Author Topic: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery  (Read 18492 times)

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Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #105 on: May 02, 2013, 12:05:13 AM »
The options run in both directions.  Procedural prejudice can result in dismissal of the charge, exclusion of evidence, retrial, compensation for expenses and cost, and so on.

True, but my comment was in regard to:

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Nelson's remark about money was her following the legal standard in Richardson.  If there is a violation, there also has to be a procedural prejudice to the movant.  She asked O'Mara what was the procedural prejudice to Zimmerman, and O'Mara said that the delay interfered with his ability to prepare for trial.  To that, Nelson said "but you are asking for money," implying that O'Mara should be (maybe additionally) asking for a continuance in order to meet the Richardson standard for discovery violation / procedural prejudice.

That is what she did, but it was wrong. She was supposed to be conducting a Richardson hearing, and in a Richardson hearing procedural prejudice isn't limited to the subject of the motion that initiated it. O'Mara was perfectly correct, within the context of the Richardson hearing, to bring up the delay in preparation caused by the discovery violations.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #106 on: May 02, 2013, 12:40:15 AM »
That is what she did, but it was wrong. She was supposed to be conducting a Richardson hearing, and in a Richardson hearing procedural prejudice isn't limited to the subject of the motion that initiated it. O'Mara was perfectly correct, within the context of the Richardson hearing, to bring up the delay in preparation caused by the discovery violations.

But he didn't associate the delay with any prejudice to being ready by June 10, not in his motion, and not orally on April 30th.  At any rate, the only point of my previous remark was to expand on yours, not to disagree with it; and I don't disagree that O'Mara was perfectly correct in bringing up the claim that the state's stonewalling has complicated and delayed his preparation.  But on that point, O'Mara didn't quantify the delay in preparation to a point that would give Nelson a hook under Richardson.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #107 on: May 03, 2013, 01:11:53 PM »
Corrected Minutes from April 30 Hearing

Link at 18th Circuit website is broken.  Text below is from the docket website.

05/01/2013      CORR    CORRECTED MINUTES TO DELETE FREE TEXT STATEMENTS AS TO EXHIBIT "C' AS FOLLOWS:

"UN-REDACTED COPIES TO BE PROVIDED TO STATE AND DEFENSE ATTORNEYS. ORIGINAL TO BE SEALED AND REPLACED WITH REDACTED COPY".

CORRECTED MINUTES TO ADD FREE TEXT AS FOLLOWS: "COURT ORDERS UN-REDACTED PROPERTY SETTLEMENT AGREEMENT TO REMAIN SEALED. COURT FURTHER ORDERS UN-REDACTED COPY OF THE PROPERTY SETTLEMENT AGREEMENT TO BE PROVIDED TO THE STATE ATTORNEY'S OFFICE AND THE DEFENSE ATTORNEYS. REDACTED COPY IS TO BE UNSEALED. ATTORNEY O'MARA TO FILE WRITTEN ORDER FOR COURT'S SIGNATURE. ALL ELSE REMAINS THE SAME.


It appears that the HOA insurer name and exact amount paid for the agreement not sue will be produced to the public, unless what is referred to as the "unredacted" version was redacted by Crump before he filed it in the first place.

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #108 on: May 03, 2013, 01:41:12 PM »
Link at 18th Circuit website is broken.

You'd think they'd have that fixed by now. If anyone wants to look at or link to the documents, click on the link, and when you get the error page, edit the address in the address bar by removing the first backslash if it follows a forward slash, and then replacing the remaining backslashes with forward slashes.

E.g., change:
http://www.flcourts18.org/\PDF\Press_Releases\Corrected Minutes from April 30th Hearing.pdf

to:
http://www.flcourts18.org/PDF/Press_Releases/Corrected Minutes from April 30th Hearing.pdf

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #109 on: May 05, 2013, 07:52:34 PM »
IOW, if technically discoverable and compelled evidence is turned over at a reasonable time before trial, there is NO violation.  See Criminal Discovery in Florida, near the bottom at "Discovery Violations" (search for "Richardson").  Being tardy or recalcitrant or obstinate isn't a violation, unless it concludes with withholding of compelled discovery.

I'm doubtful that's true, and can't find the statements in the linked-to article to support it. Could you be more specific? I believe a discovery violation occurs whenever the rules of procedure for discovery are violated.

Offline cboldt

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #110 on: May 06, 2013, 03:09:49 AM »
I'm doubtful that's true, and can't find the statements in the linked-to article to support it. Could you be more specific? I believe a discovery violation occurs whenever the rules of procedure for discovery are violated.

Just from the premise each scenario begins with, the timing of disclosure of evidence relative to trial, which is obviously different from timing of disclosure relative to the rules.  I haven't read the Richardson case directly, but that is the case that sets the standards for a Richardson hearing.  It may be just as you say, and the "timing relative to trial" and "contents" inquiries both situate in the "procedural prejudice" pigeonhole; and a separate "timing relative to the rules" inquiry is found in the "violation" pigeonhole.

It appears to me that every time a party seeks a motion for specific discovery that results in disclosure of evidence, there has been a violation under the rules, as financial penalties are available.  But I can also image some or all of the courts finding no violation of discovery rules (but moving party is entitled to costs) even where it takes a motion to compel in order to obtain disclosure from a party who has no premise for objecting to disclosure.

Offline MJW

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Re: Apr. 30 Hearing on Sanctions, Immunity, HOA Settlement and Discovery
« Reply #111 on: May 09, 2013, 08:29:06 PM »
Just from the premise each scenario begins with, the timing of disclosure of evidence relative to trial, which is obviously different from timing of disclosure relative to the rules.  I haven't read the Richardson case directly, but that is the case that sets the standards for a Richardson hearing.  It may be just as you say, and the "timing relative to trial" and "contents" inquiries both situate in the "procedural prejudice" pigeonhole; and a separate "timing relative to the rules" inquiry is found in the "violation" pigeonhole.

I think the difference is between a discovery violation and a discovery violation which requires reversal.

The purpose of a Richardson hearing is to determine if there's been a discovery violation, and if so, how serious it is. The Richardson court approvingly quotes Ramirez v. State:

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The point is that if, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with Rule 1.220(e) CrPR, the court's discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state's violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

Once the court has considered all of the circumstances, it has authority to enter such order as it deems just. Rule 1.220(g) CrPR. However, in those cases where the court determines that the state's noncompliance with the rule has not prejudiced the ability of the defendant to properly prepare for trial, we deem it essential that the circumstances establishing non-prejudice to the defendant affirmatively appear in the record.

This is the basis for the Richardson hearings, and it seems to me to clearly indicate a discovery violation is a violation of a procedural discovery rule. The fact that the violation may be trivial does not make it a non-violation.

The reason it matters to me, is that I don't think the April 30th Richardson hearing was properly conducted. The state is required to turn over written statements by witnesses within 15 days of learning of them. W8's letter is clearly a written statement. In order to know if a discovery violation occurred, the court would need to know when BDLR learned about it. Yet Judge Nelson made no attempt to find out.

 

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