Posted on 04/06/2013 8:27:40 AM PDT by Uncle Chip
O’Mara, on April 04, 2013, filed a Writ of Certiorari asking the Florida District Court of Appeal for the Fifth District to overturn Judge Nelson’s decision denying a deposition for Benjamin Crump. A writ of certiorari is simply the legal vehicle for asking a higher court to overturn the decision of a lower court.
This is an interesting step. Lawyers generally do not, while a case is in progress, do such things. They want to stay on the good side of the presiding judge, and few things anger most judges more than having their rulings appealed, particularly if those rulings actually are reversed.
O’Mara may have decided that he has nothing to lose by aggressively challenging Judge Nelson, which may also mean that he has come to the conclusion that she will not do justice in this case. If this is indeed O’Mara’s decision, I suspect he may be correct. If so, he must also expect to have a good chance of losing the case through a biased conduct of the trial on the judge’s part regardless of the evidence. Building a strong record for an eventual appeal is a wise course of action.
I’ll not go into exhaustive detail on the writ, as it is, in most respects, identical to the original motion for a deposition of Crump denied by Judge Nelson. O’Mara builds a careful, well supported, and compelling case. The major elements are:
(1) Crump has information essential to the defense that cannot be obtained in any way other than a deposition.
(1A) De la Rionda knows how Dee Dee came to the attention of Crump and the Prosecution, but refuses to tell the Defense, thus a deposition with Crump is required.
(1B) ABC News kept only a short clip (5 minutes) of the Crump interview, therefore, Crump is the only person who can reveal information about many aspects of that interview.
(2) Crump deceived the Court, the public, the prosecution and the defense in his affidavit, therefore he must be deposed in order for the truth to be known.
(3) Crump is not a party to the case, therefore cannot be opposing counsel.
(4) Crump has no work product or other privileged protection, and even if he did, he has affirmatively and voluntarily waived that privilege in several significant ways.
(5) It is Crump’s insertion of himself into this case, his deceptions and manipulations, that have made it necessary to depose him, therefore, he should not be protected from the consequences of his own actions, and indeed, state law allows his deposition.
(6) Failing to depose Crump will cause irreparable damage to Zimmerman’s right to a fair trial, damage that cannot be addressed by appeals after the trial.
O’Mara’s motion also reveals a number of facts not previously widely known:
(1) Crump’s interview of Dee Dee was apparently conducted by phone. The entire call lasted about 26 minutes, but the portion provided to the Defense was only about 14 minutes long.
(2) Judge Nelson prevented O’Mara from questioning Crump about relevant matters telling him “these are questions that can be asked at a deposition,” and “the Court’s going to make [Mr. Crump] a witness for the purpose of taking a deposition regarding this issue. So, you can take his depo.”
(3) The Crump recording also exposes potential collusion and/or deceptions on the part of Dee Dee and/or Tracy Martin and Sybrina Fulton (Trayvon Martin’s parents):
This part of the recording also suggests that Witness 8 spoke with Tracy Martin and/or Sybrina Fulton denied in their statements to the prosecution two weeks later.
(4) O’Mara provides a section of Crump’s coaching of Dee Dee, a matter about which he lied in his affidavit, though O’Mara merely says it “contradicts” Crump’s affidavit:
.................
(5) O’Mara explained that his March 13 deposition of Dee Dee was incomplete:
Counsel for Petitioner took a partial deposition of Witness 8 on March 13, 2013 which only led to more questions and confusion as to her interaction with Mr. Crump.
As I earlier noted, it does appear that O’Mara plans a follow up deposition with Dee Dee, which, considering what has been happening, is entirely logical, but must wait for the gathering of more information, particularly that of Crump.
Though 42 pages long, the motion is readable and easily understood by the legal layman, and I recommend it to readers.
If you want to throw up, read this from Florida News today:
SANFORD, Fla. (AP) — The parents of a teenager who was fatally shot by a neighborhood watch volunteer last year have settled a wrongful-death claim against the homeowners association of the Florida subdivision where their son was killed.
The Orlando Sentinel (http://thesent.nl/YYnBB7 ) reported Friday that an attorney for Trayvon Martin’s parents — Sybrina Fulton and Tracy Martin — filed that paperwork in Seminole County and that portions of it were made available for public review Friday.
According to the newspaper, the settlement amount was marked out in five pages that it reviewed. Lower in the agreement, the parties specify that they will keep the amount confidential.
Benjamin Crump, the attorney for Trayvon Martin’s parents, declined to comment Friday. He told The Associated Press that the filing was confidential.
A telephone message left Friday evening by AP with the homeowner association’s attorney, Thomas R. Slaten Jr., wasn’t immediately returned.
Martin was fatally shot in February, 2012 by neighborhood watch volunteer George Zimmerman during a confrontation in a subdivision in Sanford, about 30 miles north of Orlando.
A month-and-a-half delay in Zimmerman’s arrest led to nationwide protests in the racially charged case.
Zimmerman has been charged with second-degree murder in Martin’s death. Zimmerman claims he was attacked and acted in self-defense, but Martin’s family claims he targeted the unarmed 17-year-old mainly because Martin was black. Zimmerman’s parents are white and Hispanic.
Under the terms of the settlement, Trayvon Martin’s parents and his estate agreed to set aside their wrongful-death claim and claims for pain and suffering, loss of earnings and expenses, the Sentinel reported.
According to a cover page attached to the settlement that was placed in Zimmerman’s criminal case file, copies of the settlement were given Thursday to Zimmerman’s attorney, as well as to the prosecutor and the judge, the newspaper reported.
Crump has previously said he intends to file suit later against Zimmerman, and the settlement specified that Zimmerman was not part of the homeowner association’s deal.
It's like Christmas all over again! They (the press) can take thinly-disguised swipes at Zimmerman, as though his side of the story doesn't even exist.
Cboldt and I have been trying to figure this thing out over here:
http://www.freerepublic.com/focus/news/3004532/posts?page=119#119
It appears that the media has a news blackout on O’Mara’s Writ to a higher court but it has run wild with a filing that nobody has seen and that the Martin attorney has withdrawn.
Sybrina and Tracy - parents of the year!
[[The parents of a teenager who was fatally shot by a neighborhood watch volunteer last year
The parents of a teenager who tried to murder an innocent neighborhood watch volunteer last year, but paid for his act with his murderous life
There- I fixed the headline-
Then why is he filing it in a public case???
My guess is that the settlement amount is a reflection of how much it would cost to defend the claim, plus any fallout from bad press - regardless of the outcome. IOW, the settlement is likely a reflection of the cost of WINNING, not the cost of losing ;-)
[[Zimmerman has been charged with second-degree murder in Martin’s death. Zimmerman claims he was attacked and acted in self-defense, but Martin’s family claims he targeted the unarmed 17-year-old mainly because Martin was black]]
That’s fine- they’ll need them oeny they get fro mthat lawsuit to pay the ‘wrongful imprisonment’ case agaisnt them and their lawyers
[[A month-and-a-half delay in Zimmerman’s arrest]]
“A month and a half delay in the arrest of someoen found INNOCENT by the police department led to nationwide protests by the black community who typically claimed the case was racially charged - fueld by a president hwo wished to falsely claim it was racially charged in order to whip the black community into a frenzy. Despite ANY evidence to support hteir claim, and DESPITE the clear facts that their son had brutally and with ill intent attacked an innocent civilian for hte purpose of murder- Prosecutors drummed up false chareges agaisnt him nd judges in Florida REFUSED to remove them from the case for prosecutorial misconduct”
Fixed that line too
The Sentinel reported on Friday that the settlement amount was crossed out of paperwork filed at the Seminole County Courthouse. Later in the day, the document appeared to have been withdrawn from public view.
Although a cover page indicated copies of the settlement were given to Zimmerman’s lawyer and the judge presiding over the criminal trial, Vincent told Reuters that the defense team did not receive its copy.
http://news.yahoo.com/trayvon-martins-family-settles-wrongful-death-claim-report-232428707.html
He pulled another DeeDee and the media fell for it. He filed a document for the publicity. Then before anybody could examine it, he withdrew it claiming confidentiality. How juvenile.
Crump giveth and Crump taketh away.
We may see it as juvenile but it seems to be working with the press, and the judge is allowing it. Is Crump that clever or is he being coached?
Neither has to be true, provided the press is willing to carry your water.
As for the judge allowing it, she can no more prevent Crump from filing something that doesn't belong, than she can prevent the state from filing an unprofessional, insult-laden, unresponsive pleading. Her function is to process the material that is put in front of her, not to compose it.
Not high-fiving the judge, by the way, but it's not her fault that Crump used the criminal trial as a press release facility.
Even a coach needs a coach sometimes. The DeeDee strategy worked for him a year ago. Why not try it again.
I'm waiting for him to claim that the settlement agreement is still "a minor chile", and would like its privacy, and should have no questions asked of it.
I'm sure Matt Guttman and ABC will get every word of it on its self-destructing tape.
Agreed. This case was a set up from the beginning. Zimmerman is never going to get a fair trial (not that there ever was a need for one). The best O'Mara can do is get as much as he can out there for all to see now and then hope for something better in the inevitable appeal.
Remember that Zimmerman is charged with second-degree murder because that was the most he could be charged with without a grand jury hearing the case. The prosecutor could have taken it to a grand jury and asked for a charge of first degree murder but was plainly afraid that the grand jury would not charge Zimmerman with anything. In that case, there would be riots.
I suspect the actuaries looked at those considerations as well.
The reason he filed it is very simple. The shiite hit the fan this week when Zimmerman’s attorney submitted his appeal to the 5th District Court of Appeal seeking to force Judge Nelson to allow him to depose Crump, despite her two rulings against him on that issue (after she was the one who labeled Crump a “witness” and suggested that O’Mara depose him in the first place).
In O’Mara’s appeal, he made it clear that he does not believe that Crump is entitled to any attorney/client privilege as “opposing counsel” in the matter of Witness 8, the girl who was supposedly on the phone with Trayvon at the time of the incident. Judge Nelson decided in her first ruling on this issue (on the very day that Crump was to be deposed) that Crump was indeed opposing counsel and ordered that Crump could not be deposed, but that was before the affadavit he provided in lieu of deposition was proven to be false and inaccurate. Once it was found that the affadavit was not accurate, O’Mara made another request to depose him, which was denied by the judge without explanation.
So, the filing of the paperwork for this lawsuit (and the leak of that information by someone attached to Crump) was strategic - he is seeking to show that he is in fact entitled to “opposing counsel” status in that he has engaged in an actual lawsuit stemming from the incident at the Retreat at Twin Lakes. Of course, O’Mara’s motion goes way beyond that - in that he argues that EVEN IF Crump is entitled to protection as opposing counsel, that would not apply to his interactions with Witness 8, since he affirmatively waived his work product privilege (if it existed) for his interactions with her.
This is a kangaroo court, and the DCA had better clean this up.
<>This is a kangaroo court, and the DCA had better clean this up.<>
And here’s their mop and bucket to start with:
PETITION FOR WRIT OF CERTIORARI
http://www.gzdocs.com/documents/0413/petition.pdf
http://www.gzdocs.com/documents/0413/appendix.pdf
There is a "process issue" as to the timing of deciding errors made by the trial court. The legal system is set up on the awareness that no court is perfect, and errors, sometimes very serious errors, are part of everyday legal activity. But the appeal process doesn't start with each allegation of error, so not all errors below are reviewable during the "trial process" (scare quotes to let me explain that I view "trial process" as everything in between the indictment and the eventual disposition of the charge by the trial court).
For errors by the judge or prosecution as to providing evidence to the accused, the remedy is just to reverse the conviction, and allow them a new trial under terms that were previously disagreeable to the trial judge.
O'Mara is going to have a potload of issues on appeal, if this gets that far. I thing the DCA is going to reject his petition to step in (now) and order Judge Nelson to withdraw her order prohibiting O'Mara from deposing Crump.
By the way, I agree that this is a sham prosecution. Seems the state is rather fond of putting on a good show when the trial is a political one. It'll be like the banks in Cyprus, at some point, an overwhelming fraction of the public will lose faith. The system will be seen as corrupt and dishonest, and no amount of protest by the judges, politicians, and lawyers will overcome the loss of trust.
I am wondering if Zimmerman is found not guilty, can the Martins go after any money Zimmerman may get from his lawsuits against ABC? Could this end up like the OJ Simpson case where Simpson was found not guilty of murder by the jury but was found guilty in the civil case. Even if Zimmerman is found not guilty of murder, leave it to the Martins to go for any money Zimmerman may get from his lawsuits against his defamers. All the Martins need is the right jury.
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