Clearwater parking lot shooter Michael Drejka wants the sheriff who decided not to arrest him to testify at his manslaughter trial.
Drejka's defense team intends to call Pinellas Sheriff Bob Gualtieri to speak as an expert witness, according to a new court filing. The motion draws on language from Gualtieri's lengthy announcement that Drejka was acting within the bookends of Florida's stand your ground law when deputies say he shot and killed Markeis McGlockton in a convenience store parking lot last year. Prosecutors later charged Drejka with manslaughter.
If permitted, the sheriff’s testimony could pit against each other two groups that are normally on the same side: law enforcement and prosecutors. But to what extent jurors will hear from Gualtieri, or whether they'll hear from him at all, is unknown.
According to the June 6 court filing, the defense expects the sheriff to testify that Drejka, 48, was in fear of further attack when he shot and killed McGlockton, 28, on July 19.
“The expert will testify that in his opinion, because Mr. Drejka was slammed to the ground that in very short order, he ... felt it necessary to defend himself,” the motion says.
Gualtieri, a lawyer himself, scoffed at the idea. While he hasn't researched the court filing enough to comment further, he said, in general it would be inappropriate for him to testify about what's referred to in legal parlance as “the ultimate issue” — or what's at stake in the prosecution of a defendant, he said. That's up to the jury.
“My opinion doesn't matter. The only opinion that matters is what the jury says,” he said. “Anybody can list anybody as a witness, and I'm confident the process will take care of itself and proceed accordingly.”
Pinellas-Pasco Assistant State Attorney Fred Schaub, the lead prosecutor on the case, echoed that concern. He called the move “typical gamesmanship by the defense.”
“I imagine at some point in time once we’ve figured out why they’ve listed him,” Schaub said, “we’ll probably challenge whether or not he has any relevant testimony.”
John Trevena, one of Drejka's attorneys, disagreed. The defense team would call Gualtieri as an expert in use of lethal force, he said, a topic the 30-year law enforcement veteran is well-qualified to speak on.
“It's not about the applicability of the stand-your-ground statute,” Trevena said. “It's about his interpretation of the proper use of lethal force.”
It's a novel approach that could unspool in several ways, legal experts told the Tampa Bay Times.
Clearwater defense lawyer Denis deVlaming thinks it's unlikely the court will allow Gualtieri to testify at all because of his position as a sitting public official.
“The precedent that it would set would be lawyers then going to the trough of people that are known to the public to use them as believable witnesses,” deVlaming said, adding that there are plenty of other experts who could speak on use of force.
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The court could also permit Gualtieri to testify but limit what he's allowed to talk about, said Charles Rose, a former Stetson University College of Law professor.
If Gualtieri does take the stand, Drejka's lawyers could bring up hypothetical scenarios to avoid having him weigh in on the ultimate issue, said Clearwater defense lawyer Kevin Hayslett, such as describing a scenario in which a sheriff's deputy found themselves in the same situation as Drejka.
Or, Hayslett said, the entire strategy could backfire on the defense. For every statement Gualtieri made in the days after the shooting, the state could lob back information that has surfaced since that could have changed the sheriff’s opinion.
“You didn't know this, did you? You didn't know this, did you?” Hayslett said as an example of what the jury could hear. “See that? Game, set, match.”
Still, whether Gualtieri testifies or not, deVlaming said, it's likely the defense will play up the sheriff’s original position not to arrest Drejka:
“The fact that the sheriff thought it was stand your ground — the state’s going to have to buckle up on that.”
Contact Kathryn Varn at firstname.lastname@example.org or (727) 893-8913. Follow @kathrynvarn.