The defense is also challenging the search warrant served at the Supervisor of Elections Office.
The legal team for former Flagler County elections supervisor Kimberle Weeks is contesting the search warrant that let Florida Department of Law Enforcement agents search her office, and hopes to break the case against her into several separate trials.
Weeks faces 12 felony counts over charges that she surreptitiously recorded county and state officials and others — including Florida Secretary of State Ken Detzner, Flagler County commissioners and County Judge Melissa Moore Stens — while she was in office, then disseminated at least one of those recordings.
In Florida, recording someone's conversation without their permission, and disseminating such a recording, is generally a crime, with exceptions for specific situations in which there is no reasonable expectation of privacy. Weeks is charged with seven counts of intercepting oral communication and five counts of invasion of privacy by illegal disclosure of communication.
In a pretrial hearing Jan. 8, defense attorney Joerg Jaeger told Judge Margaret Hudson that the defense has filed a motion to suppress the search warrant that let FDLE agents search Weeks' office in October of 2014.
Jaeger said he plans to subpoena Phil Lindley, the FDLE agent who served the warrant, and bring him to testify in court at an upcoming hearing on the motion.
"The big issue is what's not contained in the search warrant, why isn't it in the search warrant," Jaeger said.
Lindley has retired, Jaeger said, and the attorneys will need time to find him to subpoena him before the next hearing. Jaeger also plans to bring Weeks, who has not appeared at any of the three pretrial hearings so far, to the upcoming hearing on the motion to suppress the warrant, he said.
The defense has exhibits consisting of photographs of the canvassing board room, canvassing board office, supervisor of elections office and sign-in-sheets, Jaeger said, and "My client would be here to verify these exhibits as being true or correct on the dates and times in question."
Jaeger has also filed two "motions to sever," hoping to separate out the cases in which Weeks is charged with recording people while acting in her official capacity as elections supervisor from those in which she's charged with recording private conversations with acquaintances, and also from those in which she's charged with recording Palm Coast city officials.
The prosecution, represented at the pretrial by Assistant State Attorney Jason Lewis, plans to contest the motion.
"Obviously we believe that it's a common conduct of her, and there's going be other reasons why we believe them to be admissible in the same trial, so I don't believe that we can sever them," Lewis said to Hudson.
Lewis said the hearing on Jaeger's two motions to sever may be lengthy, telling Hudson it is "not something we can do in five minutes," and warning her that one of the recordings — which she may have to listen to to make a determination about whether to divide the case into three separate ones — is about eight to ten hours long.
Jaeger has also requested the hourly payment records for County Attorney Al Hadeed, who has said that a conversation Weeks is charged with surreptitiously recording and disseminating involved a privileged attorney-client conversation between Hadeed and County Commissioner Charlie Ericksen.
"Did he bill the Canvassing Board?" Jaeger said. "Did he bill the Board of County Commissioners? Who was he actually representing at that time?"
Jaeger said he'd also filed a public records request for Hadeed's contract, calling it "kind of odd" because it's an automatic-renewal contract. Although Hadeed's contract, like County Administrator Craig Coffey's, is set to automatically renew every several years unless the county ends it, Hadeed is subject to performance reviews and the contract specifically states that the county can end his contract at any time.
Hadeed and Ericksen did not attend the Jan. 8 pretrial.
In attendance were Dennis McDonald, to whom Weeks sent a copy of her recording of the conversation between Ericksen and Hadeed; Mark Richter, who with Weeks filed a slew of ethics commission and elections commission complaints against county officials; and John Ruffalo, who filed an ethics commission complaint against Hadeed which was dismissed by the commission.
The date for the next hearing in the Weeks case was not set at the Jan. 8 pretrial hearing, but Hudson said she would consider a single date in March to hear both the motion to suppress and the two motions to sever.