I wonder how much the response will focus on the merits and how much it will focus on dismissing the petition because relief is available on appeal if there's a conviction. If the state wins on the latter (as I've already said I believe they probably will) the former doesn't matter. I won't be surprised if the response is written by someone in the state attorney's office other that BDLR.
I think the response will argue both points, similar to the petition arguing 1) Crump isn't opposing counsel, but 2) even if he is ...
Did you see State v. Loano
, 616 So.2d 73 (Fl 1st DCA, 1993)? That court carved out an exception to the law, but the remedy was change of venue (not discovery), the state petitioned for reversal of the trial court's order, all parties in the appeal argued in favor of a change of venue for a retrial, and the rationale for not waiting until after the retrial had been completed was that ANY outcome in that trial (assuming venue was not changed) would be seen as wrong, to the extent that a decision might trigger civil unrest.
In light of the intense media coverage of this case, the problems with providing Lozano a fair trial increase with each trial. Further, we are persuaded by the State's argument that it should not be required to prosecute an individual in circumstances which it believes are violative of the defendant's constitutional rights. We agree that public confidence in our criminal justice system cannot be maintained under such circumstances, and that either a conviction or an acquittal resulting from such a trial would be inherently suspect. We therefore conclude petitioner has satisfied the "irreparable injury" requisite to obtain certiorari relief.
The appeals court has wide ranging discretion, and each case stands in its own four corners. O'Mara makes a good case involving public interest, and an appearance of shenanigans in securing the testimony of the state's star witness (which also infers that the testimony itself may be false or misleading).
The state might agree with O'Mara on the issue of deposing Crump. I think that's a slim probability, given the state's attitude toward providing discovery in general, and as to Witness 8 in particular, but the state will also be thinking about whether or not it wants to try this case twice, and whether it wants to argue that defendants in general can be denied fact discovery. On that second factor, assume there is a conviction, and an appeal on this very issue. Will the state want to argue that defendant doesn't have a right to depose a fact witness? If the state is uncomfortable with that argument on a prospective post-trial appeal, then it should be uncomfortable with that argument now, as well.