Author Topic: FBI Objects to Judge's Order Compelling Disclosure of Case Records  (Read 8989 times)

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Offline TalkLeft

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I have deleted the thread entitled FBI Objects to Defense Subpoena.

1. The defense did not seek a subpoena for information from the FBI. It filed an Amended Motion for Specific Discovery on December 7, 2012 asking that the State supply the defense with a list of items from the FBI.

Quote
COMES NOW the Defendant, GEORGE ZIMMERMAN, by and through his undersigned counsel, and pursuant to Rule 3 .220, Fla. R. Crim. P., hereby files this his Amended Demand for Specific Discovery, demanding that the State of Florida forward true and accurate copies of all of the following information listed below.

2. The Court granted the defense motion at 12/11/12 hearing. The minutes state:

Quote
DEMAND FOR SPECIFIC DISCOVERY REGARDING FBI AND DOJ
ATIY OMARA PRESENTED ARGUMENT TO THE COURT.
ANYTHING THAT EITHER AGENCIES HAVE REGARDING THIS CASE, IS TO BE AVAILABLE FOR THE DEFENSE TO REVIEW AND COPY. ATTY OMARA SHALL PREPARE A WRITTEN ORDER FOR THE COURTS SIGNATURE

3.  On Feb. 5, the defense asked the Court to issue the written order it had prepared reflecting what the Court had ordered at the 12/11 hearing.  The state did not object and court did so. From the Feb. 5 minutes:

Quote
ATTY O'MARA ADDRESSED THE COURT REGARDING PREVIOUS RULINGS BY THE COURT AND REQUESTED WRITTEN ORDERS BE SIGNED BY THE COURT.
ATTY DE LA RIONDA RESPONDED, HAVING NO OBJECTION TO THE COURT SIGNING WRITTEN ORDERS.
THE COURT SIGNED ORDERS ON: THE MOTION TO COMPEL PRODUCTION OF EVIDENCE FROM THIRD-PARTY,AMENDED DEMAND FOR SPECIFIC DISCOVERY(2), MOTION TO COMPEL ADDITIONAL DISCOVERY, MOTION TO MODIFY CONDITIONS OF RELEASE, MOTION TO TAKE ADDITIONAL DEPOSITION , AND MOTION FOR CLARIFICATION
OF ORDER SETTING BAIL.

4. The Department of Justice, representing the FBI, has now filed an objection to the Court's Feb 5 order. It is not objecting to a subpoena as one was never sought or issued.

Quote
COMES NOW the United States of America ("United States''), on behalf of the
Federal Bureau of Investigation ("FBI"} and through the undersigned Assistant United
States Attorney pursuant to 28 U.S. C. 517, and respectfully objects to this Court's
Order on Amended Demand for Specific Discovery
, dated February 5, 2012, and
requests that the same be vacated.

5. The Judge was the one who ruled anything DOJ or the FBI have is to made available to the Defense. The defense, in its motion, asked that the State obtain the records from the FBI and make them available. That is quite different from the defense asking to subpoena records from the FBI or DOJ directly.

The state's duty of disclosure is not limited to evidence in the actual possession of the prosecutor. It extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies. Kyles v. Whitley , 514 U.S. 419 (1995); (See also Strickler v. Greene , 527 U.S. 263, 275 at n.12 (1999).)

Obviously Don West, who was a federal public defender until resigning to represent GZ, knows about Touhy regulations and how to subpoena information from DOJ and the FBI. It didn't request a subpoena. It requested that the state, as the leader of the prosecution team which included other agencies such as the Sanford PD and the FBI. obtain the records from the FBI.

My opinion: I doubt Nelson can order the FBI to produce anything to the defense. Her order of Feb. 5 has always struck me as odd. She should have just granted what the defense asked for in its written motion: That the state get the information from the FBI and produce it to the defense  (obviating the need for the defense to jump through the hoops of getting things directly from the FBI. ) She's the one who put the defense in the untenable position of making a demand for records directly from the FBI by virtue of her order. But even so, the issue seems to me to be the ability of a state court judge to issue a discovery order directing a federal agency produce records directly to a defendant in a state case. It is not about whether the defense properly requested a subpoena. The defense never sought a subpoena.

In fact, at the 12/11 hearing, O'Mara, Bernie and Don West raised the issue of the FBI's likely response to the Court's ruling and Nelson told them  to give the FBI notice and she said the FBI would have 20 days to respond.

West then told the judge he had discussed the best way to get the FBI's information with one of the FBI agents, and he said to ask for it through the state's attorney's office, which is what the defense did.

Because of the mislabeling of the thread on this issue, I deleted it and am starting this one.

« Last Edit: February 27, 2013, 11:10:38 PM by TalkLeft »

Offline TalkLeft

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #1 on: February 27, 2013, 11:22:26 PM »
Diwataman has a post on this issue here, with a video of this part of the hearing.

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #2 on: February 28, 2013, 12:07:20 AM »
Do you have to rub it in so much? In my defense, the government objection treats the order in several places as a subpoena ("No Act of Congress effects a general waiver of sovereign immunity with respect to state court subpoenas orders."). And what is a court order to a non-party to produce evidence other than a subpoena duces tecum? In Florida, "[d]iscovery from nonparties must be had by deposition or subpoena duces tecum." Sjuts v. State, 754 So. 2d 781 (Fla, 2d DCA 2000).

Offline TalkLeft

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #3 on: February 28, 2013, 12:52:13 AM »
I wasn't rubbing it in and didn't even say who started the thread.  And I do appreciate the case law you contribute here. I certainly didn't mean to hurt your feelings. But I'm not going to have a thread stay that is titled with a factually inaccurate statement of a legal issue.  I 'm  just trying to keep the forums accurate and not a source of misinformation.

No, it's not like a subpoena. It was a discovery motion seeking production from the state of  records in the possession of a law enforcement agency that participated in the case. The inference from the mischaracterization is that the defense team didn't know how to properly request records from the FBI, as opposed to making a strategic decision.

I wonder why it took from Dec. to Feb. for O'Mara to file the proposed written order. I doubt it's because they forgot. I suspect, but of course don't know, that they immediately told the FBi about the order and asked for the records, and the FBI said they'd have to run it up the chain and they'd get back to them. And ii was Feb. before they did so.  Anyone have any ideas on the delay?
« Last Edit: February 28, 2013, 12:54:13 AM by TalkLeft »

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #4 on: February 28, 2013, 01:34:18 AM »
No, it's not like a subpoena. It was a discovery motion seeking production from the state of  records in the possession of a law enforcement agency that participated in the case. The inference from the mischaracterization is that the defense team didn't know how to properly request records from the FBI, as opposed to making a strategic decision.

Now that I see the history you posted, I agree the defense wasn't requesting the court issue a subpoena to the FBI. But that's what the court effectively did. The court order says:

Quote
The Federal Bureau of Investigation is hereby directed to make available for review and copy to counsel for the Defendant any and all documents, information, data and/or evidence regarding their investigation in connection with the above-referenced matter, including but not limited to the following:

* * *

How is that distinguishable from a subpoena duces tecum?

Offline Evil Chinchilla

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #5 on: February 28, 2013, 02:06:30 PM »
Quote
COMES NOW the United States of America ("United States''), on behalf of the
Federal Bureau of Investigation ("FBI"} and through the undersigned Assistant United
States Attorney pursuant to 28 U.S. C. 517, and respectfully objects to this Court's
Order on Amended Demand for Specific Discovery, dated February 5, 2012, and
requests that the same be vacated.
[BBM]
Um, 2012?

Am I the only person who noticed that incorrect date given by Sean P. Flynn five times in an 8-pg. document?

At first I thought that might've been the point of contention, since it was always said in context of "dated February 5, 2012," and that it was a subtle way of noting what the hold-up was.

But then I noticed that in addition to one instance (p. 2) where Flynn correctly states "On February 5, 2013, this Court entered an Order"-- the distinction between "entered" and "dated" seemingly again pointing to an inaccurately crafted document having been submitted-- he also labels the entire document "UNITED STATES OF AMERICA'S OBJECTION TO ORDER ON AMENDED DEMAND FOR SPECIFIC DISCOVERY, DATED FEBRUARY 5, 2013".

Since Jeralyn points out what the real issue is, I can now only conclude that it's just Flynn being sloppy on the dates in his documents.

Offline AghastInFL

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #6 on: February 28, 2013, 03:31:42 PM »
[BBM]

Um, 2012?

Am I the only person who noticed that incorrect date given by Sean P. Flynn five times in an 8-pg. document?

At first I thought that might've been the point of contention, since it was always said in context of "dated February 5, 2012," and that it was a subtle way of noting what the hold-up was.

But then I noticed that in addition to one instance (p. 2) where Flynn correctly states "On February 5, 2013, this Court entered an Order"-- the distinction between "entered" and "dated" seemingly again pointing to an inaccurately crafted document having been submitted-- he also labels the entire document "UNITED STATES OF AMERICA'S OBJECTION TO ORDER ON AMENDED DEMAND FOR SPECIFIC DISCOVERY, DATED FEBRUARY 5, 2013".

Since Jeralyn points out what the real issue is, I can now only conclude that it's just Flynn being sloppy on the dates in his documents.
Interesting, it seems the FBI docs have a habit of getting incorrect dates in some form or fashion, the Chris Serino FBI report has at least three different dates on it, two of which are impossible.

Offline DiwataMan

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #7 on: February 28, 2013, 04:16:59 PM »
Okay, so if it was a strategic decision by the defense to get the State to contact the FBI and get O'Mara what he wanted then O'Mara was successful in that regard at the Dec 7, 2012 hearing. He got the judge to order the state to contact the FBI with the list of things O'Mara wanted.

@21:42
http://www.youtube.com/watch?feature=player_embedded&v=1Jpm-ObSRaE

"Here's what I'm going to rule on that issue with the FBI. If you provide the State with a list of the things that you think the FBI has done, Mr. de la Rionda will then call the FBI and ask them "do you have this information and if you do provide it" and he will pass it on to you. That's the best I can do. If you will put that in the proposed order."

O'Mara agrees.

Four days later, at the Dec 11 hearing, that "strategy" changed.

O'Mara brings the judge the list and after a whole four days the judge completely forgets what she said and changes her previous order from "give the list to the state etc." to "anything the FBI has in their possession regarding this case should be made available to the defense to inspect an copy." HELLO? WHAT? She also forgets that four days ago she made a big point by telling the defense they have to show something specific and now she's like "hey they may have more than this you might want so just go there". HUH? What is going on here? O'Mara agrees to this and never brings up that he is to give the state the list and they will get it. WHY? That's what he wanted. That's what he got four days ago. And now that changes?

How is it that four days after O'Mara getting what he wanted does he forget? How does the judge forget? The state sits there like a potted palm because it has been their position they do not have the obligation to get the info for O'Mara because 1) it's a separate and ongoing investigation 2) the defense can subpoena the FBI themselves and 3) because they have already contacted the FBI, continue to do so and provided the defense with what they got before, so of course they are not going to say anything.

Why did the defense change its strategy at the Dec 11 hearing?
« Last Edit: February 28, 2013, 04:19:53 PM by DiwataMan »

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #8 on: February 28, 2013, 05:40:33 PM »
Why did the defense change its strategy at the Dec 11 hearing?

Perhaps they just realized it would be pointless to argue with Judge Nelson. She'd just say she'd given them a way of obtaining what they wanted, so go do it.

Offline DiwataMan

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #9 on: February 28, 2013, 06:20:38 PM »
Perhaps they just realized it would be pointless to argue with Judge Nelson. She'd just say she'd given them a way of obtaining what they wanted, so go do it.

That "way", as stated at the hearing and in the order, was, paraphrasing, that O'Mara could go to the FBI office and get a copy of anything he wanted in regards to the case.
http://184.172.211.159/~gzdocs/documents/0213/order_amended_demand_specific_discovery.pdf

Does anyone here not see a problem with that?

Offline RickyJim

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #10 on: February 28, 2013, 06:35:36 PM »
I asked this before the thread was moved.  Is this much ado about nothing?  What unreleased evidence could the FBI possibly have that would help the defense?

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #11 on: February 28, 2013, 06:46:47 PM »
That "way", as stated at the hearing and in the order, was, paraphrasing, that O'Mara could go to the FBI office and get a copy of anything he wanted in regards to the case.
http://184.172.211.159/~gzdocs/documents/0213/order_amended_demand_specific_discovery.pdf

Does anyone here not see a problem with that?

The problem is obviously that the FBI doesn't have to obey a state subpoena duces tecum demand for specific discovery. I can pretty much guarantee, though, that if the defense had said that to the judge, she would have dismissed it with one of her "how do you know until you've tried?" replies.

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #12 on: February 28, 2013, 06:57:37 PM »
I asked this before the thread was moved.  Is this much ado about nothing?  What unreleased evidence could the FBI possibly have that would help the defense?

You have no idea what evidence the FBI information might lead to.

Offline DiwataMan

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #13 on: February 28, 2013, 07:02:53 PM »
The problem is obviously that the FBI doesn't have to obey a state subpoena duces tecum demand for specific discovery. I can pretty much guarantee, though, that if the defense had said that to the judge, she would have dismissed it with one of her "how do you know until you've tried?" replies.

I thought the problem is the Judge, O'Mara and West all though that O'Mara could just walk into the FBI office and get a copy of whatever he wanted. Is that not the problem?

Offline MJW

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Re: FBI Objects to Judge's Order Compelling Disclosure of Case Records
« Reply #14 on: February 28, 2013, 07:13:38 PM »
I thought the problem is the Judge, O'Mara and West all though that O'Mara could just walk into the FBI office and get a copy of whatever he wanted. Is that not the problem?

I'm not convinced O'Mara and West believed they could get the information. They may have known they wouldn't, but also known that they'd gain nothing by questioning Judge Nelson's approach.

 

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