches as "boxing shots."  Haddad, Donley's own lawyer, spoke of Donley administering "karate kicks."  The defendant's combat style, including the high kicks and the kidney punches, suggests fight training, which is a matter that could have been explored in court.

The following point was made in the opinion for State of Connecticut v. Nina C. Baccala, SC 19717, Supreme Court of Connecticut (2017):
[C]ommon sense would seem to suggest that social conventions, as well as special legal protections, could temper the likelihood of a violent response when the words are uttered by someone less capable of protecting themselves, such as a child, a frail elderly person, or a seriously disabled person.
Let's replace Grant in this scenario with an 83-year-old woman with a walker.  Haddad comes forward with testimony from a medical expert that the old woman died of a heart attack while Donley was beating her.  Would you now believe that Donley didn't murder the old woman?  He beat the old woman to death and her heart condition doesn't in any way alter that fact.

Heather Heyer, the woman who died during the Charlotteville riots, was morbidly obese.  It is being questioned if she was hit by James Fields' car as journalists have reported or if she suffered stress and exertion amid the panicked crowd and died from a heart attack.  Should Fields have no responsibility for her death if she did in fact die from a heart attack?

We have many crime victims who are not in the best of health.  Their lives still matter. 

The Word

The Excusable Homicide statute states, in part: "Homicide is excusable. . . by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation. . . without any dangerous weapon being used and not done in a cruel or unusual manner."

It is cruel and unusual to beat and strangle your calculus tutor because you're having trouble understanding the material for an upcoming test.  Donley punched Grant repeatedly, he kicked him in the neck, and he choked him unconscious.  He fled the scene with Grant's blood splattered on his shirt.  Yes, for sure, this is cruel and unusual.

Let us now address the provocation element of the case.  The standard definition for provocation is as follows: "A person acts in the heat of passion when he or she is provoked into doing a rash act under the influence of intense emotion that obscures his or her reasoning or judgment.  The provocation must be sufficient to have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."

The following was noted in the decision for Brown vs. Commonwealth of Virginia, 86 Va. 466, 473, 10 S.E. 745:
Malice aforethought implies a mind under the sway of reason, whereas "passion" whilst is does not imply a dethronement of reason, yet it is the furor brevis, which renders a man deaf to the voice of reason so that, although the act was intentional to death, it was not the result of malignity of heart, but imputable to human infirmity.
It was the opinion of the court in a 1949 British case, Regina v. Duffy: "Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

The Excusable Homicide statute is designed to excuse a killing done in the heat of passion so long as there is "sufficient provocation."  For a long time, the statue was mostly used to forgive a man who had went berserk when he caught his wife in bed with another man.  This matter was addressed in The State of Ohio v. Shane, 590 N.E.2d 272, 63 Ohio St.3d 630, Supreme Court of Ohio (1992):
See Regina v. Mawgridge (1707), Kelyng, J. 119, 137, 84 Eng.Rep. 1107, 1115: "[W]hen a man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, that is bare manslaughter: for jealousy is the rage of a man, and adultery is the highest invasion of property." (Citations omitted.) This archaic rule has no place in modern society.  Words informing another of infidelity should not be given special treatment by courts trying to determine what provocation is reasonably sufficient provocation.  The killing of a spouse (usually a wife) by a spouse (usually a husband) who has just been made aware of the victim spouse's adultery simply is not an acceptable response to the confession of infidelity.  See Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense (1986), 33 U.C.L.A. L.Rev. 1679, 1696-1697.
The truth is that, in modern times, there are few outright acquittals on a heat of passion defense despite evidence of provocation.

The question that is raised in this case is whether or not a word is sufficient provocation.  This is what the Supreme Court of Connecticut had to say about this in Connecticut v. Baccala:
To begin with, abusive language and epithets are not entirely harmless expression.  Indeed, there is certain speech that does more than just offend sensibilities or merely cause someone to bristle.  One commentator has observed the following about abusive language: "Often a speaker consciously sets out to wound and humiliate a listener.  He claims to make the other feel degraded and hated, and chooses words to achieve that effect.  In what they accomplish, insults of this sort are a form of psychic assault; they do not differ much from physical assaults, like slaps or pinches, that cause no real physical hurt.  Usually, the speaker believes the listener possesses the characteristics that are indicated by his humiliating and wounding remarks, but the speaker selects the most abusive form of expression to impose the maximum hurt.  His aim diminishes the expressive importance of the words." (Footnotes omitted.)  K. Greenawalt, "Insults and Epithets: Are They Protected Speech?" 42 Rutgers L. Rev. 287, 293 (1990); see also Taylor v. Metzger, 152 N.J. 490, 503, 706 A.2d 685 (1998) ("The experience of being called 'nigger,' 'spic,' 'Jap,' or 'kike' is like receiving a slap in the face.  The injury is instantaneous.").  It is precisely because fighting words inflict injury that they tend to incite an immediate breach of the peace.

The defendant claims that the law should not embrace an assumption that reasonable people will respond to abusive language with violence and claims that the people of Connecticut are peaceable, citing a low incidence of assault. . .  [But] the fighting words doctrine, by requiring the jury to determine whether an ordinary person would respond to the abusive language with immediate violence, already contemplates a fluid community standard for fighting words that naturally includes the extent to which the people of this state are peaceable.
But it must be noted that a "fighting words" defense is generally used in disorderly conduct and assault cases.   Let's take, for example, Talmadge v. Georgia 287 Ga. App. 332, 651 S.E.2d 469, Court of Appeals of Georgia (August 22, 2007).  Talmadge was charged with disorderly conduct for intentionally provoking a man by telling him, "Your mother is a no good bitch."  A murder case is something else entirely.  Talmadge's death would not have been justified just because Talmadge had insulted someone's mother.

At best, the defense has used this argument to reduce a murder charge to manslaughter charge, not to excuse a murder.  Lawmakers are willing to make a distinction if the defendant was aroused to passion as opposed to coldly planning out a murder beforehand.  Their actions are seen as less odious and therefore qualify as a lesser offense.  Space is reserved on death row for those people who engage in murders that are deliberate or premeditated.

The heat of passion defense wasn't allowed before the Twentieth Century.  The judge wrote in People v. Bruggy, 93 Cal. 476, 481 (1892), "Nothing is more surely calculated to arouse the blood of some men to a heat of passion than grievous words of reproach, yet no words are sufficient provocation to reduce an offense from murder to manslaughter; and this principle is so well established in this state that discussion would be out of place."

Let us take a look at a 1946 case, People v. Valentine, 28 Cal.2d 121.  One morning, before daylight, Raymon Boyd heard someone outside his house.  He had previously seen a man peeking through his windows and thought that the man had come back.  He encountered an unfamiliar man, John Valentine, in his front yard.   Valentine said that he was neighbor who lived nearby.  Boyd reportedly replied, "You are a God damned liar."  The judge wrote in his opinion:
Mrs. Valentine, Mrs. Higgins, and Mr. Edmond, also a member of defendant's household, came out of their house when they heard the altercation.  They testified that Boyd repeatedly accused defendant of peeking in his window, cursed him and stated that "That is not the first time that has happened.  I knew I was going to catch him and break his God damned neck."  When defendant attempted to pass Boyd, saying, "Mister, get out of the way and let me go to work," Boyd said, "Don't be in such a God damned hurry," shoved defendant, and put his right hand in his pocket.  Boyd thereafter started toward defendant as if he were going to shove him again and defendant said, "Don't come another step, else I will shoot."  Boyd replied, "You can't scare me with your God damned gun," came on, and defendant fired.
Valentine admitted that he hadn't felt threatened.  "No," he said, "the only thing, when he talked to me, he acted like he was riding over me and it made me hot."  He was asked, "You could have gone on to work and not stopped if you hadn't wanted to?"  He answered, "Well, it was more on account of him making me hot than because of what he said that I stopped."

Valentine was convicted of a lesser offense because something the other man said had gotten him "hot."  Valentine was not excused for killing Boyd.  The longstanding legacy of the case could be observed in the decision for People v. Le, 158 Cal. App.4th 516 (2007):
People v. Valentine (28 Cal.2d 121, 1946) established the rule that words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and hence may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.  Valentine dealt with the question of whether provocative words "are of themselves sufficient to reduce the offense of an intentional homicide with a deadly weapon from murder to manslaughter" as a matter of law. (Id. at p. 140.) The Valentine court resolved a split of earlier authority and said that it was a question for the jury to decide whether the facts were sufficient to show that the defendant acted under the heat of such passion as would naturally be aroused in an ordinarily reasonable person.
The jury, not Hawkins or Haddad, must find if the provocative conduct was sufficient to render a reasonable person temporarily incapable of rational judgment.  It is also the job of the jury to Donley acted in a "cruel and unusual manner." 

It doesn't matter to me what Grant generally thought of black people.  But I am unwilling to assume from the facts at hand that he was a racist.  He was a man who became so angry that he was willing to say something hurtful.  The word that he used was reasonably calculated to hurt, though not necessarily provoke, Donley.  But the word is a distraction from the real issues.

A man might normally feel no hostility towards an overweight person.  But, in the heat of an argument, he will impulsively grapple around for any available word that can be used as a weapon.  So, in confronting an overweight man who is sensitive about his weight, he will call him "fatso."  It is a barb that is guaranteed to strike at the ego of the other man.  Grant used a word to demean and hurt Donley, who he knew was sensitive about his race.  But is that sufficient provocation?  Let's look at The State of Vermont v. Robert William Blish, 776 A. 2d 380 (2001):
In the early morning on the date in question, defendant [Robert William Blish], [Plinio Raphael] Diaz, and Debra Secord were traveling together in Diaz's car, en route from Claremont, New Hampshire to Ascutney, Vermont.  The car was driven by Secord, with defendant riding in the front seat and Diaz alone in the left rear seat.  While driving along State Route 131 in Ascutney, defendant and Diaz exchanged insults.  Defendant referred to Diaz as "nigger," and Diaz responded by calling defendant "fat boy." When Diaz called defendant "fat boy," defendant pulled out a handgun, turned around to face Diaz, and shot him in the face, killing him.  Defendant stated immediately thereafter "There, call me fat boy again."
Was Bliss sufficiently provoked to shoot Diaz?

In re Spivey, 345 N.C. 404, 414-15, 480 S.E.2d 693 (1997) held that racial slur directed at African-American man by white man will cause "hurt and anger" and "often provoke him to confront the white man and retaliate."  The judge consulted Webster's New World Dictionary for a definition of "nigger."  It was noted in dictionary that the word is "generally regarded as virtually taboo because of the legacy of racial hatred that underlies the history of its use among whites, and its continuing use among a minority as a viciously hostile epithet."  Spivey's lawyer complained on appeal that the prosecution brought forward a stream of witnesses to provide their personal anecdotes and opinions on the history of the mistreatment of African-Americans.

In re John M., 201 Ariz. 424, 428, 36 P.3d 772 (App. 2001) similarly held that that racial slurs were "likely to provoke a violent reaction when addressed to an ordinary citizen of African-American descent."

But these were not murder cases.  The Spivey case involved an impeachment procedure.  The John M. case involved a disorderly conduct incident.

Haddad's defense is in itself racist, relying on the premise that black people have so little self-control that a single word can make them homicidal.  Too many people have elevated this word so that it now has supreme powers.  But it is merely a word and to give it the power to justify murder is irrational and immoral.  This word should not be given special treatment by the court.

Many years ago, I got into an argument with a man who was wearing a bow tie.  At that moment, I hated everything about that man, including his bow tie.  That harmless piece of apparel, as an identifying feature, took on an irrational significance as I glared at the man.  "You and your stupid bow tie," I thought to myself.  I have no animosity to people who wear bow ties.  I, myself, have sometimes worn a bow tie.  But this is something that I came into my head in the heat of the conflict.  It was a foolish thought that had no value or meaning. 

Lawrence Storer, upset about being robbed at gunpoint, jumped into his Ford Explorer and ran the car fast and hard into the fleeing robber, which resulted in the robber's death.  Storer went on trial for manslaughter.  His attorney argued that his client "was confronted with a sudden, horrific situation and acted out of character."  The jury agreed and Storer was allowed to go free.  A gun, which presents an immediate deadly threat, creates a horrific situation.  A racial slur, which does not create an immediate deadly threat, does not create a horrific situation.

California Criminal Law Jury Instructions outlines seven criteria that the defendant must meet to qualify for a Heat of Passion defense.
1. The defendant acted in the heat of passion;

2. The defendant was suddenly provoked by decedent or suddenly drawn into combat by decedent;

3. The defendant did not take undue advantage of the decedent;

4. The defendant did not use a dangerous weapon;

5. The defendant did not kill the decedent in a cruel or unusual way;

6. The defendant did not intend to kill the decedent and did not act with conscious disregard of the danger to human life;

7. The defendant did not act with criminal negligence.
Donley’s youth, fitness and sober state gave him an undue advantage.  He demonstrated a conscious disregard of danger to human life.  He killed his victim in a cruel and unusual way.  He showed criminal negligence.  In consideration of the factors in this case, Donley should not have been able to rely on the Heat of Passion defense.

California Criminal Jury Instructions (CALCRIM) No. 917 state, "Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery."  This matter was more extensively addressed in an opinion for Francois Boyd v. United States, No. 97-CM-1803 (District of Columbia Court of Appeals, 1999):
[T]he general view of other jurisdictions is "that in the absence of statute, mere words, no matter how abusive, insulting, vexatious, or threatening . . . will not justify an assault." Eagleston v. United States, 172 F.2d 194, 199 (9th Cir.), cert. denied, 336 U.S. 952 (1949).  See also 6 AM. JUR. 2D Assault and Battery § 61 (1963); 6A C.J.S. Assault and Battery § 18 (1975) ("Generally, provocative words or acts unaccompanied by acts of hostility do not justify an assault although they may go in mitigation of damages.").  This is consistent with our case law.  In the civil context, we recognized that "[a]t common law, in the absence of a special statute, no provocative acts or words - unless accompanied by an overt act of hostility - would justify an assault, no matter how offensive or exasperating the acts or words were."  Williams v. District Unemployment Compensation Bd., 383 A.2d 345, 350 (D.C. 1978) (citations omitted).  Similarly, words cannot form sufficient provocation to negate the element of malice in a homicide case. See West v. United States, 499 A.2d 860, 865 (D.C. 1985); Nicholson v. United States, 368A.2d 561, 565 (D.C. 1977).  In accordance with other jurisdictions, we hold that mere words unaccompanied by overt acts of hostility, cannot act as a defense to the criminal charge of assault.  See, e.g., State v. Blank, 352 N.W.2d 91, 92 (Minn. Ct. App. 1984); State v. Tibbetts, 379 A.2d 735, 737(Me. 1977); People v. Martinez, 3 Cal. App. 3d 886, 889 (Ct. App. 1970); State v. Bogie, 217 A.2d51, 55 (Vt. 1966); State v. Jones, 173 P.2d 960, 961 (Or. 1946).
An intriguing narrative emerges from Osbourne's statements.  She identified that at the core of the tension between the men was Donley's pride as a black man.  A black man who embraces the principles of black pride is obligated to hold a high opinion of himself.  But it is not only what he thinks of himself that is important.  He must demand that others show him respect, too.  It is a militant form of narcissism, which is the reason that black pride is represented by a fist.  It is a corrupting force that can breed sensitivity, rage and death.  In the case of Donley, he believed that the color of his skin put him in a special class and he believed that his personal dignity was more important than another man's life. 

Donley was frustrated with his inability to understand calculus.  He was too proud to face up to his inadequacy and he chose, instead, to project his frustration onto his tutor.  Donley was justified to be angry at calculus.  He was justified to tear up his calculus textbook and slam it against a wall.  But he was not justified to murder Grant.

Let us look at Cantwell et al. v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), a case that involves a group of Jehovah's Witnesses whose aggressive efforts to convert Roman Catholics to the Jehovah's Witness faith proved to be offensive.  The court opinion reads,
On the day of their arrest the appellants were engaged in going singly from house to house on Cassius Street in New Haven.  They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, each of which, when played, introduced, and was a description of, one of the books.  Each appellant asked the person who responded to his call for permission to play one of the records.

Cassius Street is in a thickly populated neighborhood, where about ninety percent of the residents are Roman Catholics.  A phonograph record, describing a book entitled "Enemies," included an attack on the Catholic religion.
The record that the group played for residents denounced Roman Catholics as, according to the court, "instruments of Satan and injurious to man."  The court recognized that the record was bound to offend those Roman Catholics who "honestly held [their] religious faith."  The court noted:
The hearers were in fact highly offended.  One of them said he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street.  The one who testified he felt like hitting Cantwell said, in answer to the question "Did you do anything else or have any other reaction?"  "No, sir, because he said he would take the victrola and he went."  The other witness testified that he told Cantwell he had better get off the street before something happened to him and that was the end of the matter as Cantwell picked up his books and walked up the street.
The man "felt like hitting Cantwell," but he didn't hit Cantwell.  We don't hit someone because we feel like hitting someone.  It is more reasonable to apply a heat of passion defense for Grant using a racial slur than to apply a heat of passion defense for Donley becoming physically violent.

Grant thought he would have the last word as Donley walked away.  He couldn't have anticipated that Donley would turn around and beat him to death.  Why should he assume the student that he had been tutoring for months would engage in such a violent retaliation?

We do not know the totality of the circumstances.  We have no context for the slur.  We do not have Donley's testimony on the matter as Donley refuses to talk.  We do not have Grant's testimony on the matter because Grant is dead.  So, we cannot fully understand the relationship of the parties, the state of feeling that existed between them, and the facts and circumstances contemporaneous with the use of the word.  It remains nothing more than a word that floated out into the air.  Grant may have been provoked to utter the word by a scornful epithet applied to him by Donley.  We don't know.

Carol and Paul Field staged a protest outside of the Broward courthouse.  Carol Field described her brother as "one of the most big-hearted, open-minded, wonderful persons you could know."  She said, "He was patient, kind, he was gentle.  Most of his students were from a diverse background."  She concluded, "I can’t say why Joni did what Joni did but I can say what he did was immoral and awful and he ought to pay for it."

Paul Field said, "That’s quite frankly what is just so incredibly difficult to understand because there’s a free man out there who killed another human being with his bare hands, left him on the pavement, went on living his life and now we’re being told will never be held accountable for his actions.  We just can’t understand that.  We want justice for David."

The criminal court fails to do its job if it condones angry, uncontrolled violence, which is the ultimate form of lawlessness.  A person shouldn't have a right to beat another person to death because that person called them a name.

Damian Sebo claimed that he beat his girlfriend to death because she taunted him with insults about his sexual performance.  At one time, a so-called "gay panic defense" allowed for a man accused of murder to have the charge downgraded if the victim made a "homosexual advance." Should a man be able to kill a woman for calling him "peewee"?  Should a man be able to kill another man for calling him "sweetie"?

The court is left to conclude which insults are "akin to dropping a match into a pool of gasoline."  State v. Tracy, supra, 200 Vt. 237 (2015).  It was their determination in People in the Interest of R.C. (supra, 2016 WL 6803065) that mere utterance of "'cocksucker,' " although vulgar and profane, did not constitute fighting words.  It is a foolish endeavor for judges to sort and weigh offensive words like this.  No word justifies murder. 

The public has reason to be concerned that Donley is walking free.  Let us consider one last scenario.  Donley cuts ahead of other people on a checkout line at a supermarket.  One of the other people gets angry and calls him an "asshole."  Is it possible that he will beat that person to death?  Is it possible that the person will be you?

The behavior that Joni Donley demonstrated on the night that he murdered David Grant indicates impulse control issues and other severe behavioral problems.  He will likely spend the rest of his life under his mother's care.  No company will hire a hot-tempered young man who is capable of killing his supervisor for an unfavorable employee review.  No woman will date a man who has a potential of murdering her during their first spat.  This sort of behavior is not acceptable behavior in a civilized society.

Selected Reference Source

Douglas D. MacFarland, "Present Sense Impressions Cannot Live in the Past," Florida State University Law Review, Volume 28, Issue 4, Article 2, 2001.

1 comment:

  1. Anthony, this is David Grant's sister. I cannot express in words how incredibly grateful I am for you and your blog post. I just saw your blog today, which is David's birthday, the sixth birthday since Joni Donley violently killed David. When Joni left the courthouse last July, escorted by state paid police officers and his mother, he walked by my sister, looked her in the eye, then popped his collar followed by a hand gesture as if flicking lint from his chest (no doubt a gesture meant to convey that David's life meant nothing more to him that that pesky piece of lint). David's life meant so much more than that to so many people.

    I have not given up hope that there will some justice for David, but in the meantime, it is important that the public know that Joni Donley is a dangerous man and Michael Satz needs to be voted out of office. This is not Donley's first run-in with the law, nor, unfortunately, do I believe it will be the last. In fact, when Donley violently killed David, his math tutor, Donley was on probation for a DUI. He was also arrested in 2010. And that is just what I know of. Donley's doctor father (now deceased) and lawyer mother, whose maiden name is "Cunningham" and her family are from a long line of civil rights attorneys in West Palm Beach, Florida, have always protected him (at the expense of the public) from consequences with criminal defense attorneys like Fred Haddad.

    David did not come from those means, but his life definitely mattered. Anyone who knew David all describe him the same way--incredibly intelligent, funny, and immensely generous. As you point out in your blog, our sister, Susan O'Neil, died six weeks before David's death and our uncle died just two weeks before David. David felt the deaths of our sister and uncle very intensely, nor only for obvious reasons but because David was so compassionate and it hurt him to see his sisters, nieces, and nephews in such pain and there was nothing he could do to help. That is who David really was and that is why I refuse to let his name and honor be sacrificed for the State Attorney Office's political/career expediency or a violent killer's false narrative.

    Calling Donley, Satz, and his office out publicly is critical, not only to refuting their ridiculous and, as you point out, logically flawed, excuses for their negligent (perhaps worst) handling of David's case, but also to alert Donley's future employers, girlfriends, or any other citizen who comes into contact with him to know what he has done and is fully capable of doing again. So THANK YOU for your help getting the word out there and honoring David's memory by giving an honest, unbiased description of how Donley got away with murder and how Satz, Chief of Homicide, Shari Tate, and Assistant State Attorneys Gina Hawkins and (former) Al Ribas (now Circuit Judge Ribas) helped him.

    I would love to talk to you if you are willing? I can be reached at or 3056133117. Bless you and your family and thank you!