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Appeals Court Reverses Zimmerman Judge: Crump to Be Deposed

George Zimmerman has won his appeal of Judge Debra Nelson's denial of his request to depose Martin family lawyer Benjamin Crump about the interview of Witness 8, the woman on the phone with Trayvon Martin shortly before the shooting. (Background here.)

The opinion is here. Crump had intervened as a third party asserting various privileges. The appeals court noted he is not an attorney in the case (and not a prosecutor), and waived any privilege he might have had by having third parties from the media (ABC) present at the interview.

Crump said last night he will sit for the deposition. [More...]

From the ruling:

First, the fact that Crump represents Martin's family does not make him "an opposing counsel." As acknowledged by Crump in his affidavit, he was not acting as a lawyer for the State or the defendant, nor could his interview of Witness 8 be found to constitute trial preparation in the pending criminal case below.

Second, we also conclude that any testimony given by Crump as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.

Finally, although not a basis of the trial court's ruling , we reject any suggestion that Crump's affidavit would serve as an adequate substitute for a deposition. See Patrick v. State, 104 So. 3d 1046, 1057 (Fla. 2012) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.")

As to Witness 8:

The information provided by Witness 8 is relevant to the determination of whether Zimmerman is guilty of second degree murder (or a lesser included offense). Should Witness 8 testify at trial, Zimmerman is entitled to discover whether such testimony is consistent with prior statements made by Witness 8 to Crump and whether such testimony was in any way influenced by the manner in which the interview in question was conducted.

The scope of the deposition:

[A]ny deposition of Crump is to be limited to inquiry of circumstances surrounding the interview of Witness 8 and the contents of such interview. Defense counsel may not inquire into Crump's mental impressions regarding Witness 8, nor may counsel inquire as to the reasons why Crump conducted the interview in the manner in which he did. Additionally, we believe the work product privilege precludes defense counsel from making inquiry as to the reason(s) Crump attempted to locate Witness 8 and the methods employed to do so.

In other news, the court reversed Judge Nelson in a self-defense case last week, Spurgeon v. State, in which she had refused to instruct the jury on self-defense. The court reiterates the minimal showing the defendant must make to get the instruction:

A trial court's decision to give or withhold a proposed jury instruction is generally reviewed for an abuse of discretion. Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011). However, the trial court's discretion is more restricted in criminal proceedings "because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law." Id.

The trial court should not weigh the evidence when determining whether to give the requested instruction. Id.; see also Pope v. State, 458 So. 2d 327, 329 (Fla. 1st DCA 1984) (stating that "it is axiomatic that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such an instruction, and the trial court may not weigh the evidence in determining whether the instruction is appropriate") (citing Smith v. State, 424 So. 2d 726, 732 (Fla. 1982)). The jury — not the trial judge — decides the weight of the evidence. Vila, 74 So. 3d at 1112. "The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed." Id.

Additionally, a defendant is not required to testify at trial to receive a jury instruction on self-defense. Sipple, 972 So. 2d at 915. A defendant's statements admitted into evidence at trial may be sufficient evidence for a self-defense instruction. Id. The cross-examination of State witnesses can also support a claim of self-defense. Id. at 916.

Finally, if a jury can reasonably infer from circumstantial evidence presented at trial that the defendant had the state of mind necessary for self-defense, then the defendant is entitled to a jury instruction on self-defense. Johnson v. State, 634 So. 2d 1144, 1145 (Fla. 4th DCA 1994).

The next hearing will be June 6. Among the items on the agenda: A Frye hearing on voice and speaker identification opinion testimony.

Zimmerman's defense team announced its latest fund-raising numbers today: Since its request last week for funds, it has raised $46,000.

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  • Display: Sort:
    From a non-lawyer... how does having one's (none / 0) (#1)
    by Cashmere on Tue Jun 04, 2013 at 04:55:55 PM EST
    decisions as a judge reversed impact the judge?  Thanks

    Usually not at all (none / 0) (#3)
    by scribe on Tue Jun 04, 2013 at 06:50:53 PM EST
    unless the judge is one of smaller character (there are more than a few of those) and then they'll get mad about it, make sarcastic comments about being reversed (off the record, where no one can use it against them) and making clear they disagree with their appellate colleagues.

    Then again, a sure way to p*ss off a judge is to argue to the effect of "judge, why are you ruling this way against me?  The appellate court just reversed you on the same thing last week."  That's a bad idea for two reasons - first, you'll p*ss off the judge.  (It is sometimes called "judge baiting" in appellate opinions denying relief to the party who did it.)  Second, if the judge has even a modest amount of brains, he/she will find an alternate way to get to the same result, preferably (to them) one where the standard of review on appeal is much harder to overcome and they'll salt the transcript - when the judge talks, everyone else is supposed to shut up - with verbiage making clear they learned from the reversal and there's no way the appellate court should reverse this time even if the result is the same.

    So, in this context, Zimmerman's counsel should just prepare the case and try the case acting outwardly like the reversal in that other case does not exist, while being very aware of and crafting his arguments to fall into the same analytical place as the defendant who just won the reversal.

    Parent

    Thanks! I am glad I am not a trial lawyer! (none / 0) (#4)
    by Cashmere on Tue Jun 04, 2013 at 08:28:31 PM EST
    Thanks!  I am glad I am not a trial lawyer.w  I doubt I would have the necessary "restraint".

    Parent
    Do (none / 0) (#5)
    by ding7777 on Tue Jun 04, 2013 at 10:36:27 PM EST
    reversals have any effect on the ABA rating given to judges?

    Parent
    Every time I read this: (none / 0) (#2)
    by DebFrmHell on Tue Jun 04, 2013 at 05:09:07 PM EST
    Second, we also conclude that any testimony given by Crump as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.

    Seni and Matt made the news again.  If ABC only kept the 5 min clip, I would love to find out when the remainder was erased.  Why did they never get deposed? Just curious, not looking for an argument.

    As an Officer of the Court, a civil attorney, heck any outside attorney, should not insert himself in an ongoing criminal investigation. Especially at a time when charges had not been filed.  

    It stinks.  Strictly, my opinion.

    zimmerman (none / 0) (#11)
    by morphic on Wed Jun 05, 2013 at 09:59:42 PM EST
       You would think if someone thought they had information pertinent to a case, they would turn it over to the proper authorities to investigate, and step aside.

    Parent
    I think everything about Crump (none / 0) (#12)
    by TeresaInPa on Thu Jun 06, 2013 at 06:03:34 AM EST
    has stunk from the beginning. He seems to be a professional race-baiter. I am wondering if setting up a civil law suit against the city police force, after the criminal trial, has been his purpose all along.

    Parent
    June 6 (none / 0) (#6)
    by Pugfrench on Tue Jun 04, 2013 at 11:57:11 PM EST
    Jeralyn did you see the sealed motion to keep some witnesses anonymous? Is that common? Under what conditions could a witness be kept confidential? And why would the motion be sealed instead of redacted? I've tried to find background info but the only cases I could find had to do with prosecution witnesses and organized crime, nothing about defense witnesses.

    how could I see it (none / 0) (#7)
    by Jeralyn on Wed Jun 05, 2013 at 02:21:09 AM EST
    if its sealed? (Answer is no, I have not.)

    As to why it is sealed instead of redacted, I assume its because redaction wouldn't be sufficient to shield the protected information.

    For the rule on this, see Fla. R. Jud. Admin. 2.420.

    Parent

    also (none / 0) (#8)
    by Jeralyn on Wed Jun 05, 2013 at 02:31:00 AM EST
    see Fla. R. Crim. P. 3.220

    (e)  Restricting Disclosure. --The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.


    Parent
    Thanks. I just meant (none / 0) (#9)
    by Pugfrench on Wed Jun 05, 2013 at 06:51:06 AM EST
    Did you see the reference to it in the motion. Is that a common motion or unusual? Is it granted often? And is it unusual for the defense to make this motion?

    Parent
    And (none / 0) (#10)
    by Pugfrench on Wed Jun 05, 2013 at 07:00:59 AM EST
    If the motion is granted who is allowed to know the identity of the witness? Do the prosecutor, defense counsel, and judge get to know the name? Is the identity hidden from  just the public? The jury? The defendant?

    Parent