“There is a tide in the affairs of men, which, taken at the flood, leads on to fortune…”
William Shakespeare: Julius Caesar, Act IV, Scene 3
Oh my. On April 5, 2013, in Update 26, I addressed O’Mara’s request for a writ of certiorari to depose Benjamin Crump. Finally, the District Court of Appeal for the Fifth District has handed down its decision.
The major elements of that request were:
(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.
The writ was necessary because Judge Debra Nelson initially told O’Mara he would be allowed to depose Crump, but just before that deposition was scheduled, Crump filed an affidavit and asked Nelson to accept that in lieu of a deposition. Nelson reneged on what she told O’Mara and accepted the affidavit, refusing to change her mind even when O’Mara proved Crump had lied in that affidavit.
Among the most significant issues upon which Crump and Nelson hung their hats is the idea that Crump was opposing counsel and that he had a work project privilege that would prevent his being deposed. In Update 26, I wrote:
In the Crump motion, either Crump is opposing counsel or he is not. Either he has some privilege under the law or he does not. The evidence produced by O’Mara and Crump’s actions and statements make clear that he is not opposing counsel, that he has willingly waived any possible privilege. The evidence also makes more than clear that Crump has made himself a witness, and more, a racial provocateur whose statements and agitation have led directly to Zimmerman’s arrest and prosecution.
Despite the obvious evidence and law that would, to the reasonable observer and jurist, command a deposition of Crump, Pam Bondi, the Florida State Attorney General, weighed in against the deposition. In Update 27, I wrote:
April 24, 2013: Florida State Attorney General Pam Bondi filed a response to O’Mara’s petition for a writ of certiorari. This was apparently written by Assistant AG Pamela Koller, but went out over Bondi’s signature.
This is, in itself highly unusual. The attorneys general of states usually involve themselves only in cases directly involving the business of their state, and having the greatest importance. Arguing against cert in what is, in reality and with politics stripped away, an unremarkable criminal matter, suggests nothing less than substantial and suspect political involvement. Having appointed a special prosecutor, should such matters not be hers with which to deal? Does this not suggest a lack of trust of the special prosecutor on Bondi’s part?
Bondi‘s arguments are likewise pedestrian, focusing around claiming that cert should only be granted for the most serious matters, matters that absolutely cannot be solved post-trial. She also essentially argues that lawyers should virtually never be deposed, trying mightily to label Crump as opposing counsel when he plainly, and by his own admission, is not and has no privilege to assert.
Another indicator that Bondi, who is reportedly a friend of Benjamin Crump, is deeply politically involved is her statement of “fact” about the incident, which repeats the narrative with all of its false assertions, right down to Martin’s being “profiled” and carrying tea and Skittles, and the obviously false claim that Martin was “…trying to return to his home.” This has been disproved by physical evidence and Dee Dee’s statements wherein Martin repeatedly told her he was not trying to run home. Anyone familiar with the case should know this. This statement of facts seems a near copy of the terribly defective affidavit I covered in Update 2.
In addition, Bondi minimizes the substance of O’Mara’s claims by not accurately representing the evidence of Crump’s lying about his recording of Dee Dee as presented in O’Mara’s petition, giving short shrift to the existence of a recording that makes it clear that Crump was engaging in substantive matters with Dee Dee when he claimed otherwise.
The Court of Appeals did not agree with Bondi, Crump or Nelson. From the decision:
We conclude that Zimmerman was entitled to take a limited deposition of Crump to inquire as to the substance of Crump’s interview of Witness 8 and the circumstances surrounding the interview. We grant the writ because we would be unable to ascertain the degree of harm resulting from the wrongful denial of this discovery in a plenary appeal.
The Appeals Court noted that Nelson found Crump “an opposing counsel,” and that his work was “protected work product” because he was representing the Martin family in “possible future civil litigation against Zimmerman.” The Appeals Court was brief and to the point:
We respectfully disagree with the trial court’s analysis. 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.
Don’t mistake “respectfully” for admiration of Judge Nelson. Here, it’s merely polite legal prose. The Appeals Court cited the relevant precedent, and moved on to the second primary issue:
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.
The Appeals Court also noted that Witness 8’s testimony is highly relevant, and that 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.
Reading between the lines, it’s clear that the Appeals Court accepted O’Mara’s presentation and knows what Crump is up to. In what might reasonably be read as a substantial slap in the face of Judge Nelson, the Appeals Court wrote:
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.
The decision listed several limitations on the deposition, and further noted:
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 described above.
Crump, Nelson and Bondi lost on every point of law and reason, and the Appeals Court did not attempt in any way to salve their feelings. In this case, one might become used to Bernie de la Rionda’s unprofessional and petulant legal writings and expect some of that tone here. The Appeals Court chose instead to write as did O’Mara: with brevity and fidelity to precedent, fact and the truth.
When completely overturning a judge in a case of national importance, an appeals court might soften its language and give the judge some comfort thereby. Not here.
Most damning is the Appeals Court’s notation that Crump’s affidavit was not “an adequate substitute for a deposition.” In many ways, this goes to the heart of Judge Nelson’s legal reasoning and intentions. The Appeals Court obviously recognized that Nelson was trying to protect Crump and limit O’Mara’s discovery. Their one sentence citation of precedence, which might be delivered in a first year law class, is a substantial rebuke of Nelson:
Cross-examination [of Crump rather than his false and self-serving deposition] is the principal means by which the believability of a witness and the truth of he testimony are tested.
While the decision does not specifically call out Crump for his lack of veracity–at least not explicitly–it is clear that the Appeals Court fully accepted O’Mara’s contention that Crump had not been truthful, that he had inserted himself into the case, and that his legal citations had no merit. By allying themselves to Crump and his deceptions and racial manipulations, Bondi, de la Rionda and Nelson demonstrated their own lack of integrity and their own poor–and potentially partisan–grasp of the law.
Another important issue is the Appeal’s Court’s complete acceptance of O’Mara’s argument that any harms resulting from Nelson’s denial of the deposition cannot be healed on appeal should Zimmerman be convicted. This calls into question her judgment and her ability to conduct a fair trial in a very direct and unsparing way. Why, one might ask, should any judge fail to recognize this simple fact? Doesn’t such failure to recognize the law and precedence give cause for concern about Judge Nelson’s basic competence and ability to conduct a fair trial? After all, the issues here are not highly technical, obscure issues of law for which there is no precedence.
This decision raises several additional issues:
The Appeals Court has given Judge Nelson a bright line to follow in this deposition, essentially removing much of her discretion while simultaneously appearing to leave it untouched. They’ve given her a warning. If she tries to make this deposition difficult for O’Mara or to irrationally limit his ability to conduct it, it would appear that the Appeals Court will deal with that in short order.
Should O’Mara request a continuance to conduct this deposition, it will be difficult indeed for Nelson to justify not granting it. I can’t imagine Crump being cooperative in this, which would likely make a continuance necessary and entirely reasonable. It’s possible that Crump will give the appearance of cooperation, but complete honesty and cooperation would seem to entail admission of perjury and repudiation of The Narrative and all of the financial and reputation benefits that would provide to Crump. Unlikely.
We now have an interesting situation. When confronted with his lies, Crump has few options. He can try to dissemble and avoid answering, he can take the Fifth, or he can just shut up and refuse to cooperate. I suspect he may end up trying all of these options. In any case, this deposition will absolutely not be good for the prosecution, the Scheme Team, the Martin Family, or The Narrative. Interestingly, this may, in some ways, rehabilitate Dee Dee, and make at least some narrow portions of her testimony–those relating to the Scheme Team’s manipulation of the legal system and public opinion–more reliable.
While it is possible that some significant discoveries will be made as a result of this deposition, one should not expect such revelations nor make too much of them. Despite the fact that Crump, the state AG, and special prosecutor and Judge Nelson did their best to protect Crump and The Narrative, the Appeals Court has reasserted the rule of law. How far that assertion of integrity in the law extends remains an open question, but I suspect Crump, de la Rionda, Corey and others must now consider the possibility that the press cannot protect them, and they might well find themselves in career and legal hot water as the case progresses.
I have little doubt there are more surprises to come in this case. The actions of Crump, de la Rionda, Bondi and Nelson might be read to indicate great fear about what a deposition of Crump might reveal. Why else would he submit a provably false affidavit? We surely don’t know all of the evidence, and I fully expect the prosecution’s arrogance to lead them to make significant mistakes, opening doors to the defense the prosecution absolutely does not want opened.
It’s also possible they’re too arrogant to understand and act upon the shot the Appeals Court has fired across their respective bows. Shakespeare’s admonition means that we must take advantage of our opportunities when they arise. I expect O’Mara and West to take full advantage of the opportunity the Court of Appeals has handed them.