Author Topic: Writ of Certiorari (Crump Deposition)  (Read 32486 times)

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Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #120 on: April 10, 2013, 03:01:37 PM »
STATE v. MARTINEZ, 4 So.3d 712 (Fl 4th DCA, 2009) was discussed in that CTH thread where we met yesterday.  In Martinez, the DCA said that the seriousness of the error, alone, was sufficient justification for the DCA to be involved and uphold (if no error) or reverse (if error) the trial court.  The question of whether or not the error caused actual prejudice was not part of the calculus.

I just wanted to add a bit more discussion to justify my statement covering both upholding and reversing the trial court.  The Martinez case was brought up, ostensibly as an example where the DCA more or less summarily disposed of the appeal, and did not issue an Order to Show Cause.  In my mind, to better understand, I imagined a modified image of the Martinez case.  In the modified version, the prosecutor listens in to privileged communications and is caught.  Defendant moves to remove the prosecutor from the case, and the trial court denies the motion.  Now it is defendant who brings the appeal to the DCA.  What do think the result is?

I think DCA will issue a show cause order; or, if it doesn't, it will rule on the substance of the allegation, reversing the trial court rather than upholding it, because listening in to privileged communication of the opposing side is, without more, "a violation of a clearly established principle of law resulting in a miscarriage of justice."  At least according to he Martinez panel.

I'm undecided, not of a firm opinion one way or the other, on what the DCA will do with O'Mara's petition.  The alleged error isn't one of such a simple legal principle as respecting privilege.  It is, as you well understand, unknown evidence that may or may not play a significant role at trial; and if there is error in not obtaining that evidence, the error can be remedied on retrial.  I think the DCA will have to invoke something outside of that (simple denial of discovery) pattern, some sort of "exceptionalism," in order to justify reversing Nelson's order.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #121 on: April 24, 2013, 02:33:00 PM »
The state has filed a response.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #122 on: April 24, 2013, 02:58:14 PM »
The response consists of an argument that an interlocutory appeal shouldn't be granted because any errors can be corrected post-judgement, an minutely detailed recitation of the factual background, and an argument on the merits that rehashes what Nelson said in her opinion and what Blackwell said.

It makes what seems to me to be a transparently false claim that the post-judgement appellate court will know what Crump's testimony would have been because of his affidavit.

Offline FromBelow

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Re: Writ of Certiorari (Crump Deposition)
« Reply #123 on: April 24, 2013, 03:11:22 PM »
Page 15: "to discover Mr. Trump's work product." On my keyboard the C and T key aren't that close together.

Offline AJ

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Re: Writ of Certiorari (Crump Deposition)
« Reply #124 on: April 24, 2013, 03:36:08 PM »
Page 15: "to discover Mr. Trump's work product." On my keyboard the C and T key aren't that close together.

They call him "Crumb" and "Trump" a number of times throughout. I counted 3 instances on page 24 and 5 or 6 on page 25.

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #125 on: April 24, 2013, 03:50:40 PM »
That's almost certainly a spell-check error. People can get really complacent with substituting software suggestions without considering context.

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #126 on: April 24, 2013, 04:18:27 PM »
Quote from: Footnote 10
According to the recording provided by Petitioner, it appears that during a break Mr. Crump was simply asking Witness 8 to repeat her previously recorded testimony. It also does not appear Witness 8 was influenced by Mr. Crump's questioning; for example, when Mr. Crump mentioned that Trayvon Martin had gone to the store to get some snacks for his
little brother, Witness 8 did not repeat this information.

First, that does not even attempt to explain the edit marks (1..2..3...) and most importantly the reason she can infer that W8 wasn't influenced by the "snacks" suggestion was that both the question and answer were clearly recorded.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #127 on: April 24, 2013, 05:05:23 PM »
First, that does not even attempt to explain the edit marks (1..2..3...) and most importantly the reason she can infer that W8 wasn't influenced by the "snacks" suggestion was that both the question and answer were clearly recorded.

I missed reading the footnote. That seems like a softball down the middle of the plate. I'm sure the defense will gleefully point out that W8 changed Zimmerman's response from "What are you talking about?" to "What are you doing here?" after Crump suggested it.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #128 on: April 24, 2013, 05:11:01 PM »
Also, even accepting, for the sake of argument, that " Mr. Crump was simply asking Witness 8 to repeat her previously recorded testimony," W8 still made substantive statements that were not in the recorded portion, including the claim the Martin feared Zimmerman was going to beat him.

And even if she only repeated in different words what she said in the recorded portion, those would still be substantive statements.
« Last Edit: April 24, 2013, 05:13:37 PM by MJW »

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #129 on: April 24, 2013, 06:44:28 PM »
Also, even accepting, for the sake of argument, that " Mr. Crump was simply asking Witness 8 to repeat her previously recorded testimony," W8 still made substantive statements that were not in the recorded portion, including the claim the Martin feared Zimmerman was going to beat him.

And even if she only repeated in different words what she said in the recorded portion, those would still be substantive statements.

Yea, Bondi wastes no ink in defending Crump. Instead, she offers an alternative remedy for Zimmerman in deposing ABC or other participants.

Quote
Furthermore, Petitioner's second basis regarding the allegation that Mr. Crump’s affidavit was misleading as to his assertion that no matters of a substantive matter were addressed when the recorder was not activated“ is also insufficient. Petitioner has not established that a deposition of Mr. Crump is necessary and that such information cannot be obtained without undue hardship through other means; such as the subpoenaed ABC News recording or the other witnesses present during the interview, such as the victim's parents.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #130 on: April 24, 2013, 07:30:53 PM »
The response consists of an argument that an interlocutory appeal shouldn't be granted because any errors can be corrected post-judgement, an minutely detailed recitation of the factual background, and an argument on the merits that rehashes what Nelson said in her opinion and what Blackwell said.

It makes what seems to me to be a transparently false claim that the post-judgement appellate court will know what Crump's testimony would have been because of his affidavit.

I got a charge out of the "no controlling legal authority" argument, bottom of page 28 continuing to page 29.

Offline unitron

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Re: Writ of Certiorari (Crump Deposition)
« Reply #131 on: April 25, 2013, 09:57:09 AM »
Yea, Bondi wastes no ink in defending Crump. Instead, she offers an alternative remedy for Zimmerman in deposing ABC or other participants.

Deposing ABC?

How's that working out for them so far?

Offline JB

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Re: Writ of Certiorari (Crump Deposition)
« Reply #132 on: April 26, 2013, 12:22:05 AM »
Deposing ABC?

How's that working out for them so far?

Yes, "Deposing ABC" was apparent typo/ wrong.

But read the Cylinder quote of Bondi's actual statement again:

"Petitioner has not established that a deposition of Mr. Crump is necessary and that such information cannot be obtained without undue hardship through other means; such as the subpoenaed ABC News recording . . ."

BIG difference.  That WILL work out for them, and H/T to Pam "wasting-no-ink-on-Crump" Bondi for that, as  Cylinder aptly points out.

Offline unitron

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Re: Writ of Certiorari (Crump Deposition)
« Reply #133 on: April 26, 2013, 05:11:43 AM »
Okay, how's the subpoena to ABC working out?

(is there such a thing as a regular poena or a superpoena?

Or a double super secret poena   : - )

Offline nomatter_nevermind

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Re: Writ of Certiorari (Crump Deposition)
« Reply #134 on: April 26, 2013, 08:43:07 AM »
Okay, how's the subpoena to ABC working out?

PETITION FOR WRIT OF CERTIORARI, p. 21.

Quote
Out of the 25-minute clear recording ABC News took of the interview, ABC has only preserved the 5-minute clip referenced supra.


 

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