Court of Appeals grants writ permitting defense to depose Benjamin Crump

June 3, 2013

Monday, June 3, 2013

Good afternoon:

The Court of Appeals granted the defendant’s petition for a writ of certiorari. Therefore, defense counsel will be permitted to depose Benjamin Crump. However, the scope of inquiry is strictly limited as follows:

In concluding that the trial court erred in denying Zimmerman an opportunity to depose Crump, we caution that any 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.

The deposition contemplated by our opinion should be relatively short and straight forward. We are confident that the trial judge will be able to take the steps necessary to ensure the deposition is limited to the subject areas describe above.

This is generally the subject matter that Crump covered in his affidavit.

The Court of Appeals is saying that Judge Nelson should have permitted defense counsel to use the deposition to cross examine Mr. Crump about the information in his affidavit.

The opinion is a per curiam opinion, which means that no judge wanted to take credit for writing the decision, even though all agree on the result. For all we know, it may have been written by a court commissioner.

I disagree with the portion of the opinion where the Court concludes that Benjamin Crump is not “opposing counsel.” The Court’s conclusion is supported by the case cited, however, it is a civil case and the vast majority of cases involving depositions are civil cases.

This is a criminal case, however, in which Benjamin Crump must wait to file his wrongful death suit against the defendant until after he is convicted. Note, for example, that the defendant’s defamation suit against NBC has been stayed pending the outcome of the criminal case.

To say he is not opposing counsel is a hyper technical dodge that ignores the reality of civil cases arising out of criminal cases in which lawyers representing victims of violent crimes or their survivors may from time to time assist the police and prosecution to put together a case against a defendant, ride on the coattails of a successful prosecution, and sue the convicted defendant who cannot then deny liability.

The Court of Appeals missed or deliberately ignored that important distinction.

I also disagree with the manner in which the Court casually dismissed the work product argument by saying Mr. Crump waived the work product privilege by inviting members of the press to attend the interview.

Mr. Crump invited two members of the press to listen in on the interview so that there would be other witnesses present and he would not find himself in a situation in which he might become a witness in his own case and have to withdraw as counsel for his clients. He did the right thing.

One of the requirements to depose a lawyer is that the party who seeks the deposition must first exhaust other means to obtain information and defense counsel did not do that. Yet, the Court of Appeals ignored that.

No wonder none of the judges wanted to take credit for this decision.

I expect defense counsel will push hard against the boundaries set by the Court of Appeals because they appear to be determined to portray Benjamin Crump as an evil mastermind who invented Dee Dee as part of a conspiracy to shakedown insurance companies for money at the expense of convicting an innocent man. This is utterly ridiculous treehouse madness, I know, but it is what it is.

There will be objections and Judge Nelson will issue rulings on those objections restricting the interrogation to those boundaries. Defense counsel will scream foul loudly and publicly in hopes of poisoning the jury with more “evidence” of a conspiracy.

Whether we will hear more about this remains to be seen, but the Court of Appeals decision has not helped matters.


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What does Shellie Zimmerman have to say about the shooting

June 2, 2013

Sunday, June 2, 2013

Good afternoon:

I have a short article today to serve as food for thought.

Many of you may have missed it at the beginning of the May 28th hearing, but Judge Nelson ruled that Shellie Zimmerman will have to submit to a deposition by the prosecution in her husband’s case. Shellie Zimmerman is charged with perjury for lying under oath about her husband’s assets at his bond hearing.

In support of his request BDLR told Judge Nelson that she had appeared for her deposition with her attorney, Kelly Sims, and she cooperated for the first 20 minutes or so when defense counsel, O’Mara and West, interrupted the deposition to confer with her attorney outside the room. Following a short meeting, her lawyer advised that she was going to assert her 5th Amendment right to refuse to answer any other questions. That ended the deposition.

She will still be able to assert her 5th Amendment right to remain silent in response to any question asked. BDLR will then have the option to certify the transcript of any questions to which she pleads the 5th and ask Judge Nelson to review her claim and order her to answer, if she determines that she cannot claim the Fifth.

In support of the State’s motion to compel Shellie Zimmerman to submit to deposition, BDLR said:

She has information germane to this case in that she was present when the defendant made statements, not just to her — there’s no husband wife privilege — he made statements to other people when she was present, and she is also germane to what happened after the shooting itself.

Intriguing situation that suggests to me that the State may have promised her use immunity. That would be a promise not to use anything she says against her, so long as she answers the questions truthfully.

Such a promise would have no impact on the perjury case, even if she is questioned about it, so long as BDLR can show that the State did not use any of her answers to prosecute her. In other words, the prosecution would have to show that they relied exclusively on evidence that they already had before the deposition.

I do not believe they will have any trouble doing that and probably have already segregated the evidence they have against her for perjury in a separate file.

Now what do you suppose this “cooperative witness” has to say?

FYI: Here is a link to the Florida Rules of Criminal Procedure. The rule on depositions is 3.220 (h), at page 149.


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