Author Topic: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses  (Read 16373 times)

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Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #15 on: February 22, 2013, 07:27:05 PM »
The requirement that witness address be given to the defense within 15 days doesn't depend of the defense demonstrating an need; it's Florida Rule of Criminal Procedure 3.220(b)(1).

Do you have a source for the text of this rule? The case you cited doesn't quote the text of the rule. It just says what the rule required in that particular case.

As I understand it, this would be a rule promulgated by a court decision, not part of the statutory Rules of Criminal Procedure (Ch. 900-985).

Offline MJW

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #16 on: February 22, 2013, 07:37:07 PM »
I don't think so. The Richardson case isn't even cited. It's mentioned in passing as the source of a nickname.

Several other cases are cited in State v. ROLACK, (Fla. 5th DCA 2013).

The passage that mentions the 15 day requirement in State v. ROLACK doesn't cite case law. It cites the Rules of Criminal Procedure. The footnote says:

Quote
Pursuant to Florida Rule of Criminal Procedure 3.220(b)(1), the prosecutor had an obligation to provide an address for Fernandez to the defense within fifteen days after service of the Notice of Discovery.

Note, RickyJim, it doesn't say, "the prosecutor had an obligation to provide an address for Fernandez to the defense within fifteen days after service of the Notice of Discovery if it could demonstrate a need for that information." Judge Nelson is simply ignoring the law. She made up her mind, and nothing's going to change it.

For NM_NM's next question (from Florida Rules of Criminal Procedure):

3.220(b) Prosecutor’s Discovery Obligation.

(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state‘s possession or control, except that any property or material that portrays sexual performance by a child or constitutes child pornography may not be copied, photographed, duplicated, or otherwise reproduced:

(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:

* * *
« Last Edit: February 22, 2013, 07:42:48 PM by MJW »

Offline RickyJim

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #17 on: February 22, 2013, 08:09:22 PM »
I wasn't paying that close attention to what Nelson said about the addresses.  Did she agree with BDLR that the addresses were protected under the "personal safety" exception to the disclosure rules?   As a practical matter, I don't think the defense should mind not having the addresses.  It is clear it gives them an appeal issue and it is not clear that having them would give them anything useful for their case.  So overall, Nelson's decision is a plus for them.   8)

Offline RickyJim

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #18 on: February 22, 2013, 08:15:22 PM »
The passage that mentions the 15 day requirement in State v. ROLACK doesn't cite case law. It cites the Rules of Criminal Procedure. The footnote says:
In that case, the appeals court threw out a judge's decision to bar the use of 2 witnesses because of a discovery violation involving not giving the email address of one witness to the defense.  So apparently these Rules of Criminal Procedure do not have to be followed to the letter.

Offline MJW

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #19 on: February 22, 2013, 08:28:31 PM »
In that case, the appeals court threw out a judge's decision to bar the use of 2 witnesses because of a discovery violation involving not giving the email address of one witness to the defense.  So apparently these Rules of Criminal Procedure do not have to be followed to the letter.

There's no rule that the sanction for discovery violations has to be excluding the witnesses. As I've mentioned before, witnesses are seldom excluded for discovery violations. The appellate court mentions a continuance or even a mistrial as possible remedies.

Offline MJW

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #20 on: February 22, 2013, 08:33:47 PM »
I wasn't paying that close attention to what Nelson said about the addresses.  Did she agree with BDLR that the addresses were protected under the "personal safety" exception to the disclosure rules?   As a practical matter, I don't think the defense should mind not having the addresses.  It is clear it gives them an appeal issue and it is not clear that having them would give them anything useful for their case.  So overall, Nelson's decision is a plus for them.   8)

She didn't explain her inexplicable decision. She just sat there listening to BDLR's irrelevant arguments, then said she was sticking with her prior ruling. It gives the defense a major disadvantage in preparing to depose W8, and likely no advantage should a post-conviction appeal be necessary. The appellate court will very likely pass it off as harmless error.

Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #21 on: February 22, 2013, 09:20:03 PM »
It is clear it gives them an appeal issue and it is not clear that having them would give them anything useful for their case. 

It's 'not clear' what any investigation will show until it's done. That's a ridiculous argument.

Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #22 on: February 22, 2013, 10:32:58 PM »
For NM_NM's next question (from Florida Rules of Criminal Procedure)

Thank you.

Rule 3.220 has some exceptions. Three look possibly relevant to me.

First is 3.220(e) Restricting Disclosure. This is the '"personal safety" exception'  mentioned by RickyJim.

Quote
The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

Basing Judge Nelson's ruling on this doesn't make sense to me. Is there a 'substantial risk' associated with each witness, which evaporates the moment that witness's deposition is taken? Under this provision, it looks to me that the defense is entitled to the information or it isn't. I don't see the basis for 'wait until the deposition'.

More promising, I think, are 3.220(k) Court May Alter Times, and 3.220(l)(1) Motion to Restrict Disclosure of Matters.

Both of these seem to put the burden on the prosecution to show 'good cause'.

Were either of these invoked when Nelson first told the defense to get the addresses at the depositions? Does anyone recall which hearing that was?

ETA: See pp. 118, 122, and 125 of the pdf MJW linked.
« Last Edit: February 22, 2013, 10:37:06 PM by nomatter_nevermind »

Offline MJW

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #23 on: February 22, 2013, 10:56:11 PM »
Basing Judge Nelson's ruling on this doesn't make sense to me. Is there a 'substantial risk' associated with each witness, which evaporates the moment that witness's deposition is taken? Under this provision, it looks to me that the defense is entitled to the information or it isn't. I don't see the basis for 'wait until the deposition'.

I agree completely. On CTH on Feb. 2, I said:

Quote
So far, I’m not anti-Nelson like many here, but I think she really blew that call. Judge Lester’s ruling applied to public release of witnesses’ personal information. Not only was Judge Nelson’s decision on DeeDee’s address contrary to Florida law, it made no sense. If she’s going to allow the defense to ask DeeDee her address in a deposition, nothing is protected. All she’s doing is making the defense’s job harder.

(After today's hearing, I am anti-Nelson.)

Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #24 on: February 23, 2013, 12:06:57 AM »
Were either of these invoked when Nelson first told the defense to get the addresses at the depositions? Does anyone recall which hearing that was?

After looking over some threads, I think the answer to the latter question is 10/19/12.

Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #25 on: February 23, 2013, 02:34:38 AM »
Video of 10/19/12 hearing.

Witness addresses, 0:53:26-1:02:33.

Mortimer has added more commentary since the last time I looked at this. (They can be turned off with the leftmost icon in the row at the bottom right of the video, a rectangular talk balloon with the pop-up legend 'hide annotations'.)

West argued the motion, citing Rule 3.220 and Holmes v. State, which he said is 5th DCA. So far I haven't found any information about it.

There are cases with that name in other districts. I've looked at the one for 1st DCA and it doesn't seem to fit.

I may have the wrong spelling.
« Last Edit: February 23, 2013, 02:42:54 AM by nomatter_nevermind »

Offline nomatter_nevermind

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #26 on: February 23, 2013, 03:01:15 AM »
After reviewing the relevant part of the video (10/19/12), I concur with MJW.

De la Rionda made a ridiculous argument, presupposing that disclosing information to the defense in any context but a deposition was equivalent to putting it in a press release.

Judge Nelson just said that she didn't think the defense needed the addresses before the depositions.

Neither addressed Rule 3.220, or the case law cited by West.
« Last Edit: February 23, 2013, 03:03:30 AM by nomatter_nevermind »

Offline RickyJim

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #27 on: February 23, 2013, 06:19:08 AM »
The judge may or may not have made an error in not having the prosecution hand over addresses.  However, I think she and the prosecution have a point that the defense should have taken depositions of prosecution witnesses long ago.  What was the earliest time the defense could have deposed Witness#8 and the other people whose addresses were withheld from them?  How long after that did they start to ask for more information prior to a deposition?   I find no evidence that the judge would refuse to allow a second deposition of a witness if the defense could show a definite need based on information gathered during and since the first deposition.  In fact, I remember her saying just the opposite. 

I am getting more and more doubtful of the competence of the defense lawyers.  Actually, I had doubts about O'Mara from his first day on the job when he didn't challenge the Affidavit of Probable Cause in front of Judge Herr. 
« Last Edit: February 23, 2013, 06:24:49 AM by RickyJim »

Offline AJ

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #28 on: February 23, 2013, 06:54:39 AM »
... I think she and the prosecution have a point that the defense should have taken depositions of prosecution witnesses long ago.  What was the earliest time the defense could have deposed Witness#8 and the other people whose addresses were withheld from them? ...

The information they were requesting is what was keeping them from deposing the witnesses, as they explained on 10/19. They couldn't conduct their own investigation of the witnesses (ie: asking neighbors about them) without having the information that the State was withholding. You, under normal circumstances, only get one deposition. Judge Nelson made it clear that she was not willing to allow them 2 depositions even if the first was ONLY to get the information which they requested.

Incompetent defense? Lets see you do better :)

Offline RickyJim

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Re: Feb. 22 Hearing on Subpoenas, Crump Deposition and Production of Addresses
« Reply #29 on: February 23, 2013, 07:33:07 AM »
Judge Nelson made it clear that she was not willing to allow them 2 depositions even if the first was ONLY to get the information which they requested.
She did?  Please give reference.  We just learned that there was a mini (pre)deposition of W#8 to get her social media handles so what you are saying seems incorrect.  Since they never had the money to hire PIs to investigate the witnesses, just what could they have done with the addresses?
« Last Edit: February 23, 2013, 07:37:29 AM by RickyJim »

 

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