The 5th Court of Appeals has agreed to hear the Case

UPDATE!

There has been some question as to whether Crump via Blackwell will be able to respond, as the State is the one addressed in the Order to Show Cause from the 5th District.  The answer is yes, as far as I have been able to determine, an amicus brief can be filed by Blackwell, provided the Court will accept it, he must first file motion requesting permission.

The is also a question if the Order to Show Cause by the 5th District would stay the proceedings automatically, which is no.  The Defense would need a Motion to Stay and file it before Judge Nelson, who can deny the motion.

On April 4th, the Defense team had filed a Petition for a Writ of Certiorari, looking to overturn Judge Nelson’s order of protection, preventing a deposition of Benjamin Crump, the attorney for the Martin family. Today the Appeals Court has decided to hear the case.  It has given 20 days for any opposition to file its objection and 10 days for the Defense to reply.  This is an is a huge victory for the Defense, as this is an unusual step for the Appeals Court to hear this type of appeal pre-trial (most of these appeals are done after a verdict, when the Appeal Court can more easily determine not just error, but irreversible error(harm) and its consequences).  You can read the order by the court here:

http://www.gzdocs.com/documents/0413/5dca_order.pdf

The 5th Circuit accepting to hear the case does not guaranty that the Defense will get the outcome that it desires as there is precedent for a case with similar circumstances that the Appeals heard but denied. The case Eutsay vs. State of Florida, in this case Darnell Eutsay, Petitioner, is the defendant in a pending prosecution for first-degree murder. He seeks a writ of certiorari to quash an order denying his motion to compel discovery and request for sanctions.  The court felt that the remedy requested by the Petitioner would not be remedied by the Certiorari and the other discovery violations did not prove irreparable harm, that could not be addressed by another trial. (Hat tip to MJW) to read the case: http://scholar.google.com/scholar_case?case=9059062231580367501&hl=en&as_sdt=2,45

“…we cannot exercise certiorari jurisdiction unless Petitioner has shown that the trial court departed from the essential requirements of law in denying his motion to compel discovery, and that this ruling causes him irreparable harm for which there is no adequate remedy on appeal.”

This will be the determining question, whether the relief seek is granted

The Appeals Courts has given Crump, BDLR and Judge Nelson,  20 days to respond, so there might be 3 separate arguments as to why the Writ should be denied, though it is not unusual for Judges not to file a respond, so we will probably have 2 responses to this to look forward to in the next couple of weeks.  The Defense will get 10 days to respond to any argument rendered against the Writ.

Advertisements

22 Comments

    • I agree, the case just provides a framework for a denial. The cases also are different as to the remedies sought. Eutsay, wanted sanctions and to compel discovery, which was later produced.

      GZ’s case if trying to compel the discovery (Crump’s deposition) as he should have been allowed by law, and it is not the State that is blocking said discovery but another judges decision, so the State cannot at a later date provide it, since the State has not deposed Crump, either.

  1. “At the very least the Writ will mean that the trial will have to be pushed back, as the deadlines set will not be reachable.”
    I believe you are correct . MOM asked for more time and was denied. Depos. are on hold. and discovery still is an issue.
    As far as Motion to Stay? It can be granted if the State agrees. I know…don’t laugh.
    Or GZ could be grant the stay because of the above mentioned issues. So Nelson may grant a stay. Either way MOM is depending on some inconsistent people. And depending on how this Write moves, a stay may have to happen.
    As far as the writ? I am staying optimistic but The EUTSAY v. State of Florida case
    was denied the writ by the judge determining:
    “Petitioner is required to proceed to trial without the benefit of mandatory discovery and he preserves this issue at the time of trial, he will be entitled to a new trial with the benefit of the denied discovery unless the State can establish that there is no reasonable possibility that the trial court’s error contributed to the verdict. See DiGuilio, 491 So. 2d at 1135.

    I am unsure if GZ will win the appeal. Because as long as there is relief another way appeals courts usually don’t over turn lower courts rulings. BUT the good news is MOM is preserving error for, during, and after trial.
    MOM in Writ said:
    “the Petitioner will be exposed to irreparable harm, as there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings – an issue that cannot be corrected on post-judgment appeal.”
    I am unsure if that will satisfy the appeals court need to show harm under the precedence.
    This puts the State in a pickle either way.

    If this fails can’t MOM file a Writ of Mandamus?

    • IMO if this Writ fails, a Mandamus will fail for the same reason. The problem is since Crump is not part of the record, MOM cannot use it in an Appeal after a conviction. Unless, MOM discovers some new evidence of Crump’s complicity, he will not be able to argue that the Crump deposition would have impacted the case at a post-conviction appeal.

      You are right the State is in a pickle, they need Witness 8, but they need to establish proper provenance to use her testimony. Crump has f—ud that up, without his deposition, Witness 8’s will probably not be able to testify, no matter how much BDLR flings his arms. Now that the Affidavit has been shown to be defective, the State knows that Crump will have to be deposed, I am looking forward to reading their objection, as it will affect their case.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s