Judge Nelson Properly Denied the Defense Motion to Depose Benjamin Crump in Trayvon Martin Case

February 25, 2013

Monday, February 25, 2013

Good afternoon.

I write today to clear up some confusion exhibited in comments over the weekend regarding the basis for Judge Nelson’s order denying the defendant’s motion to depose Benjamin Crump, the attorney who represents Trayvon Martin’s parents, Tracy Martin and Sybrina Fulton. As all of you know, he located Witness 8, who is referred to as DD to protect her identity and privacy. She was Trayvon’s girlfriend and was talking to him when the defendant accosted and attacked Trayvon moments before shooting him to death.

Crump recorded a telephonic interview with her from his office in which she reported that Trayvon told her that he was being followed by a “creepy man” in a vehicle as he was walking home. He ran to get away from the creepy man and thought he had succeeded, but the creepy man suddenly appeared on foot and close by.

She heard the following exchange:

Trayvon: “Why are you following me for?”

Old Man: “Why are you here?”

She heard what sounded like a physical struggle.

Trayvon: Get off!

Then she lost the connection.

DD is an important witness for the prosecution because her testimony contradicts the defendant’s claim that Trayvon hunted, confronted and attacked him as he was walking back to his parked vehicle.

The defense clearly has a proper basis to depose DD and no doubt will eventually do so, since the prosecution has listed her as a Class A witness (major witness) on their witness list. The defense has delayed taking her deposition claiming that it must obtain other unspecified information prior to the deposition. For example, the defense seeks to know her address prior to the deposition.

Judge Nelson denied that request for the second time at the hearing on Friday reiterating that they can ask her that question at her deposition.

To understand why the Court denied that request, one need look no farther than the outrageous and unlawful harassment and doxing inflicted by the defendant’s supporters on the defendant’s cousin, who accused him of molesting her over an 8-year period when they were children, and two innocent girls named Dee Dee in Miami, whom they erroneously believed to have been Trayvon’s girlfriend.

The defense also seeks to depose Benjamin Crump to inquire into how he discovered who she was, how he set up the interview and how he conducted it. He has already provided that information to defense counsel in a 15-page affidavit, but they seek further inquiry.

I do not believe there is any legitimate legal issue whether Benjamin Crump is an attorney who acted in his official capacity as counsel for Trayvon’s parents to locate DD and interview her to collect and preserve information to support a potential lawsuit against the defendant for causing the wrongful death of their son as well as to support a possible murder charge against the defendant. There simply is no question that his interest in representing Trayvon’s parents is in opposition to the defendant’s interest in being granted immunity from civil and criminal prosecution and that was just as certain before the defendant was charged as it is today. Therefore, what he did to secure DD’s interview and all of his notes and research regarding it are attorney-client work product and protected from disclosure.

Judge Nelson reportedly also found that he was acting as “opposing counsel,” a finding that provides additional legal justification to shield him from submitting to a deposition since that is prohibited, subject to a few limited and inapplicable exceptions. There is no serious question that he was acting in that capacity even though no criminal charge or civil suit had been filed.

Either way I do not see a significant legal issue to appeal.

If you want to read an excellent legal argument regarding this issue, check-out Bruce Blackwell’s memorandum.

Meanwhile, trouble is brewing at the Treehouse where Sundance is calling for Don West to take over the defense. According to his open letter to Mr. West, he believes O’Mara is incompetent and DD does not exist. I do not link to that site, but Opera Carla posted a copy of the letter in the comments thread to my Many Blessings post.

The Attorney-Client Work Product Rule and the Trayvon Martin Murder Case

December 3, 2012

Lonnie Starr said in response to shannoninmiami this morning at 8:22 am in the comment thread to Tempest in a Teapot:

“In any event, anything that amounts to the work product of the attorneys is not discoverable. Which is why we can’t really know where this case is. We have a lot of the raw materials, but we can’t know how they are treating it, because much of what they’re working on, is held in related materials or work product of other actors they’ve enlisted. So their work lines are off our scopes.”

As he so often is, Lonnie is correct.

The attorney-client work product privilege generally protects from disclosure an attorney’s notes, musings, research, drafts, communications with experts, and strategizing about a case. Therefore, we will never know for certain all of the identities of the investigators and experts with whom the defense and prosecution lawyers consulted, what they discussed, and the conclusions they reached. Their identities, discussions and any notes memorializing those discussions are protected by the attorney-client work product privilege and not discoverable.

The big exception, of course, is all of the materials in the discovery that have been provided by the State to the defense pursuant to the criminal rules of discovery and released to the public pursuant to Florida’s Sunshine Law with civilian witness identities and contact information redacted. Regrettably, phone records and subscriber information also has been withheld from the public for privacy reasons thereby preventing us from identifying who called the defendant and whom he called before and after he killed Trayvon Martin.

Note that the discovery materials only reveal the evidence the State has in its custody, possession and control. The materials do not include the prosecution’s theory of the case or strategy for presenting the evidence at trial. That information is not in the discovery because it is exempted from disclosure by the attorney’s work product privilege. In this instance, I am referring to the prosecutor’s work product privilege and it extends to protect the same information from disclosure that is in the possession, custody and control of its agents; namely, investigators and experts.

When a lawyer decides to call an expert to testify at the trial, the expert’s report and the basis for his or her opinion are discoverable. This usually consists of benchnotes and possibly a machine printout depending on the nature of the analysis conducted, if the expert is a laboratory analyst. If psychological testing is involved, the tests and scores are discoverable. The lawyer’s and the expert’s theory regarding how the expert’s opinion fits into the overall theory and strategy of the case remains protected and is not discoverable.

There are two important exceptions to the work product rule.

(1) If a prosecution expert has performed a test and obtained an exculpatory result, the prosecution must disclose the result and the expert’s identity to the defense. This rule is based on the Due Process Clause of the Fifth and Fourteenth Amendments and Brady v. Maryland, 373 US 83 (1963), that require the prosecution to disclose all exculpatory evidence within its custody, possession or control because the defense generally lacks the resources and ability to compete with the prosecution and discover the evidence on its own. For example, the defense does not have its own police department and a crime lab available to independently investigate and test evidence.

(2) If the defendant is asserting an insanity or diminished capacity defense, defense counsel must disclose any unfavorable opinion held by an expert employed by the defense and the expert’s identity to the prosecution. This is a fundamental fairness rule to prevent the defense from concealing inculpatory evidence regarding a mental health defense in which the only evidence available, so to speak, is locked inside the defendant’s head.

We can make reasonably accurate guesses regarding the concerns and strategies of counsel for the defense and prosecution and I suspect we have thought of some possibilities that have not occurred to them. However, we will have to wait until trial when the box is unwrapped, opened, and we finally get to see what is inside.

For more information on the work product rule, please go here.

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