Author Topic: Writ of Certiorari (Crump Deposition)  (Read 31539 times)

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Offline Cylinder

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Writ of Certiorari (Crump Deposition)
« on: April 04, 2013, 02:30:21 PM »
PETITION FOR WRIT OF CERTIORARI
 
Quote
COMES NOW the Petitioner, GEORGE ZIMMERMAN, by and through his undersigned counsel pursuant to Florida Rules of Appellate Procedure 9.1 00( c) and 9.030(b )(2)(A), and Article V, Section 4 of the Florida Constitution, and petitions the Court for issuance of a Writ of Certiorari reversing the lower court's orders dated March 4, 2013 and March 28, 2013 denying Petitioner's discovery request to take the deposition of attorney Benjamin Crump.

« Last Edit: April 04, 2013, 02:33:13 PM by Cylinder »

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #1 on: April 04, 2013, 02:43:22 PM »
Unfortunately, I think it will be denied based on Bill Kasper Const. Co., Inc. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012).

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #2 on: April 04, 2013, 02:50:34 PM »
Unfortunately, I think it will be denied based on Bill Kasper Const. Co., Inc. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012).

I'll look at that - but O'Mara has cited a few cases that he asserts support intervention.

Meanwhile, the pleading covers quite a bit of ground relating to the state's slow rolling of evidence, and also includes quite a bit that leads one to conclude there are significant questions about Witness 8's communication, and being coahed.  Both Tracy and Sybrina deny, in their depositions, speaking with with Witness 8 about her possible testimony.  So, mutual throwing under the bus, amongst Tracy, Sybrina and Crump.  But, the state has introduced a letter given to Sybrina (which reads like a statement, not like a letter).  And didn't Tracy say he contacted Witness 8, as a prelude to the introduction to Crump?

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #3 on: April 04, 2013, 02:55:49 PM »
I'll look at that - but O'Mara has cited a few cases that he asserts support intervention.

His cases are older, and the case I cited seems to explicitly recede from them.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #4 on: April 04, 2013, 03:07:13 PM »
His cases are older, and the case I cited seems to explicitly recede from them.

Well, on a quick view, Kaspar involves the trial court striking three EXPERTS (who were introduced late in the process), in a civil litigation.  Here we have a FACT witness, not an expert, and the counterbalance is defendant's right to a fair trial.  Plus, there is no issue with timeliness of recognizing Crump as a potential fact witness; the court did so, itself, months ago.  The court is now finding a sort of privilege, and as the petition well points out, Judge Nelson did not address the legal issue of waiver.

The legal question ends up being a process one - as to whether or not this is the correct time to hear an appeal on denial of discovery to a criminal defendant.  The majority appears to find that defendant can always get a retrial.  I don;t know if O'Mara is correct, that if the venue is new trial, does he have an opportunity to depose Crump.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #5 on: April 04, 2013, 03:19:53 PM »
Well, on a quick view, Kaspar involves the trial court striking three EXPERTS (who were introduced late in the process), in a civil litigation.  Here we have a FACT witness, not an expert, and the counterbalance is defendant's right to a fair trial.

As to the distinction between a fact witness and an expert witness, one of the cases receded from is Travelers Indemnity Company v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980), which does involve a fact witness. While a defendant's right to a fair trial may hold some weight, the courts have generally followed the same rule in criminal cases as in civil cases in only allowing interlocutory appeals only when the error can't be corrected by a post-trial appeal.
« Last Edit: April 04, 2013, 03:23:02 PM by MJW »

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #6 on: April 04, 2013, 03:29:22 PM »
As to the distinction between a fact witness and an expert witness, one of the cases receded from is Travelers Indemnity Company v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980), which does involve a fact witness. While a defendant's right to a fair trial may hold some weight, the courts have generally followed the same rule in criminal cases as in civil cases in only allowing interlocutory appeals only when the error can't be corrected by a post-trial appeal.

Again, assuming O'Mara can depose Crump for a second trial (contrary to what he says or implies, that is, inability to depose Crump must be decided before trial, because defense forever loses that possibility once the trial is concluded), I agree that Kasper augurs for denial of the petition.

Separately, is this going to throw Bernardo into a tizzy?  I figure Crump and Blackwell are well prepared, albeit annoyed, to have to respond to this pleading.  On reflection, I don't know that the state has expressed a point of view one way or the other as to deposing of Crump.  Maybe Bernardo shrugs this off, or uses is as yet another reason that O'Mara is late with producing a witness list.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #7 on: April 04, 2013, 03:34:28 PM »
As to the distinction between a fact witness and an expert witness, one of the cases receded from is Travelers Indemnity Company v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980), which does involve a fact witness. While a defendant's right to a fair trial may hold some weight, the courts have generally followed the same rule in criminal cases as in civil cases in only allowing interlocutory appeals only when the error can't be corrected by a post-trial appeal.

I'm going to recede from my previous, and point out a distinguishing factor in the courts reasoning in the Kasper case.
When an order striking testimony is entered, the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial. Indeed, we have routinely reviewed a trial court's decision to strike an expert witness when considering cases on direct appeal.

In this case, there is no way for defendant to proffer [Crump's] testimony.  While in the Travelers case, the fact witness may have been defense's own witness, one willing to proffer testimony, that is certainly not the case here.  Crump is unwilling to provide testimony.  So, the distinguishing quality isn't as between fact or expert/opinion witness, it is between the testimony being available to the defendant, or not.

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #8 on: April 04, 2013, 03:48:08 PM »
It seems to my layperson mind, at least, that in asking for the extraordinary relief, O'Mara presents an extraordinary fact - that the court first found that Crump was a witness in regard to the recording but then prohibited his deposition on the subject.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #9 on: April 04, 2013, 03:55:27 PM »
On the Random Topics blog, I said:

On the TalkLeft discussion of this issue, cboldt somewhat disputes my opinion that Kasper will determine the issue.

The point I think he's making is interesting. If Crump were on the defense's side, then on direct appeal the defense could proffer his testimony, allowing the appellate court to determine if the error was harmless. Since Crump is an adverse witness, there's no way to really know how helpful his testimony would have been. So if there was an error, the harmfulness would be difficult to determine.

The problem could be solved by granting a new trial if denying the Crump deposition was an error, but that seems like a roundabout way of handling an error which might or might not have been completely harmless.
« Last Edit: April 04, 2013, 03:57:04 PM by MJW »

Offline nomatter_nevermind

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Re: Writ of Certiorari (Crump Deposition)
« Reply #10 on: April 04, 2013, 03:57:57 PM »
Am I reading p. 21 correctly? Is the defense accusing ABC of destroying all but five minutes of their recording of the 3/19 W-8 interview?

Offline RickyJim

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Re: Writ of Certiorari (Crump Deposition)
« Reply #11 on: April 04, 2013, 04:06:55 PM »
Quote
Out of the 25-minute clear recording ABC News took of the interview, ABC has only preserved the 5-minute clip referenced supra.
Why would they only preserve that particular portion? 

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #12 on: April 04, 2013, 04:12:54 PM »
On the Random Topics blog, I said: ... [snipped]

The problem could be solved by granting a new trial if denying the Crump deposition was an error, but that seems like a roundabout way of handling an error which might or might not have been completely harmless.

Thanks for the attribution.

As for being "round about," that is the very nature of correction via appeal.  The state would be given deference (right to obtain reversal on interlocutory appeal) because an acquittal ends the state's opportunities.  Not so with the defendant, who can be given a new trial.

Doesn't O'Mara suggest or say that the decision to preclude deposition of Crump can't be revisited after trial?  Yeah, page 24, "Petitioner cannot take Mr. Crump's deposition after final judgment is entered."  I don't know if that precludes taking Mr. Crump's deposition between a first and second trial; were "final judgment" is being used here in the normal sense of all times for appeal and all appellate decisions have been exhausted, and while true, may be an irrelevant observation to the question of the timing of THIS appeal.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #13 on: April 04, 2013, 04:14:54 PM »
Am I reading p. 21 correctly? Is the defense accusing ABC of destroying all but five minutes of their recording of the 3/19 W-8 interview?

Yes.  ABC only preserved 5 minutes.  The rest was erased, trashed, whatever.

Offline vegas

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Re: Writ of Certiorari (Crump Deposition)
« Reply #14 on: April 04, 2013, 04:51:14 PM »
It seems to my layperson mind, at least, that in asking for the extraordinary relief, O'Mara presents an extraordinary fact - that the court first found that Crump was a witness in regard to the recording but then prohibited his deposition on the subject.

How sweet it is!  :) :) :)

 

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