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State v. George Zimmerman (Pre-Trial) => Court Matters => Topic started by: Cylinder on April 04, 2013, 02:30:21 PM

Title: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 04, 2013, 02:30:21 PM
PETITION FOR WRIT OF CERTIORARI (http://www.gzdocs.com/documents/0413/petition.pdf)
 
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.

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 02:43:22 PM
Unfortunately, I think it will be denied based on Bill Kasper Const. Co., Inc. v. Morrison (http://scholar.google.com/scholar_case?case=11221825863523163186&hl=en&scisbd=2&as_sdt=5,45&sciodt=2,45), 93 So. 3d 1061 (Fla. 5th DCA 2012).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 04, 2013, 02:50:34 PM
Unfortunately, I think it will be denied based on Bill Kasper Const. Co., Inc. v. Morrison (http://scholar.google.com/scholar_case?case=11221825863523163186&hl=en&scisbd=2&as_sdt=5,45&sciodt=2,45), 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?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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 (http://scholar.google.com/scholar_case?case=14489608841255450757&hl=en&as_sdt=2,45), 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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 (http://scholar.google.com/scholar_case?case=14489608841255450757&hl=en&as_sdt=2,45), 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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 (http://scholar.google.com/scholar_case?case=14489608841255450757&hl=en&as_sdt=2,45), 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind 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?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim 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? 
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: vegas 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!  :) :) :)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 04, 2013, 05:04:39 PM
Yes.  ABC only preserved 5 minutes.  The rest was erased, trashed, whatever.

Just sent Seni T and Matt G a little tweet to tell them my opinion.  Disgusted with "Journalistic Integrity"
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim on April 04, 2013, 05:10:18 PM
Didn't Gutman interview DeeDee own his own on some other occasions(s)? 
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 04, 2013, 05:12:18 PM
Just sent Seni T and Matt G a little tweet to tell them my opinion.  Disgusted with "Journalistic Integrity"

My mental process automatically translates "Journalistic integrity" to "imbued with prevarication."  Nothing, and I mean NOTHING that the press puts out is an accurate portrayal of reality.  On the plus side, I think the public is getting close to the attitude the Russian people had toward Pravda and Izvestia.

I hope ABC loses millions of dollars in an upcoming defamation suit.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 04, 2013, 06:20:57 PM
My mental process automatically translates "Journalistic integrity" to "imbued with prevarication."  Nothing, and I mean NOTHING that the press puts out is an accurate portrayal of reality.  On the plus side, I think the public is getting close to the attitude the Russian people had toward Pravda and Izvestia.

I hope ABC loses millions of dollars in an upcoming defamation suit.

That may be true for the people following this case but what about the rest of it.   ??? :-\ :o
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 04, 2013, 07:14:10 PM
Yes.  ABC only preserved 5 minutes.  The rest was erased, trashed, whatever.

Are you quite certain, regardless of what they actually wrote, that the defense did not mean "only presented" rather than "only preserved"?

For them to have destroyed the rest, but published the part that shows Crump was inaccurate about the gaps containing nothing of importance, seems bizarre.

There's no way that does not raise the question of what would the rest of their recording reveal about how truthful Crump was or was not, and whether they destroyed the rest because of any pressure Crump brought to bear.

If the defense really thought ABC destroyed the rest of the recording, I don't see them not going off like an atom bomb about it.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 07:22:51 PM
If the defense really thought ABC destroyed the rest of the recording, I don't see them not going off like an atom bomb about it.

I agree. Until more information comes out, I think it's best not to jump to conclusions. If ABC did destroy most of the recording, they might be guilty of tampering with evidence. It's also somewhat difficult to believe every single copy of the recording would be destroyed. I hope some clarification is made soon. The whole ABC situation is very mysterious.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: vegas on April 04, 2013, 07:46:02 PM
"If ABC did destroy the recording, they might be quilty of tampering with evidence". That would be great.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cashmere on April 04, 2013, 07:59:02 PM
Hi - I apologize for asking something that is likely already answered somewhere on this board, but can someone help me understand why Judge Nelson has denied Crump's deposition?  I believe it has something to do with Crump representing the Martins who likely will bring civil suits against Zimmerman, but I just don't understand the details and why this may be a conflict for Crump.  Any assistance helping me understand more about our legal system is appreciated.  Thanks!
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 04, 2013, 09:40:58 PM
I have a new post up on the cert petition at the main site here (http://www.talkleft.com/story/2013/4/4/20850/61773).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 09:47:01 PM
Didn't Gutman interview DeeDee own his own on some other occasions(s)?

I believe so.

I don't think those interviews are mentioned in the Petition for Writ of Certiorari. There's no reason for them to be, unless there is evidence that Crump was present for at least one of them.

More on W-8 II thread. (http://forums.talkleft.com/index.php/topic,2369.msg108539.html#msg108539)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 09:57:18 PM
I have a new post up on the cert petition at the main site here (http://www.talkleft.com/story/2013/4/4/20850/61773/crimenews/Zimmerman-Files-Appeal-Over-Benjamin-Crump-s-Deposition).

The link doesn't work. I took the liberty of replacing it.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 10:15:44 PM
The statute for tampering with evidence is:

Quote
918.13 Tampering with or fabricating physical evidence.—
(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or
(b) Make, present, or use any record, document, or thing, knowing it to be false.
(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 10:23:21 PM
Are you quite certain, regardless of what they actually wrote, that the defense did not mean "only presented" rather than "only preserved"?

It could be an error of some kind, but this one doesn't seem likely.

I don't think it is exactly true. As I mentioned here, (http://forums.talkleft.com/index.php/topic,2369.msg108539.html#msg108539) on 3/20 ABC aired a variant of 'put his hoodie on' that is probably a missing piece of the Crump interview.

I don't see what relevance it would have. The context is of supporting the claim that Crump is the only available source of the information. If ABC has it, it can be subpoenaed. It doesn't matter if it's been aired or not.

Quote
If the defense really thought ABC destroyed the rest of the recording, I don't see them not going off like an atom bomb about it.

They are going after Crump at the moment. They may be lining up some ducks before going after ABC.

The whole ABC situation is very mysterious.

If the recordings have been destroyed, including the Gutman interviews, that might explain why there still has been no hearing on the matter. Jeralyn mentioned that in the recently linked blog post.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 04, 2013, 10:44:41 PM
"It could be an error of some kind, but this one doesn't seem likely. "

When was the last time you heard of a news organization doing something like this?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 10:53:36 PM
If the recordings have been destroyed, including the Gutman interviews, that might explain why there still has been no hearing on the matter. Jeralyn mentioned that in the recently linked blog post.

If I were the defense, and ABC destroyed evidence, I'd be doing everything I could to force them to admit in in the court record.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 11:10:01 PM
I'd also use the destruction of evidence as a basis for demanding a deposition of Gutman.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 11:11:14 PM
When was the last time you heard of a news organization doing something like this?

The way that Gutman, Crump, and W-8 have intertwined, is like nothing I have seen before. To the best of my knowledge, we have been in uncharted waters ever since that bizarre interview on 3/19/12.

ETA: If someone at ABC deliberately destroyed evidence, I would think there was something damning there. Maybe evidence of a more serious felony?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 04, 2013, 11:13:55 PM
The link doesn't work. I took the liberty of replacing it.

Thanks very much. I had put quote marks before and after the url which you do on the blog but not in forums.  I fixed the link in my message too.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 04, 2013, 11:15:07 PM
I'd also use the destruction of evidence as a basis for demanding a deposition of Gutman.

I should add that this is hypothetical. I'm not yet convinced ABC destroyed any evidence, though the motion does make it sound like they did.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 04, 2013, 11:23:05 PM
I don't think ABC did anything wrong by not preserving it. There were no charges filed and no case pending when the interview conducted on March 19. There is no obligation for the media to  to keep or turn over  statements of people it interviews it connection with an event that I can think of.

But if they didn't preserve it, it was erased, which is the same as destroyed.

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 11:27:22 PM
There were no charges filed and no case pending when the interview conducted on March 19.

There was an investigation.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 11:31:09 PM
I'd also use the destruction of evidence as a basis for demanding a deposition of Gutman.

Gutman isn't on the defense's most recent Witness List. (http://www.gzdocs.com/documents/0313/witness_list.pdf)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 04, 2013, 11:34:13 PM
I don't think ABC did anything wrong by not preserving it. There were no charges filed and no case pending when the interview conducted on March 19. There is no obligation for the media to  to keep or turn over  statements of people it interviews it connection with an event that I can think of.

But if they didn't preserve it, it was erased, which is the same as destroyed.

But why not destroy all of it?  They saved a certain kind of damning piece of "coaching" and unceremoniously put it into their videos section.  I haven't checked since it was first discovered so I don't know that the small segment hasn't been removed by now.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 04, 2013, 11:49:44 PM
I haven't checked since it was first discovered so I don't know that the small segment hasn't been removed by now.

It's still there.

It wouldn't matter if they took it down. It's on YouTube. (http://www.youtube.com/watch?feature=player_embedded&v=iepkwi4nt_E)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 05, 2013, 12:12:13 AM
I have it saved on my computer, along with ABC's other news reports on Witness 8 and many Crump interviews. I also have the transcripts many obtained of them from Lexis.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 05, 2013, 12:34:22 AM
I have it saved on my computer, along with ABC's other news reports on Witness 8 and many Crump interviews. I also have the transcripts many obtained of them from Lexis.

I love you...  you are the bestest ever!  Can you share some transcripts?  Have you noticed I have my hand out.  A lot.   :-[
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 01:57:37 AM
I don't think ABC did anything wrong by not preserving it. There were no charges filed and no case pending when the interview conducted on March 19. There is no obligation for the media to  to keep or turn over  statements of people it interviews it connection with an event that I can think of.

But if they didn't preserve it, it was erased, which is the same as destroyed.

I think "destroyed" fits if ABC purposely erased evidence. Erasing destroys the evidence.

If ABC did erase the recording, we don't know when they did, so we can't know whether it was before the the charges were filed or the case was pending. In any event, 918.13 applies when "a criminal trial or proceeding or an investigation ... is pending or is about to be instituted." There's no question an investigation was pending, and given Gutman's breathless reporting, he can hardly deny he was aware that the interview was potential evidence.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 05, 2013, 03:25:20 AM
Here's the 5TH DCA's eDocket for George Zimmerman (http://199.242.69.70/pls/ds/ds_cases_person?psReportStyle=Display&psCourt=5&psSearchType=&psHow=contains&psRole=party&pnPersonId=134432&psButton=Submit). The latest filing has yet to appear.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 05, 2013, 06:09:05 AM
As I opine elsewhere, for an outfit like ABC, nowadays tape is cheap and so is hard drive space, and what they had was better than evidence, it was something no other network or news outfit had.

Either this is misunderstanding, or they were in some serious legal danger if it drove them to try to make their recording as if it had never happened, and that would only further raise the quesion of why they quietly posted the segment they did.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 06:38:43 AM
I think "destroyed" fits if ABC purposely erased evidence. Erasing destroys the evidence.

If ABC did erase the recording, we don't know when they did, so we can't know whether it was before the the charges were filed or the case was pending. In any event, 918.13 applies when "a criminal trial or proceeding or an investigation ... is pending or is about to be instituted." There's no question an investigation was pending, and given Gutman's breathless reporting, he can hardly deny he was aware that the interview was potential evidence.

O'Mara moved for a subpoena to ABC, with that motion being presented on 18 January 2013.  I haven't yet searched for a Court order on that motion, but my intuition is that O'Mara's assertion that ABC only preserved 5 minutes comes from formal reply from ABC.  They can't produce what they don't have.

How much legal trouble to ABC flows from that is yet to be seen.  The presumption woks against ABC, more particularly, the presumption is that the missing information is exculpatory to Zimmerman, in some fashion.  For example, by casting doubt on Witness 8's credibility.  If ABC deliberately destroyed the evidence, it stands to reason they are in less trouble (even if found guilty of destruction of evidence) with the evidence missing, than they would be if the evidence was produced.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 05, 2013, 06:48:07 AM
Purely speculating, ABC has no real interest in keeping anything exculpatory and a PR nightmare if it ever sees light. To one demographic (in the marketing sense) they would appear to have been hiding news to fit a narrative. To another they would appear to be cooperating with Zimmerman's defense.

I'll defend ABC by pointing out that they aired this bit of the conversation (back-room deal to avoid deposition?) and they also aired the injury photo at a time Zimmerman was being excoriated in the media.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 05, 2013, 06:51:00 AM
Two questions:

1. What are the possible dispositions? Can the District Court punt and not consider the appeal at all?

2. Is it sur-she-are-ee or sur-she-are-eye?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 06:56:35 AM
Two questions:

1. What are the possible dispositions? Can the District Court punt and not consider the appeal at all?

2. Is it sur-she-are-ee or sur-she-are-eye?

They have to consider it and rule on it.  They can reject it, saying the time to bring this type of appeal is after the trial, or they can reject it for other reasons.  Or, they can agree with petitioner, and order the trial court to withdraw its order precluding O'Mara from deposing Crump, and replace it with an order that Crump sit for deposition.

Certiorari - I pronounce it SUR-she-oh-RAHR-ee (long 'e' at the end), and I've heard others pronounce it SUR-she-OH-ree (also long 'e' at the end).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 07:41:47 AM
O'Mara moved for a subpoena to ABC, with that motion being presented on 18 January 2013.  I haven't yet searched for a Court order on that motion ...

ow I've searched for it, and can't find a court order in response to O'Mara's "Motion for Subpoena ... to American Broadcasting Company (ABC) ...".  There is a notation at 11 February 2013 at the www.flcourts18.org site (http://www.flcourts18.org/presspublic.html), for an Order Granting Issuance of a Subpoena, but the link renders a 404-Not Found error.  I've also searched for news reports (using google) respecting that Motion, and haven't found any information, one way or the other.  The absence of news leads me to think that Judge Nelson has not yet ruled on the motion, because a ruling would likely result in legal action in the form of ABC objection and so forth, that would appear in the docket.  Well, let me condition that, if she rules unfavorably to the defense, ABC would have no reason to get involved, so either Nelson ruled against O'Mara, or hasn't ruled.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 05, 2013, 09:52:32 AM
5D13-1233 GEORGE ZIMMERMAN  vs.  STATE OF FLORIDA (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Evil Chinchilla on April 05, 2013, 12:04:25 PM
Certiorari - I pronounce it SUR-she-oh-RAHR-ee (long 'e' at the end), and I've heard others pronounce it SUR-she-OH-ree (also long 'e' at the end).

So I guess "Certy O'Rarey" was just that colleen they were talking about that had a wee drop too much on St. Paddy's Day last.  ;)

And the most important thing to remember when pondering the mysterious actions of ABC is that ABC is owned by Disney, and Disney has a HUGE financial stake just a stone's throw from Sanford in Orlando.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 05, 2013, 12:13:51 PM
It would be very clever to give Crump the impression there isn't any more of ABC's version of the interview available prior to his deposition. He might end up being caught in a number of lies if more of ABC's version happened to became available after and contradicts what he said.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 05, 2013, 12:23:41 PM
It would be very clever to give Crump the impression there isn't any more of ABC's version of the interview available prior to his deposition. He might end up being caught in a number of lies if more of ABC's version happened to became available after and contradicts what he said.

I don't think this is happening.  The world isn't that perfect.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 05, 2013, 12:25:49 PM
I don't think this is happening.  The world isn't that perfect.
Oh, probably just wishful thinking on my part. I just hate to think Crump may walk away from this without a scratch.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 01:33:35 PM
This is probably off-topic, but I don't want to start a separate thread for such a non-specific item. There's a new entry in the detailed case information:

04/04/2013    NOCI    NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

I hope we find out what that's about soon. There has been confidential information in other filings without a special notice. The NOCI code isn't used elsewhere, but it seems to me they kind of make them up as they go along. I'm pretty sure I've seen identically labelled entries with differnt codes.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 01:49:32 PM
I'm pretty sure I've seen identically labelled entries with different codes.

E.g.,
12/13/2012    SUDI    STATE'S 11TH SUPPLEMENTAL DISCOVERY
12/11/2012    SUPP    STATE'S 10TH SUPPLEMENTAL DISCOVERY
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 05, 2013, 02:06:30 PM
10th Supplemental: Early drafts of Serino's reports.

11th Supplemental: Audio of Crump/W-8 interview on 3/19/12.

Maybe it's paper documents vs. audio recordings that makes the difference.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 02:10:56 PM
04/04/2013    NOCI    NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

I'm puzzled by that too, have been since seeing it yesterday.  We don't know who filed it, if defense, the state, or a third party.  I figure it isn't the usual hiding of [some] witness names and addresses, because the court has set up and is using a protocol to accommodate that.  I thought it might be the filing of the Witness 8 video deposition; I don't recall if the court ordered it to be filed, or what the definite meaning of "kept under seal" (or whatever the court's order was) is.  It seems odd that any deposition would be filed, as doing so creates a possibility of motion by the press, under Florida Sunshine Law, to make public what has been filed with the court.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 02:38:52 PM
Another interesting case on interlocutory appeal of discovery denial:

Baldwin v. SHANDS TEACHING HOSP. & CLINICS (http://scholar.google.com/scholar_case?case=3244657594783206689&hl=en&as_sdt=2,45), 45 So. 3d 118 (Fla. 1st DCA 2010).

It contains the possibly helpful comment:

Quote
We also find significant, on the question of jurisdiction, that petitioners claim the denial of a constitutional right guaranteed to them under Amendment 7. "[C]ertiorari is an appropriate remedy where constitutional rights are deprived or delayed during the pendency of a legal proceeding." Williams v. Spears, 719 So.2d 1236, 1239 (Fla. 1st DCA 1998).

Denying a defendant access to the testimony of a witness is, of course, contrary to the 6th Amendment.

I still believe the odds are against the 5th DCA allowing the appeal. I think in the petition the defense should have tried to distinguish Zimmerman's situation from Bill Kasper Const. Co., Inc. v. Morrison rather than waiting for the state to bring it up.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 02:57:16 PM
I still believe the odds are against the 5th DCA allowing the appeal. I think in the petition the defense should have tried to distinguish Zimmerman's situation from Bill Kasper Const. Co., Inc. v. Morrison rather than waiting for the state to bring it up.

Assuming Crump refers to authority that is opposing the petition, O'Mara can respond to the argument raised by Crump.  I don't recall any remarks by the state, taking a position on defense being afforded the right to depose Crump, so I'm not sure the state would even respond.

Thanks for the many case citations, including the most recent.  I don't have much faith that the court system does the right thing when the case is a political one.  But, the courts of appeal are one step removed from public pressure, compared with the trial court, and I would not be surprised to find that Judge Nelson is deliberately tossing issues up for appeal.  I've generally figured she'd do so when called on to render an opinion as to 776.032 immunity, finding that the evidence doesn't admit a decision, and then tossing it to the jury.

Talk about messy, the court will seat a jury, O'Mara, if he doesn't get a favorable decision on an immunity motion, would appeal.  What to do with the jury?  Have them wait the time it takes the DCA to review the lower court's order?  Heck, even waiting for the lower court to compose an opinion and order is a delay between case presentation and charging the jury.

Anyway, back to the subject you raised, I think the DCA will order Nelson to allow Crump to be deposed.  It's a low risk decision, in that it doesn't represent any particular direction in favor of or against Zimmerman.  It's just allowing defendant access to information that may be relevant for trial.  Crump himself expressed, in open court, that he wanted to be helpful, that he had nothing to hide, and similar sentiment.  Seems that everybody's stated principles are in perfect harmony - get the truth out, or as much as is humanly possible, to facilitate reaching a just conclusion.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 03:08:09 PM
Denying a defendant access to the testimony of a witness is, of course, contrary to the 6th Amendment.

Oh, I meant to remark in my previous, but forgot.  On skimming through an exchange between Nelson and West, I notice Nelson being very focused on the question of "relevancy."  Crump is not a witness to the event, and his take of Witness 8's remarks is "the jury's job," not his.

Anyway, not to argue the point, just to say that Nelson was focused on the relevance of Crump's observations, to the question of whether or not Zimmerman's use of force was justified, vs. Zimmerman being guilty of murder.  Generally, there are many other angles of relevance.  Relevance isn't a matter that pertains only to the ultimate question, it can also pertain to any number of included sub-issues.  I don't think West "connected" with Nelson's thought process, to make that simple point, and she is apt to think/believe that Crump simply doesn't possess any information that is relevant.

THis is sort of related to your observation about the 6th amendment and witnesses.  What is Crump a witness to?  Not to say he isn't a relevant witness - he is, I think, to the credibility of Witness 8 - just to say that another way to view the thought I'm trying to get out is that Nelson may view Crump as "not a witness" because he has no first hand knowledge of the incident, or of Martin, or of Zimmerman.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 03:14:34 PM
Assuming Crump refers to authority that is opposing the petition, O'Mara can respond to the argument raised by Crump.  I don't recall any remarks by the state, taking a position on defense being afforded the right to depose Crump, so I'm not sure the state would even respond.

I don't know that Crump has any right to respond, since the issue is between the defense and the court, and the state represents the other side, not Crump. In the arguments over the deposition, BDLR basically said, "What he said," endorsing Crump's lawyer's argument and not adding much of his own.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 03:25:30 PM
Oh, I meant to remark in my previous, but forgot.  On skimming through an exchange between Nelson and West, I notice Nelson being very focused on the question of "relevancy."  Crump is not a witness to the event, and his take of Witness 8's remarks is "the jury's job," not his.

I was actually thinking about the same thing -- the question of to what degree the DCA will deem Crump a "material witness." Many of the interlocutory appeal decisions seem to focus on the issue of excluding a material witness. The defense needs to emphasize the fact that Crump's interactions with W8 went a long way beyond passively listening to her tell her story.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 05, 2013, 03:25:44 PM
I don't know that Crump has any right to respond, since the issue is between the defense and the court, and the state represents the other side, not Crump. In the arguments over the deposition, BDLR basically said, "What he said," endorsing Crump's lawyer's argument and not adding much of his own.

It was Crump, and not the state, that objected to the deposition.  The court heard Crump's argument.  Sure, the state can adopt or agree with Crump's argument; but it wasn't the state's argument in the first place.

If the argument was over production by the press, the press would be the party to argue its case of privilege.  I think the same holds here.  It is Crump asserting privilege on various grounds.  The argument is entirely his to make.  The trial court erred, says petitioner, by siding with the person who is asserting privilege to avoid being deposed.

I'd have to look at my collection of documents, and elsewhere, but I don't recall the state filing ANY argument or even "we agree" paper, in the exchanges that relate to Crump being deposed.  I think all the written submission indicates a battle between Crump and the defendant.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 03:28:24 PM
If the argument was over production by the press, the press would be the party to argue its case of privilege.  I think the same holds here.  It is Crump asserting privilege on various grounds.  The argument is entirely his to make.

That's a good point. You're probably right.

The "What he said" comment was made in the oral arguments, not in a written document.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 07:21:11 PM
Unfortunately, the opinion in Eutsay v. State (http://scholar.google.com/scholar_case?case=9059062231580367501&hl=en&as_sdt=2,45), 103 So. 3d 181 (Fla. 1st DCA 2012) is similar to what I expect in the Zimmerman appeal:

Quote
In some civil cases, this Court has found irreparable harm based, at least in part, on the lack of a practical way to determine after the judgment how the denial of certain discovery materials would have affected the outcome of the proceedings. See, e.g., Queler v. Receivership of Cumberland Cas. & Sur. Co., 1 So. 3d 1140, 1140 (Fla. 1st DCA 2009); Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So. 3d 118, 122-23 (Fla. 1st DCA 2010). However, this consideration is less compelling in a criminal case, given the differing standards between civil and criminal cases concerning the burden to show harmful error. In a civil case, the burden is on the appellant to establish a reasonable probability "that a result more favorable to the appellant would have been reached if the error had not been committed." Webster v. Body Dynamics, Inc., 27 So. 3d 805, 809 (Fla. 1st DCA 2010). In contrast, in an appeal from a criminal conviction, once the appellant exposes a preserved error, the State has the burden to establish beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Under this test, the lack of a practical way to determine the effect of the denied discovery would increase the likelihood of reversal.

In truth, as anyone whose read many appellate opinions in criminal cases knows, is that the "harmless error" standard is regularly used to ignore errors which put the defense at a disadvantage during trial.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 05, 2013, 07:25:33 PM
Oh, probably just wishful thinking on my part. I just hate to think Crump may walk away from this without a scratch.

Considering today's insurance payout news, I'd say he's walking away with lots of scratch.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 05, 2013, 07:39:29 PM
The case history (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=5689&psCourt=1&psSearchType=) for Eutsay v. State (http://scholar.google.com/scholar_case?case=9059062231580367501&hl=en&as_sdt=2,45) shows the petition was filed Oct. 21, 2011, and dismissed May 24, 2012. I don't know if that's typical or if the trial was continued during the delay.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 05, 2013, 07:47:39 PM
The way that Gutman, Crump, and W-8 have intertwined, is like nothing I have seen before. To the best of my knowledge, we have been in uncharted waters ever since that bizarre interview on 3/19/12.

ETA: If someone at ABC deliberately destroyed evidence, I would think there was something damning there. Maybe evidence of a more serious felony?

If there's anything damning in there, that makes it extra news-worthy, and therefore more valuable to ABC, since no other network or news outfit has it.

Unless it is ABC itself that the evidence damns.

But I can't think of anything they'd think profitable to do that they'd be stupid enough to do.

And then stupid enough to try to cover up.

Although by now, if this was a preserve/present typo, you'd think ABC would have said something to tamp down the speculation that they tampered with evidence.

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 05, 2013, 07:55:36 PM
... What is Crump a witness to?...

Well, apparently he's a witness to a massive coverup conspiracy between Lee and Wolfinger.

In fact, so far he seems to be the only witness--although he hasn't actually produced any evidence yet--but he's got plenty of people out there convinced that it happened.

And some of those people didn't even see Elvis working down at the Tastee-Freeze last night.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 05, 2013, 08:07:05 PM
If there's anything damning in there, that makes it extra news-worthy, and therefore more valuable to ABC, since no other network or news outfit has it.

Unless it is ABC itself that the evidence damns.

I thought it was clear that I meant damning to whoever saw to it that the recordings were not preserved. That wouldn't have to be 'ABC', by which I take it you mean the top brass.

There was a suggestion upthread regarding ABC's incentives.

And the most important thing to remember when pondering the mysterious actions of ABC is that ABC is owned by Disney, and Disney has a HUGE financial stake just a stone's throw from Sanford in Orlando.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 06, 2013, 03:50:01 AM
Unfortunately, the opinion in Eutsay v. State (http://scholar.google.com/scholar_case?case=9059062231580367501&hl=en&as_sdt=2,45), 103 So. 3d 181 (Fla. 1st DCA 2012) is similar to what I expect in the Zimmerman appeal:

In truth, as anyone whose read many appellate opinions in criminal cases knows, is that the "harmless error" standard is regularly used to ignore errors which put the defense at a disadvantage during trial.

Assuming the opinion filed a few months later, on a motion for clarification, contains similar logic, the opinion gets to the point I was trying to make earlier, relating to "final judgment."  If the appellate court sees no harm in retrial, then it is inclined to reject a defendant's petition, pending the outcome of trial.  The appellate court can remedy the error below, with a new trial.  From Eutsay:

When considering whether a particular type of harm may be remedied by appeal, we bear in mind that the burden of enduring a trial that may ultimately have to be repeated is not the type of harm certiorari exists to prevent.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 06, 2013, 04:18:39 AM
04/04/2013    NOCI    NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

Might actually be close to being on-topic.  I think this is a filing by Crump, of the settlement agreement between the Martins and the HOA and HOA insurer.  Had no reason to guess that before the recent news came out about the months-old settlement, but the timing, circumstances, and title of the filing fit perfectly.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 06, 2013, 05:04:24 AM
Might actually be close to being on-topic.  I think this is a filing by Crump, of the settlement agreement between the Martins and the HOA and HOA insurer.  Had no reason to guess that before the recent news came out about the months-old settlement, but the timing, circumstances, and title of the filing fit perfectly.

But why would any of that have anything to do with the criminal case as far as the criminal court is concerned?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: AJ on April 06, 2013, 05:21:29 AM
But why would any of that have anything to do with the criminal case as far as the criminal court is concerned?

I've been thinking about this question and something I've come up with (though quite possibly incorrectly) is maybe it's going to be used in response to the petition? Would Judge Nelson require it be filed with her in order to point to it and say "See, he's opposing counsel because he's going to be filing suit soon!" .. as odd as it seems that such a leap in logic would be orchestrated by a judge?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 06, 2013, 05:42:31 AM
But why would any of that have anything to do with the criminal case as far as the criminal court is concerned?

I don't think it has anything to do with the criminal case.  It bolsters the contention that Crump is opposing counsel, which is a factor in deciding whether or not the law compels him to disclose what he knows about the criminal trail - in this case, to disclose what he knows about Witness 8's appearance on the prosecution's witness list.

Even on that point, I think it is an unnecessary filing, because his proffer that he represents the Martins and intends to sue Zimmerman is sufficient to make that point.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 06, 2013, 02:43:04 PM
From Zimmerman's Criminal Case Docket (http://www.seminoleclerk.org/CriminalDocket/case_detail.jsp?CaseNo=592012CF001083A) ...

04/05/2013    LETT    LETTER FROM THE CLERK'S OFFICE TO ATTORNEY BENJAMIN CRUMP REGARDING NOTICE OF
04/05/2013    LETT    CONFIDENTIAL INFORMATION

So, I guess that firms up the finding that the Confidential filing of April 4 originated with Crump.   I suspect the letter is an invitation to withdraw the filing (as it is irrelevant to the case), or, in the alternative, take 10 days to explain why it should not become a matter of public record.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 06, 2013, 06:32:27 PM
So, I guess that firms up the finding that the Confidential filing of April 4 originated with Crump.   I suspect the letter is an invitation to withdraw the filing (as it is irrelevant to the case), or, in the alternative, take 10 days to explain why it should not become a matter of public record.

I hope we get a look at the clerk's letter soon.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 06, 2013, 08:46:22 PM
I hope we get a look at the clerk's letter soon.
I want to read that 5 pager...even with the redactions!  The letter is icing...Begged Rene...nothing...Seni T...nothing.  Jeff W is next in line.  My cyber knees are getting worn out.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 07, 2013, 03:55:25 AM
I want to read that 5 pager...even with the redactions!  The letter is icing...Begged Rene...nothing...Seni T...nothing.  Jeff W is next in line.  My cyber knees are getting worn out.

It's not cheap, but you can hire a "runner" to go to the Courthouse and obtain copies of whatever is filed.  From what I read in the news, I think the 5 pager is no longer provided on (pay for copies) request.  The clerk of the court should have a list of local runners.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 07, 2013, 04:14:04 AM
It's not cheap, but you can hire a "runner" to go to the Courthouse and obtain copies of whatever is filed.  From what I read in the news, I think the 5 pager is no longer provided on (pay for copies) request.  The clerk of the court should have a list of local runners.

HA!  Can someone run from San Antonio for me?  Ooooh.  Maybe Aghast would do it.  That poster lives in Sanford.  Nevermind...you said expensive.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 07, 2013, 05:38:41 AM
HA!  Can someone run from San Antonio for me?  Ooooh.  Maybe Aghast would do it.  That poster lives in Sanford.  Nevermind...you said expensive.

When I hired a runner in DC, to get papers filed at a federal appeals court (Libby case - I don't trust the press to make anything that resembles a complete and accurate report), it cost fifty dollars.  If you know somebody local, they might do it out of their own curiosity.

The only thing in the settlement agreement that I'm curious about is the date it was entered into.  I'm curious about when the press knew there was a settlement.  From the Orlando Sentinel report, I think the press knew in February, when it conducted some unspecified interview with O'Mara.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 07, 2013, 06:01:46 AM
When I hired a runner in DC, to get papers filed at a federal appeals court (Libby case - I don't trust the press to make anything that resembles a complete and accurate report), it cost fifty dollars.  If you know somebody local, they might do it out of their own curiosity.

The only thing in the settlement agreement that I'm curious about is the date it was entered into.  I'm curious about when the press knew there was a settlement.  From the Orlando Sentinel report, I think the press knew in February, when it conducted some unspecified interview with O'Mara.

That is what I gathered from that too.  Maybe lobbed a softball question after the 2/5 (I suck at dates) hearing?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 08, 2013, 09:32:40 AM
I hope we get a look at the clerk's letter soon.

Letter of Seminole County Clerk of Court (http://flcourts18.org/PDF/Press_Releases/Letter%20from%20Seminole%20County%20Clerk%20of%20Court.pdf)

Quote
Pursuant to the Judicial Rules of Administration 2.420(d)(2), we are notifying you that we do not agree that the information contained within this document is subject to confidentiality as contained within subdivision (d)(1)(A) or (d)(1)(B) of this rule. We will maintain this information as confidential for a period of ten days but it will become public information after that time unless you file the appropriate motion pursuant to subdivision (d)(3).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 09:45:54 AM
I hope we get a look at the clerk's letter soon.

It's up at the Court's "Document" website.  April 5, 2013 Letter of Seminole County Clerk of Court (http://www.flcourts18.org/PDF/Press_Releases/Letter%20from%20Seminole%20County%20Clerk%20of%20Court.pdf)

It advised Crump that the court does not agree that the document is subject to confidentiality, and gives him 10 days to file a motion pursuant to Judicial Rules of Administration 2.420(d)(3).

RULE 2.420.  PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS

(d) Procedures for Determining Confidentiality of Court Records.
(3) Any person filing a document with the court shall ascertain whether any information contained within the document may be confidential under subdivision (c) of this rule notwithstanding that such information is not itemized at subdivision (d)(1) of this rule. A person filing information that he or she believes in good faith to be confidential but that is not described in subdivision (d)(1) of this rule shall request that the information be maintained as confidential by filing a "Motion to Determine Confidentiality of Court Records" under the procedures set forth in subdivision (e), (f), or (g), unless (A) the person filing the information is the only individual whose confidential information is included in the document to be filed or is the attorney representing all such individuals; and (B) a knowing waiver of the confidential status of that information is intended by the person filing the information. Any interested person may request that information within a court file be maintained as confidential by filing a motion as  provided in subdivision (e), (f), or (g).


2.420(e), (f) and (g) describe the handling of the motion, that is, the legal procedure for making argument and for the court to reach a finding.  Most everything is conducted in secret, but there will be docket entries that show activity while not disclosing the confidential information.  There are time limits for making decisions, but I don't think Florida courts adhere to any time limit rule that is not embodied in a court order; or that is useful for an appellate court to use to reach the desired outcome in a case at hand.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 10:29:24 AM
It advised Crump that the court does not agree that the document is subject to confidentiality, and gives him 10 days to file a motion pursuant to Judicial Rules of Administration 2.420(d)(3).

If I understand the process (and there's a chance I don't), the clerk's initial determination as to confidentiality is limited to looking at certain limited grounds, which are listed at (d)(1).  The list at (d)(1)(A) includes items listed at (c)(1) through (c)(6).  There are other areas of court-respected confidentiality, most listed at parts (c)(7) through (c)(9), but the clerk is not empowered to rule on assertions of confidentiality not listed at part (d)(1), that is for the judge.

Quick aside, (c)(9)(A)(ii) allows for protection of a trade secret.  A private settlement is in the nature of a business deal, where the parties agree to secrecy.  Trade secrets aren't only "how to," they can also be customer lists, and other business deals.  I'm not sure how Crump (and the HOA insurer) will pigeonhole the information within the rules framework, and that doesn't really matter.  What matters is that the clerk did not find the information to be protected under (d)(1).

Anyway, this information being outside of (d)(1), we get to the process to get the issue before the judge, which is the "Motion to Determine Confidentiality of Court Records" (this title must be used in the filing, if the rules are followed).  The parties that want to keep this confidential have 10 days within which to file this motion, and the motion must be substantive both legally, and as applied to the information alleged to be confidential.

An interesting question, to me, is who are the "interested parties" for purposes of this motion.  Is that just the HOA, Crump, and Sybrina?  Or do O'Mara and the state have a part in this sideshow?  I don't know.  The simpler situation is only the HOA, insurer, Crump, and Sybrina are involved in the sideshow, and all of them will agree that the information they promised to keep secret, should be kept secret.

I bet the HOA, insurer, and Judge Nelson are pissed.  This is a totally unnecessary sideshow in the criminal case.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 10:47:33 AM
Separately, it appears the clerk erred by making 5 pages of this filing public, albeit for a short time.  The court has some 'splainin' to do.

Seminole clerk: I'll unseal settlement with Trayvon's parents (http://www.orlandosentinel.com/news/local/breakingnews/os-trayvon-hoa-settlement-not-confidential-20130408,0,5675871.story) -  Rene Stutzman, Orlando Sentinel - 11:02 a.m. EDT, April 8, 2013

Part of the 12-page settlement popped into public view for a few minutes Friday. The day before, Crump had made it part of the official court record ... Crump had instructed the clerk's office to seal the settlement, but for a few minutes Friday morning, the first five pages were available for public review. The clerk's office then blacked out all but the first page, which is a cover sheet filed by Crump.

After further consideration, however, Morse decided that none of it should be kept secret, so she wrote Crump, telling him she would unseal it in 10 days.


Fairly misleading presentation by Stutzman, as to the clerk's actions.  When material is filed under a "Notice of Confidential Information within Court Filing," the clerk does not have the authority to make it public, until after the rules-based time periods (5 days to give notice to the filter, of disagreement; 10 days for the filer to move for confidentiality; plus time for the court process).  All Stutzman would have to do is look at and understand the rule cited by the clerk.

The clerk of court shall review filings identified by filers as containing confidential information to determine whether the purported confidential information is facially subject to confidentiality under the identified provision in subdivision (d)(1)(B). If the clerk determines that filed information is not subject to confidentiality under the identified provision, the clerk shall notify the person who filed the document in writing within 5 days of the filing and thereafter shall maintain the information as confidential for 10 days from the day such notice is served. The information shall not be held as confidential for more than 10 days, unless the filer has filed a motion pursuant to subdivision (d)(3).


So, how often does this clerk handle items that are filed under a Notice of Confidential Information within Court Filing?  How many such items are filed and kept confidential for at least those 10 days?  Why was this one made public?  Who knew it was there and asked for it?  Who found out it was asked for, and put the kibosh on providing a complete copy to the Orlando Sentinel?

I think this inadvertent release deserves an inquest of its own.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim on April 08, 2013, 10:54:28 AM
The settlement with the RATL HOA has no close connection with the Writ of Certiorari.  I think the recent posts about it belong on the CIVIL LAW SUITS thread (under Other Case-Related Topics) or maybe a brand new one.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 08, 2013, 12:20:11 PM
Ricky's right. If you have a comment in this thread about the civil lawsuit, please repost in the correct thread so I can delete them. I will delete any that are still up in this thread tonight.

This thread is for the writ of cert petition only.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 12:22:56 PM
Ricky's right. If you have a comment in this thread about the civil lawsuit, please repost in the correct thread so I can delete them. I will delete any that are still up in this thread tonight.

This thread is for the writ of cert petition only.

The item being discussed was filed in the criminal lawsuit.  I'll copy the remarks I made here (for my own reference), but I have no intention of reposting them in the civil lawsuit thread.  You can move them wherever you want.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 12:36:42 PM
As cboldt points out, the document was filed with the criminal court, and given the timing of the filing and the content, seems to have been filed in response to  the motion for certiorari -- presumably in an attempt to make it part of the lower court record. Though any discussion of the details of settlement belong in the civil law suit thread, the circumstances of the filing belong here.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim on April 08, 2013, 12:55:58 PM
The timing could be just a coincidence, MJW; you are just speculating.  Is anybody disputing that Crump is representing the parents in civil actions?  The WoC is all about whether Crump should be deposed because he has important evidence concerning Witness #8, and this overrides any privilege he might have because he represents the parents,
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 01:10:43 PM
The timing could be just a coincidence, MJW; you are just speculating.  Is anybody disputing that Crump is representing the parents in civil actions?  The WoC is all about whether Crump should be deposed because he has important evidence concerning Witness #8, and this overrides any privilege he might have because he represents the parents,

If it isn't connected with the petition for cert, why did Crump file a settlement agreement with a court that has already ruled he can't be deposed?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 08, 2013, 01:25:21 PM
If it isn't connected with the petition for cert, why did Crump file a settlement agreement with a court that has already ruled he can't be deposed?

Diwataman points out:

Quote
Not only does it not make sense for that reason, I agree it seems to me it is an attempt as you say to avoid being deposed, but the problem is IT’S THE WRONG COURT! BWAHAHAHA! O’Mara went to the 5th DCA not the Seminole County Courthouse!
http://diwataman.wordpress.com/2013/04/08/blogging-and-such/#comment-9653

Don't people have to give reasons for filing a document? Could Crump just file his latest effort at poetry with the court with no explanation whatsoever?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 01:36:24 PM
Don't people have to give reasons for filing a document? Could Crump just file his latest effort at poetry with the court with no explanation whatsoever?

Crump has been filing in the criminal case, so the clerk would not find him a stranger to action on the murder case against Zimmerman.  Heck, Bernardo filed poetry and Shakespeare recitations, and believe it or not, there have been pleading and even court opinions filed in verse form.  The clerk is the barrier to people filing their own poetry in legal cases.  Lawyers are more likely to get their material past the clerk, and for the most part, they don;t file completely unrelated and unnecessary material.  Which tells me the objective here was not a legal one - I think the court was just used to give Crump plausible deniability for making the settlement public.

I think the filing, being superfluous and generally out of rig anywhere, defies pigeonholing in "this is the civil case" or "this is the criminal case."  I just had those few observations for anybody who was interested, I put them where the question and discussion had taken place, mostly, in the days preceding, and at this point, I am honesty indifferent if the remarks persist, anywhere.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 03:06:30 PM
The following entry was added to the Case Docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=):

04/08/2013    Order to Show Cause-Writs    04/28/2013         20 DYS;REPLY 10 DYS
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 08, 2013, 03:19:22 PM
So the deadline is 20 days or 10 days? Thanks for the update, BTW.
ETA: 4/28/2013
Read then post.
 
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 03:21:04 PM
The following entry was added to the Case Docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=):

04/08/2013    Order to Show Cause-Writs    04/28/2013         20 DYS;REPLY 10 DYS

Makes me feel like hiring a runner ;-)

So, somebody has 20 days to rebut the petition, and O'Mara has 10 days after the rebuttal appears, to reply to any argument raised there.  Who is called on to show cause?  That is the [first] question.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 08, 2013, 03:23:30 PM
Who is called on to show cause?  That is the [first] question.

The court and the state would be the obvious answers with an uncertainly about Mr. Crump, right?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 08, 2013, 04:08:31 PM
John Galt had this to say about the "Order to Show Cause":

Quote
Yeah, seems to me that Crump will be deposed. I thought that getting the DCA to review a discovery order before trial was the main hurdle.


FRAP 9.100

(h) Order to Show Cause. If the petition demonstrates a preliminary
basis for relief, a departure from the essential requirements of law that will cause
material injury for which there is no adequate remedy by appeal, or that review of
final administrative action would not provide an adequate remedy, the court may
issue an order directing the respondent to show cause, within the time set by the
court, why relief should not be granted. In prohibition proceedings such orders
shall stay further proceedings in the lower tribunal.

http://randomtopics.org/viewtopic.php?f=48&t=862&p=30489#p30489
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 04:17:33 PM
John Galt had this to say about the "Order to Show Cause":

http://randomtopics.org/viewtopic.php?f=48&t=862&p=30489#p30489

I think he's reading too much into the terminology.   All the DCA is saying is that the appeal merits a response from the other side.  It is not signaling that O'Mara's argument is strong.

Based on the Eustay or whatever case that MJW put up, I think O'Mara is the one blowing smoke, this time.  Bully for him, and maybe the DCA will side with him.  But Eustay says that defendant can have another trial, after the (alleged) error is cured.  IOW, Eusatay says that if the only loss to defendant is a guilty verdict, even if the trial court wrongly excludes evidence, then the time for appeal is after conviction, not before conviction.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on April 08, 2013, 06:00:18 PM
The item being discussed was filed in the criminal lawsuit.  I'll copy the remarks I made here (for my own reference), but I have no intention of reposting them in the civil lawsuit thread.  You can move them wherever you want.

The petition for writ of cert is in the DCA, not the trial court's criminal case.  You can start a new topic for Crump's filing of the letter in court matters if you'd like. But please keep this thread to the petition for writ of cert. I can't move individual comments to another thread. Thank you.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 06:02:16 PM
I think showing the order for a response and reply as a show-cause order may just be the standard way the court does things. The order for a response for the petition to recuse Lester was also listed as a show-cause order.

Sadly, I agree with cboldt on the chance of success. I'd say ten percent, at very best, unless the defense comes up with some argument I haven't seen yet in the case law. The only one I can think of that might distinguish this case is that GZ is being denied the ability to confront a witness, which implicates his 6th Amendment rights. That's sketchy, though, because Crump isn't a state witness against GZ, and I'm not sure denying access to possible impeachment evidence for W8 is enough to qualify as a 6th Amendment violation.

Added: Actually, there is the argument that denying access to Crump violates GZ's right of a compulsory process to obtain witnesses in his favor.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 08, 2013, 06:12:29 PM
I think he's reading too much into the terminology.   All the DCA is saying is that the appeal merits a response from the other side.  It is not signaling that O'Mara's argument is strong.

Based on the Eustay or whatever case that MJW put up, I think O'Mara is the one blowing smoke, this time.  Bully for him, and maybe the DCA will side with him.  But Eustay says that defendant can have another trial, after the (alleged) error is cured.  IOW, Eusatay says that if the only loss to defendant is a guilty verdict, even if the trial court wrongly excludes evidence, then the time for appeal is after conviction, not before conviction.
The only loss is a guilty verdict?  Why not cut to the chase and allow the information so that there doesn't have to be another trial? 

Anything that is in the (future) deposition is not a guarantee that it will even make into the upcoming trial.  If the Prosecution drops W8 as a witness, then Ben Crump's deposition would be a moot point.

Could this just be Defense strategy to pressure the State to drop W8?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 06:21:31 PM
The petition for writ of cert is in the DCA, not the trial court's criminal case.  You can start a new topic for Crump's filing of the letter in court matters if you'd like. But please keep this thread to the petition for writ of cert. I can't move individual comments to another thread. Thank you.

I know which filings are in which courts.  I have no hard feelings when my remarks are deleted, as this is your space, not mine.  I hope you have no hard feelings if I post a respectful remark in the wrong space.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 06:22:08 PM
Another problem the defense would face with any 6th Amendment argument is that this is about a deposition, not trial testimony, and depositions are certainly not required by the Constitution. I wish I could think of reasons the defense might prevail, because I really wish they would.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 08, 2013, 06:33:33 PM
The only loss is a guilty verdict?  Why not cut to the chase and allow the information so that there doesn't have to be another trial? 

Anything that is in the (future) deposition is not a guarantee that it will even make into the upcoming trial.  If the Prosecution drops W8 as a witness, then Ben Crump's deposition would be a moot point.

Could this just be Defense strategy to pressure the State to drop W8?

"Cut to the chase" takes on a different meaning at the appellate level.  The appellate courts have to tolerate error below, lots of error below, or else they'd be swamped with appeals.  There is a legitimate process rationale to deny a remedy, even a well deserved remedy, until after the trial has been concluded.

I think O'Mara is making a reasoned public pleading, with complex justification that involves public perception, threat to the prosecutor, threat to Crump, and notice to Nelson that he does not appreciate her games.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 08, 2013, 06:54:20 PM
Here is the docket (http://199.242.69.70/pls/ds/ds_docket) for Eutsay v. State (http://scholar.google.com/scholar_case?case=9059062231580367501&hl=en&as_sdt=2,45) showing that the order for a response was framed as a show-cause order. The petition was dismissed. (Eutsay was eventually acquitted, so we'll never know how the discovery issue would have fared on appeal.)
Quote
10/21/2011    Petition Filed         Kevin Robert Alvarez 0088527    
10/24/2011    Writ of Certiorari / Acknowledgement letter              
10/24/2011    Case Filing Fee              
10/25/2011    Docketing Statement              AA Kevin Robert Alvarez 0088527
10/31/2011    SC Why Certiorari Should not be Granted-150d    11/18/2011         This proceeding is hereby treated as a petition for writ of certiorari. No later than November 18, 2011, respondent shall show cause why the petition for writ of certiorari should not be granted. Petitioner may serve a reply within 10 days thereafter.
11/17/2011    RESPONSE         Trisha Meggs Pate, A.A.G. 0045489    
11/21/2011    REPLY         Kevin Robert Alvarez 0088527    
05/24/2012    Dismissed - Authored Opinion              withdrawn - see 8/8 opinion
06/06/2012    Motion For Clarification         Trisha Meggs Pate, A.A.G. 0045489    GRANTED SEE OPINION
08/08/2012    Dismissed - Authored Opinion              clarification granted, w/draw prev opin, substituting opinion of 5/24
01/10/2013    Mandate              
01/10/2013    Case Closed              
01/10/2013    West Publishing              
01/10/2013    Case Permanent 
   
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 08, 2013, 08:31:34 PM
Quote
ORDER TO SHOW CAUSE
ON 08 APRIL 2013.
The following Order to Show Cause has been filed by the Fifth District Court of Appeal:

http://www.gzlegalcase.com/index.php/court-documents/138-order-to-show-cause
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 08, 2013, 08:39:39 PM
http://www.gzlegalcase.com/index.php/court-documents/138-order-to-show-cause

Is a  CC to the State Attorney General normal for any considerations being taken up by the 5th DCA?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 08, 2013, 08:58:02 PM
Am I understanding this correctly? The DCA is asking the state (BDLR) to respond? That will be interesting. Is BDLR going to just plagiarize Blackwell's homework or will he actually have to do some research on his own? :) I wonder if he can consult with Blackwell and/or Crump.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 09, 2013, 12:37:26 AM
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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 09, 2013, 06:35:00 AM
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 (http://scholar.google.com/scholar_case?case=16341055584270740497&hl=en&as_sdt=2,45), 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 09, 2013, 07:07:58 AM
Am I understanding this correctly? The DCA is asking the state (BDLR) to respond? That will be interesting. Is BDLR going to just plagiarize Blackwell's homework or will he actually have to do some research on his own? :) I wonder if he can consult with Blackwell and/or Crump.

On that point, the DCA did send a courtesy copy of the order to Mr. Blackwell - as an interested party, I suppose. What are the vehicles for Crump to argue against this petition?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 09, 2013, 07:46:52 AM
On that point, the DCA did send a courtesy copy of the order to Mr. Blackwell - as an interested party, I suppose. What are the vehicles for Crump to argue against this petition?

Technically, he's an intervenor in the action between the state and Zimmerman.  The press has filed numerous motions in the case, arguing for sunlight, but the press is likewise not a party.  Similar for witnesses.  They are not parties, but they may bring legal baggage of their own to an underlying case - e.g., refusal to testify based on an assertion of privilege.

Crump/Blackwell will want to get their two cents in, and I'm sure the DCA would rather hear from them now, but it is not going to compel them to respond.  Assume the DCA grants the relief O'Mara seeks, putting Crump under a court-issued subpoena to testify.  He'd want to fight that via appeal, but that opportunity will be behind him, and forever lost.  IOW, the DCA will have already ruled that he may be deposed, and will have given legal rationale.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on April 09, 2013, 08:15:10 AM
I guess the other question that comes to mind is if the SAO would be more like to respond, or the Florida AG?

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 09, 2013, 08:26:00 AM
I guess the other question that comes to mind is if the SAO would be more like to respond, or the Florida AG?

Florida AG replied to O'Mara's petition for a Writ of Prohibition against Judge Lester.

The fact that O'Mara is making these filing available is great.  The courts are accustomed to hiding behind the wall of obfuscation that the press inevitably creates.  Of course some people are always interested enough to read the actual court pronouncements, but that is usually a very small number of people, so the fact that courts are acting foolish isn;t well known by the public.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 10, 2013, 01:43:16 PM
The concurring opinion in Bill Kasper Const. Co., Inc. v. Morrison (http://scholar.google.com/scholar_case?case=11221825863523163186&hl=en&scisbd=2&as_sdt=5,45&sciodt=2,45), 93 So. 3d 1061 (Fla. 5th DCA 2012) says of decisions allowing interlocutory appeal of discovery issues:

Quote
These cases should be overruled in favor of the approach taken by the majority of courts that have confronted this issue.[2] See, e.g., Power Plant Entm't, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So.2d 565, 566 (Fla. 4th DCA 2007) (en banc) (certiorari not available from denial of discovery due to adequate remedy on plenary appeal); Neeley v. CW Roberts Contracting, Inc., 948 So.2d 844 (Fla. 1st DCA 2007) (orders denying discovery almost invariably not reviewable by certiorari because of absence of irreparable harm); Chavarria v. Bautista, 922 So.2d 245 (Fla. 3d DCA 2006) (denial of discovery not reviewable by certiorari).

I think that position is at odds with the Florida supreme court in Williams v. Oken (http://scholar.google.com/scholar_case?case=7984494182305369267&hl=en&as_sdt=2,45), 62 So. 3d 1129 (Fla. 2011), which (quoting from another case) explained:

Quote
[T]he phrase "departure from the essential requirements of law" should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.

It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

It isn't clear to me what the court thinks the criteria should be, but it is clear that it doesn't think should be limited "only to violations which effectively deny appellate review."

The statement in the concurring opinion also seems to me to mischaracterize Power Plant Entm't, LLC v. Trump Hotels & Casino Resorts Dev. Co. (http://scholar.google.com/scholar_case?case=13988612236784178973&hl=en&as_sdt=2,45) as imposing an absolute rule. It actually does the opposite, rejecting such a rule:

Quote
We have now concluded that we should take this opportunity to recede from the cases indicating we have a hard and fast rule against reviewing orders denying discovery, and join our sister courts which have occasionally, but not routinely, granted review. See, e.g., Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004); Lifemark Hosps. v. Izquierdo, 899 So.2d 478 (Fla. 3d DCA 2005); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000).

* * *

We voted to en banc this case solely for the purpose of announcing that we do not have a hard and fast rule against reviewing orders denying discovery. It is unnecessary for the full court to consider whether an order to show cause should be issued on this petition, and accordingly further proceedings will be before the original panel, not the entire court.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 10, 2013, 02:16:28 PM
It isn't clear to me what the court thinks the criteria should be, but it is clear that it doesn't think should be limited "only to violations which effectively deny appellate review."

The absence of clarity makes it easier for the courts rule "on the fly."

STATE v. MARTINEZ (http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FLCO%2020090224130.xml&docbase=CSLWAR3-2007-CURR), 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.

The failure to address the contents of the conversation in the order and expressly find actual prejudice is not "a violation of a clearly established principle of law resulting in a miscarriage of justice." See Pettis ...


That is different from the formula in Williams V. Oken, "The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice."

IOW, in the Martinez case, the result (miscarriage of justice) was not part of the calculus - that the prosecutor listened in to privileged communication was enough, even if the end result was no improvement in advantage in the trial.  Seems to me, the Fl Supreme Court would disagree, and would order the DCA to require a showing of miscarriage of justice.

Anyway, my only point is that are sufficient widgets in the case law to allow an appellate court to pretty much whatever it wants to.  The job of the opposing counsel is to try to understand what levers work the court's preferences.  I think O'Mara's policy argument is a pretty good one, and it isn't as though the appellate courts are going to be swamped with appeals of this particular nature.  Better to nip it in the bud, and not allow the Crump's of the world to abuse the legal process for personal advantage.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim on April 10, 2013, 03:01:31 PM
The absence of clarity makes it easier for the courts rule "on the fly."

Anyway, my only point is that are sufficient widgets in the case law to allow an appellate court to pretty much whatever it wants to.  The job of the opposing counsel is to try to understand what levers work the court's preferences.  I think O'Mara's policy argument is a pretty good one, and it isn't as though the appellate courts are going to be swamped with appeals of this particular nature.  Better to nip it in the bud, and not allow the Crump's of the world to abuse the legal process for personal advantage.
Yes, the Appellate Court should ask itself if it wants to allow lawyers to induce questionable witness testimony in a criminal case in order to further their goals in a civil case.  The adversary system needs some fetters just as the capitalist system does.  >:(  The Court probably won't go as far as I would want in saying any lawyer who interviews a non-expert, non-client  witness in a case outside of a deposition or courtroom setting can be deposed about the circumstances and content of his interview.  That should also go for prosecutors.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on April 10, 2013, 03:01:37 PM
STATE v. MARTINEZ (http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FLCO%2020090224130.xml&docbase=CSLWAR3-2007-CURR), 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 24, 2013, 02:33:00 PM
The state has filed a response (http://www.gzdocs.com/documents/0413/response_to_writ.pdf).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: AJ 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron 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?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: JB 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.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron 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   : - )
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: nomatter_nevermind on April 26, 2013, 08:43:07 AM
Okay, how's the subpoena to ABC working out?

PETITION FOR WRIT OF CERTIORARI, (http://www.gzdocs.com/documents/0413/petition.pdf) 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.

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 26, 2013, 09:35:47 AM
PETITION FOR WRIT OF CERTIORARI, (http://www.gzdocs.com/documents/0413/petition.pdf) p. 21.

So not very well then?

I wish someone could subpoena ABC to find out what could possibly have scared them enough to destroy the rest, if they really did, of something which no other news outfit had, an event, to my knowledge, absolutely unprecedented in journalism (not counting outfits like Pravda).

And another subpoena for Gutman's own copy of it that ABC doesn't know about.  ;)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: RickyJim on April 26, 2013, 10:12:16 AM
Nobody should work themselves into a tizzy over the missing ABC footage.  Save it for when you learn about the missing GPS data from Martin's and Zimmerman's phones.   ::)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on April 26, 2013, 10:28:07 AM
Nobody should work themselves into a tizzy over the missing ABC footage.  Save it for when you learn about the missing GPS data from Martin's and Zimmerman's phones.   ::)

Yea, what's up with that? Is that why they filed this?

http://www.gzdocs.com/documents/0413/042513_discovery_demand.pdf

EDIT: The missing data is still missing after all this time?

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on April 26, 2013, 10:57:53 AM
Nobody should work themselves into a tizzy over the missing ABC footage.  Save it for when you learn about the missing GPS data from Martin's and Zimmerman's phones.   ::)

But that's okay, it's only missing for the 26th, not the entire weekend or anything.

 ::)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 30, 2013, 12:33:37 PM
Crump filed a proposed response (http://www.mediafire.com/view/?gp36232723z564o) and separate pleadings asking to be allowed to respond. (The link is to a MediaFire account that allows the PDF to be downloaded.)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 30, 2013, 01:40:18 PM
In the petition to allow a response, Blackwell cites Towers v. City of Longwood (http://scholar.google.com/scholar_case?case=11870944833341726430&hl=en&as_sdt=2,45), 960 So. 2d 845 (Fla. 5th DCA 2007) as a case where a non-party was allowed to file a response. If I were the defense, I'd say "thank you very much," because Towers is an excellent case for them. In Towers, the 5th DCA granted a writ of certiorari when the trial court issued a protective order preventing the plaintiff from deposing a witness. The witness claimed she had nothing relevant on the matter, but the DCA observed, "it would be utterly impossible to tell whether Ms. Putz has any information that is relevant to the suit if Mr. Towers is prohibited from asking any questions of her."
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on April 30, 2013, 02:29:09 PM
In the petition to allow a response, Blackwell cites Towers v. City of Longwood (http://scholar.google.com/scholar_case?case=11870944833341726430&hl=en&as_sdt=2,45), 960 So. 2d 845 (Fla. 5th DCA 2007) as a case where a non-party was allowed to file a response. If I were the defense, I'd say "thank you very much," because Towers is an excellent case for them. In Towers, the 5th DCA granted a writ of certiorari when the trial court issued a protective order preventing the plaintiff from deposing a witness. The witness claimed she had nothing relevant on the matter, but the DCA observed, "it would be utterly impossible to tell whether Ms. Putz has any information that is relevant to the suit if Mr. Towers is prohibited from asking any questions of her."

WTH is a Proposed Respondent?  Why does he continue to meddle in a Criminal trial? has he even figured out that if he hadn't pulled this BS this wouldn't have been happening?

Quote
witness (8) whom Attorney Crump interviewed in anticipation of civil litigation before
Petitioner was ever arrested or charged with a crime.

So now she was there because of Civil Litigation rather than for the purposes of "connecting all of the dots?"  Blowing the case wide open?

This is between Zimmerman and the State.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: AJ on April 30, 2013, 07:07:02 PM
This is confusing to me. Wouldn't any respondent in opposition to the petition have to file before the deadline set for those who are mandated to file? It seems to me that it was filed a day late, but I don't know the rules on this. It would strike me as odd that, for example, Blackwell could have filed this on May 3rd leaving the defense no time to respond to it specifically.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 30, 2013, 08:42:09 PM
That's a good point, AJ. I'm quite curious to see what the DCA will do about this pleading.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 30, 2013, 09:06:49 PM
I think Crump's pleadings may have been filed on time. I believe time is computed in accordance with Rules of Judicial Administration, rule 2.514(a):

RULE 2.514. COMPUTING AND EXTENDING TIME

(a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on April 30, 2013, 09:42:19 PM
It's made somewhat confusing because the time limit for a reply depends on the time the response was filed. If the response were filed in 8 days, then the time for a reply could expire before the end on the initial 20 days allowed for the response. The DCA probably didn't contemplate a second response, and I'm not sure what rule allows one. Blackwell cites a civil case, but civil cases allow parties to intervene for limited purposes. In criminal proceedings there are only two parties, the state and the defendant.

If the defense had been granted the right to depose Crump, then based on Miami Herald Pub. Co. v. Morejon (http://scholar.google.com/scholar_case?case=12495612312136923621&hl=en&as_sdt=2,45), 529 So. 2d 1204 (Fla. 3d DCA 1988), I believe Crump could have petitioned for a writ of certiorari, naming Zimmerman as the respondent. But if the DCA decides Crump can't respond in Zimmerman's petition for a writ of certiorari, and rules in Zimmerman's favor, I believe the principle of res judicata would probably prevent an attempt by Crump to seek relief in the DCA. As I understand it, res judicata basically says that a court won't relitigate an issue it's already decided.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: AJ on April 30, 2013, 10:37:30 PM
I was going off of the 5th DCA's appeal case docket:

04/08/2013    Order to Show Cause-Writs    04/28/2013    

The 4/28/2013 is the "Date Due" column

http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: AJ on May 01, 2013, 01:34:06 AM
I was going off of the 5th DCA's appeal case docket:

04/08/2013    Order to Show Cause-Writs    04/28/2013    

The 4/28/2013 is the "Date Due" column

http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=

But then, the 28th was Sunday so it would've held over until close of business Monday anyway. Well, at least now we know.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 03, 2013, 03:01:16 PM
The defense moved for an extension of time:

05/03/2013    Motion for Extension of Time         Petitioner

Most likely, I assume, on the grounds that not only do they have to reply to both the state's and Crump's response, but the ten days allowed started with the state's response, yet Crump responded five days later.

So far, the court hasn't ruled that Crump can respond. I think it's likely he'll be allowed to, but I did a brief search, and couldn't find a comparable situation in a criminal case.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on May 03, 2013, 10:06:25 PM
The defense moved for an extension of time:

05/03/2013    Motion for Extension of Time         Petitioner

Most likely, I assume, on the grounds that not only do they have to reply to both the state's and Crump's response, but the ten days allowed started with the state's response, yet Crump responded five days later.

So far, the court hasn't ruled that Crump can respond. I think it's likely he'll be allowed to, but I did a brief search, and couldn't find a comparable situation in a criminal case.

I don't see why he should be allowed to.  Everything being addressed is between the State and Zimmerman.  His  "proposed respondent" is horse hockey in my books.  He wanted to meddle in a criminal case.  He brought forth the witness that was to "blow the lid off and connect all the dots."  She has since been semi-discredited, so now he needed her for a civil case?

Seriously?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 04, 2013, 12:15:18 AM
I don't see why he should be allowed to.  Everything being addressed is between the State and Zimmerman.  His  "proposed respondent" is horse hockey in my books.  He wanted to meddle in a criminal case.  He brought forth the witness that was to "blow the lid off and connect all the dots."  She has since been semi-discredited, so now he needed her for a civil case?

Seriously?

Since Crump's motion to respond was unopposed, I think the DCA will probably allow it, though I'd like to see them deny it. I think they should, too. It should be up to the state, not Crump, to argue that the petition should be dismissed because post-judgement relief is available, and Crump's work-product arguments are already part of the trial court record.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 04, 2013, 12:23:18 AM
I'm surprised the DCA hasn't yet issued an order, one way or the other, on Crump's proposed response. They've had almost a week, and currently the reply deadline is Monday.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 04, 2013, 04:33:15 AM
I'm surprised the DCA hasn't yet issued an order, one way or the other, on Crump's proposed response. They've had almost a week, and currently the reply deadline is Monday.

They might be "squeezing" petitioner to make a response by the original deadline, at the same time allowing a separate and 10 day later response (to Crump) should they grant Crump's motion to be heard.  The DCA hasn't ruled on O'Mara's motion for an extension, so he best be acting as though none is granted.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on May 04, 2013, 10:34:20 AM
I have no idea how you keep up with all this.  It's confusing sometimes and well above my pay grade!

 ;)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DiwataMan on May 04, 2013, 03:41:23 PM
I glanced through and didn't see if you all had this link here so here it is:

http://www.5dca.org/pub_info.shtml

Don't see O'Mara's doc asking for more time though. Maybe they'll post it on there next week sometime.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 04, 2013, 05:33:50 PM
I glanced through and didn't see if you all had this link here so here it is:

Thanks, DiwataMan. I don't recall seeing that website before. I wish the document websites would try harder to keep current.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: lin on May 04, 2013, 06:46:28 PM
I glanced through and didn't see if you all had this link here so here it is:

http://www.5dca.org/pub_info.shtml

Don't see O'Mara's doc asking for more time though. Maybe they'll post it on there next week sometime.

The motion for an extension is listed on the regular docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=).
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 04, 2013, 08:55:57 PM
I wonder if the defense motion for more time might also include as justification the fact that all evidentiary motions in the trial court are supposed to be filed by the end of this coming week. I'm not sure why the defense couldn't have filed the motion earlier in the week; though perhaps it will be more apparent once we can read it.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DebFrmHell on May 04, 2013, 09:49:07 PM
The motion for an extension is listed on the regular docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=).

Thank you, Lin!
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: DiwataMan on May 05, 2013, 01:45:43 AM
The motion for an extension is listed on the regular docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=).

I'm aware of that. I'm talking about the actual document.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Evil Chinchilla on May 05, 2013, 03:23:51 PM
The defense moved for an extension of time:

05/03/2013    Motion for Extension of Time         Petitioner

Most likely, I assume, on the grounds that not only do they have to reply to both the state's and Crump's response, but the ten days allowed started with the state's response, yet Crump responded five days later.

So far, the court hasn't ruled that Crump can respond. I think it's likely he'll be allowed to, but I did a brief search, and couldn't find a comparable situation in a criminal case.

I hate to sound really dense, but is the extension requested in this motion asking to push the trial date back from 6/10/13?

Or is this only asking the DCA for an extension in the proceedings on the Writ of Certiorari only?

I haven't been able to read the actual motion yet, and I'm not sure I'm following what's being said about it.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 05, 2013, 03:43:43 PM
I hate to sound really dense, but is the extension requested in this motion asking to push the trial date back from 6/10/13?

Or is this only asking the DCA for an extension in the proceedings on the Writ of Certiorari only?

I haven't been able to read the actual motion yet, and I'm not sure I'm following what's being said about it.

Almost certainly, the defense is just asking for more time to file its reply.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 05, 2013, 04:34:19 PM
Or is this only asking the DCA for an extension in the proceedings on the Writ of Certiorari only?

This.  The request for an extension of time was filed in the DCA, so it's about the timing of events before the DCA.  If O'Mara wants a continuance (lawyer/judge-speak for "delay") in the trial, he'll ask Nelson.  If Bernardo wants a continuance, he'll ask Nelson.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on May 05, 2013, 09:10:26 PM
This.  The request for an extension of time was filed in the DCA, so it's about the timing of events before the DCA.  If O'Mara wants a continuance (lawyer/judge-speak for "delay") in the trial, he'll ask Nelson.  If Bernardo wants a continuance, he'll ask Nelson.

Who does Crump ask?

(or tell)

 ;D
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Evil Chinchilla on May 06, 2013, 02:58:24 AM
Thanks for the responses. I felt relatively certain it was filed for an extension in the proceedings on the Writ of Certiorari, but just wanted to be sure.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 06, 2013, 08:41:41 AM
I wonder if the defense motion for more time might also include as justification the fact that all evidentiary motions in the trial court are supposed to be filed by the end of this coming week. I'm not sure why the defense couldn't have filed the motion earlier in the week; though perhaps it will be more apparent once we can read it.

No justification is provided.  O'Mara lays out the schedule as directed by the DCA, and asks for until Thursday the 9th to file a reply.  He certifies that there is no objection from the respondant, and says that there would be no untoward delay, and no other party would be affected.  He makes no reference to Crump's filing.  The date he is asking for is 3 days late from the original schedule (taking the state's actual filing date), and although he doesn't spell it out, is one day later that from the original schedule if the state had taken 20 days.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 06, 2013, 11:37:35 AM
The date he is asking for is 3 days late from the original schedule (taking the state's actual filing date), and although he doesn't spell it out, is one day later that from the original schedule if the state had taken 20 days.

It's also -- perhaps coincidentally, perhaps not -- 10 days after Crump filed. Also, if the State had filed on the final day, it would have been on the day Crump filed, since the 20th day was a Sunday.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: FromBelow on May 06, 2013, 01:52:44 PM
ORDERS FROM THE 5TH DCA

Benjamin Crump's Motin for Leave to File Response, filed April 29, is granted.
Petitioner's Motion for Extension of Time, filed May 3, is granted.

http://gzlegalcase.com/index.php/court-documents/161-orders-from-the-5th-dca
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 07, 2013, 01:37:03 AM
After thinking about it a little more, I've changed my opinion that the current law in the 5th district favors the DCA dismissing the petition writ of certiorari. I now think it marginally favors considering the merits. The most significant case is still Bill Kasper Const. Co., Inc. v. Morrison (http://scholar.google.com/scholar_case?case=11221825863523163186&hl=en&scisbd=2&as_sdt=5,45&sciodt=2,45), 93 So. 3d 1061 (Fla. 5th DCA 2012).  There's an important, but somewhat subtle, difference between the issue in Bill Kasper Const. and the issue in the Zimmerman case that I think distinguishes them. In Bill Kasper Const., the trial court excluded an expert witness. In dismissing the petition, the DCA said:

Quote
We acknowledge there are three cases from our court that are inconsistent with this case law. First, in Premark International, Inc. v. Pierson, 823 So.2d 859 (Fla. 5th DCA 2002), our court quashed a trial court order striking the defendant's sole expert witness in a personal injury case. Similarly, in Heathrow Master Ass'n v. Zulia, 52 So.3d 811 (Fla. 5th DCA 2011), we quashed a trial court order striking the defendant's expert witness. In so ruling, we reasoned:

Quote
[I]t is difficult to understand how striking the testimony of a material witness can be remedied on appeal since there is no meaningful way to determine, after judgment, what the testimony would have been or how it would have affected the result.

Id. at 813. See also Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980) (reasoning similarly).

We find this reasoning unpersuasive. 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. See Cooper v. Lewis, 719 So.2d 944 (Fla. 5th DCA 1998); Brinkerhoff v. Linkous, 528 So.2d 1318 (Fla. 5th DCA 1988). As such, we recede from Premark, Heathrow, and Travelers to the extent that they are inconsistent with this opinion.

The reason the court gave, that "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," applies when a favorable expert witness is prevented from testifying, but not when an adverse witness like Crump can't be deposed. The state argued that Crump's affidavit can be used to evaluate what his testimony would have been, but I think that's transparently ridiculous. Though the court did recede from several cases including Travelers Indem. Co. v. Hill to the extent they were inconsistent with its opinion, the quoted reasoning shows that the cases are only inconsistent in suggesting that certiorari review is available even when the excluded evidence can be assesed by a post-judgement appellate court.

That the court was not prohibiting certiorari review of all evidentiary issues is apparent from the concurrence. The concurrence does take that position, but it couldn't get enough support from the en banc panel to become the opinion of the court.

Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 07, 2013, 02:01:47 AM
Perhaps also significant, the court says: "We acknowledge there are three cases from our court that are inconsistent with this case law." Unmentioned as inconsistent is the relatively recent Towers v. City of Longwood (http://scholar.google.com/scholar_case?case=11870944833341726430&hl=en&as_sdt=2,45), 960 So. 2d 845 - Fla: Dist. Court of Appeals, 5th Dist. 2007, where the issue is most similar the the Zimmerman case.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 07, 2013, 04:00:09 AM
After thinking about it a little more, I've changed my opinion that the current law in the 5th district favors the DCA dismissing the petition writ of certiorari. I now think it marginally favors considering the merits. The most significant case is still Bill Kasper Const. Co., Inc. v. Morrison (http://scholar.google.com/scholar_case?case=11221825863523163186&hl=en&scisbd=2&as_sdt=5,45&sciodt=2,45), 93 So. 3d 1061 (Fla. 5th DCA 2012).  There's an important, but somewhat subtle, difference between the issue in Bill Kasper Const. and the issue in the Zimmerman case that I think distinguishes them. ...

The reason the court gave, that "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," applies when a favorable expert witness is prevented from testifying, but not when an adverse witness like Crump can't be deposed.

I remember talking about that a month ago.  The remarks are back at April 4 or so in this thread.  A case that was brought up after that seemed to cut the other way, assuming Crump can be deposed between trials (i.e., assuming the DCA denies this petition as not timely, but were to grant a similar one after a conviction).  And then there was the case that granted an interlocutory petition as to venue for a retrial, citing some "exceptional circumstances" to justify stepping on the trial court's toes.

IMO, the controlling precedents don't facilitate reliable prediction, because there is sufficient variety in the decisions, and an adequate number of legal widgets to justify any outcome.  The DCA will decide the outcome first, then pick the cases that fit the selected outcome.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 09, 2013, 08:34:34 PM
As far as I know, the reply that was due today hasn't been posted anywhere. I'm eager to read it. I hope the defense filed on time. I hope it concentrates on distinguishing Bill Kasper Const. from the Crump situation, since that seems to be to be the key issue.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on May 10, 2013, 07:24:58 AM
Petitioner's Reply to State of Florida's Response (http://www.gzdocs.com/documents/0513/petitioner_reply_state.pdf)

Petitioner's Reply to Benjamin Crump's Response (http://www.gzdocs.com/documents/0513/petitioner_reply_to_crump.pdf)

Petitioner's Unopposed Motion for Leave to to Respond (http://www.gzdocs.com/documents/0513/petitioner_motion_for_leave.pdf)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on May 10, 2013, 07:38:09 AM
In the reply to the state, O'Mara leans a bit on a new decision - not available at the time of the original petition - from the 4th District: Allstate Ins. Co. v. Total Rehab.  (http://www.4dca.org/opinions/Mar%202013/03-13-13/4D12-3095.op.pdf)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 10, 2013, 07:54:05 AM
In the reply to the state, O'Mara leans a bit on a new decision - not available at the time of the original petition - from the 4th District: Allstate Ins. Co. v. Total Rehab.
 (http://www.4dca.org/opinions/Mar%202013/03-13-13/4D12-3095.op.pdf)

Thanks for the link to the Allstate case opinion.  My first thought (and I haven't read Allstate, just going by O'Mra's presentation) is that the legal calculus can be very different, depending on what the trial court did, and which side is asking for relief.  In Allstate, the trial court allowed the deposition, and the attorneys (who were literally opposing counsel in the case at hand) argued that allowing the deposition was a departure from essential requirements of law, resulting in irreparable detriment.  That's just a long-winded way of saying that the Allstate precedent isn't necessarily useful, based the difference between the barrier erected by Nelson, and what the Allstate trial judge allowed.

But, Allstate clearly stands for the proposition that opposing counsel does not have a privilege.

The state's argument in favor of Nelson includes the lines of "assume for argument that Nelson is wrong, that Crump is not opposing counsel, and even if he was, he's waived privilege.  Even if Nelson is wrong on the law, this appeal should wait until the trial has been concluded."  The Allstate case doesn't address that.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 10, 2013, 07:56:13 AM
As far as I know, the reply that was due today hasn't been posted anywhere. I'm eager to read it. I hope the defense filed on time. I hope it concentrates on distinguishing Bill Kasper Const. from the Crump situation, since that seems to be to be the key issue.

Kasper makes no appearance.  Maybe is a ghost.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on May 10, 2013, 08:04:21 AM
The state's argument in favor of Nelson includes the lines of "assume for argument that Nelson is wrong, that Crump is not opposing counsel, and even if he was, he's waived privilege.  Even if Nelson is wrong on the law, this appeal should wait until the trial has been concluded."  The Allstate case doesn't address that.

That's the way I read it as well - Allstate doesn't argue for intervention but it seems on point for the proposition that Nelson's order was error.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 10, 2013, 08:11:28 AM
That's the way I read it as well - Allstate doesn't argue for intervention but it seems on point for the proposition that Nelson's order was error.

Even if Crump was literally opposing counsel, instead of opposed in principle by dint of intending to sue defendant in civil court.

It's interesting to read appellate opinions (Allstate isn't one of these) where trial judge is reversed for failure to make a record, or for failure to make findings as to each element required to support an order.  Nelson may feel that ignoring an argument (waiver) or failing to produce an opinion that supports an order (her March 28 opinion/order) will protect her from making an error; but those deficiencies are error in and of themselves.  Lester made similar errors in order to incarcerate Zimmerman following the PayPal fiasco.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on May 10, 2013, 08:22:27 AM
Kind of a marginally on-topic question - is there usually a kind of pecking order between a state's various districts where one may be veiwed as more of a trend-setter than the others or is it usually split down political lines like US District Courts?
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: cboldt on May 10, 2013, 08:40:40 AM
Kind of a marginally on-topic question - is there usually a kind of pecking order between a state's various districts where one may be veiwed as more of a trend-setter than the others or is it usually split down political lines like US District Courts?

It's inside baseball, but I think most states have a similar dynamic to what one sees in the Federal Circuit Courts.  Some have higher quality jurisprudence; some like to make new law and be socially active, etc.  I don't think there is any formal pecking order, just the same sort of pecking order (trustworthiness vs. need to keep an eye on vs. sycophants vs. mindless drones) that happens in any large, distributed organization.  I have no clue as to the dynamics in Florida's court system, other than the view I obtained of SCOFLA in the Bush v. Gore duel.  I concluded that a majority of the Florida Supreme Court is corrupt and lawless.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 10, 2013, 12:37:04 PM
Kasper makes no appearance.  Maybe is a ghost.

I think it may be an unfriendly ghost to the defense. It seems unwise to not address the implications of a very recent case, cited in the responses, that explicitly recedes to some degree from some of the cases the defense relies on. An advantage they have is that it was recent and en banc. When agreeing to the opinion of the court, the DCA judges probably thought about how it would apply to cases where there was no testimony to proffer.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 10, 2013, 03:39:05 PM
I don't think the replies were bad, but they could have been a lot better. For example, the defense could have pointed out that in the Crump interview, W8 changed GZ's retort to Martin, seemingly at Crump's suggestion. They should have taken to opportunity to mock the state's assertion that at an appeal, the defense could proffer Crump's affidavit to show what is testimony would have been. In short, instead of mostly rehashing the arguments in the original petition, I believe they should have directly refuted the arguments in the responses.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: jeanmarc8 on May 12, 2013, 01:48:30 PM
IANAL but will offer the following:

I find interesting the suggestion by the Florida Attorney General for depositions of ABC personnel and others in place of deposition of Mr. Crump.  I think that legal opinion missed the mark. This is particularly true after the initial guidance “to leave no stone untouched” ( http://www.newsmax.com/US/BondiTrayvonZimmermanSanford/2012/03/23/id/433729 ).  There just seems to be a lot of rocks unmoved. The state and their prosecutors look like they are afraid they may reveal more exculpatory information if they overturn the wrong rock. The unrevealed information on W8 is a small boulder in their rock pile.

As noted by Mr. O’Mara in his response, the legal question to be answered is not IF Mr. Crump should answer questions regarding his involvement in the case. The real question is WHY he has not already answered those questions, specifically those related to his knowledge about W8. That would include documentation to back up his claims well beyond matters stated in his affidavit.  The state and their prosecutors should have required detailed statements from all involved (including Mr. Crump and the ABC newsman) from the initial telephone interview with W8, so they would have the appropriate background information on their critical witness.  The state and their prosecutors should have demanded audible copies of all the voice recordings, and had them fully analyzed.  With their reliance on “ear witnesses”, the state and their prosecutors should have ensured all telephone data were fully collected and analyzed, including the information contained on the cell phone found at the scene. The apparent lack of “due diligence” by the state and their prosecutors evidenced by”cherry-picking” of information have left many rocks untouched. Now the defense must turn over those rocks while getting push back in the process.  This information should certainly have been fully collected and analyzed before charges were filed on any Citizen of the United States of America.

I sense that the state and their prosecutors have “outsourced” their constitutionally defined role in this case, thus “opposing counsel”. Rather than conduct a full and thorough investigation before submitting the Affidavit of Probable Cause to charge a Citizen of the United States of America, they have accepted information from Mr. Crump et al, without fully verifying accuracy or truthfulness. Examples include the statements on the age of W8 and her claim of a hospital visit, which reflect negatively on her credibility and thus critical for the Affidavit of Probable Cause.  The note from W8 (?) that recently came to light is another example of rocks not adequately turned. The state and their prosecutors have allowed Mr. Crump and his staff to make provocative claims in front of news cameras without demanding facts and backup documents. Freedom of speech would not be lost by allowing those claims to be repeated after a person has sworn “to tell the truth, the whole truth, and nothing but the truth”.

In doing so, the state and their prosecutors have violated GZ’s right for due process and equal protection afforded by the Fourteenth Amendment to the Constitution. Violation of such a basic, Constitutional right of a Citizen cannot wait to be addressed by appeal after the trial. The best and only sufficient, remedy is to allow the lawyers for GZ to depose any person they reasonably believe may have pertinent information in this case, to include Mr. Crump and his entire staff. Fully turning the W8 “rock” may require deposition of BDLR since he was a witness to the interview with W8, and the surrounding uncertainty on that critical witness’s testimony.

The decision by the DCA on deposition of non-party lawyers will be precedent for future criminal cases.  The DCA decision to limit such depositions would encourage actions that may encroach on criminal cases.  Such encroachment may subvert Brady protection, since inculpatory evidence may be highlighted or enhanced; while exculpatory evidence may be obscured or hidden.  Conversely, the DCA decision to allow such depositions will likely cause such lawyers to more carefully consider their involvement in criminal cases.

In conclusion, the DCA should proceed expeditiously to grant the request from Mr. O’Mara in the Writ of Certiorari, as well as approve deposition of others as deemed needed by Mr. O’Mara in his defense of Mr. Zimmerman.

Again IANAL, and I certainly could be wrong.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Cylinder on May 13, 2013, 04:36:37 PM
The court entered a Miscellaneous Order in that docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=). I'm assuming it accepts Zimmerman's resonse to Crump.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on May 13, 2013, 06:19:46 PM
The court entered a Miscellaneous Order in that docket (http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2013&p_casenumber=1233&psCourt=5&psSearchType=). I'm assuming it accepts Zimmerman's resonse to Crump.

The order (http://www.gzdocs.com/documents/0513/order_granting_filed_reply.pdf) is now available on gzdocs.com.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on May 13, 2013, 11:28:58 PM
IANAL ...

Perhaps you should have been.

Or maybe even a judge.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: Raoul on June 03, 2013, 02:34:56 PM
Nelson reversed. Crump can be deposed.
http://www.gzdocs.com/documents/0613/dca5_opinion.pdf
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: MJW on June 03, 2013, 02:49:03 PM
Nelson reversed. Crump can be deposed.
http://www.gzdocs.com/documents/0613/dca5_opinion.pdf

Very good. I still think Florida law doesn't allow for any work-product privilege in a criminal case except for the defense and prosecuting attorneys. I wish the defense had made that argument. It's a shame the defense (and we) won't learn how Crump actually went about locating W8.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on June 03, 2013, 02:53:06 PM
Unfortunately they're not going to be able to grill him about his unsubstantiated charge that Wolfinger and whoever went down to the police station that night and conspired in a cover-up.

If there's corruption in the department that conducted the initial investigation, the defense has a right to know about that.

(not saying there is, just want Crump to sweat over it)
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: TalkLeft on June 04, 2013, 12:52:58 PM
Please discuss Leatherman at his blog.
Title: Re: Writ of Certiorari (Crump Deposition)
Post by: unitron on June 04, 2013, 02:01:36 PM
Please discuss Leatherman at his blog.

I did.

It was not well received.   ;D