The Petition for a Writ of Certiorari

April 11th will mark the 1 year anniversary of the arrest of George Zimmerman for the death of Trayvon Martin. It has been a year full of twist and turns in the case, but as the bust the anniversary of Trayvon Martin have shown, the public and the nation appear ready to move on. Last month’s commemorations and remembrances of the actual event that brought so much attention, did not have the intensity, participation or effect, to a tragedy that had everyone from the President-on down, talking about.

As the trial approaches and more information is available, the public seem to have lost interest, and while still divided most are willing to let the Justice system do its work and settle the matter. That is the subject of this post, the workings of the Justice system.

On April 8th, the 5th Circuit Court of Appeals, agreed to look at the Petition that the Defense had filed. This is on itself a minor victory for the Defense team as pre-trial Appeals are rare. This does not mean that the Court is ready to rule in favor of the Defense, but it is asking the Prosecution to state why it should not grant the Writ and allow the Defense to depose the Attorney for the Martin Family Benjamin Crump.

I have tried to get a consensus of whether the Writ has a chance of being granted and if it did what would happen then. Unfortunately, there is none. In my previous post about the Writ, I mentioned the case of Eutsay vs. State of Florida, this case was similar in that there were discovery issues and a Writ was asked pre-trial to overturn the Judges decisions. In Eutsay the Defense failed and the Cert was denied. The Court determined that other remedies were available like a re-trial in the event of a conviction, or a plenary appeal, as such the harm was not irreparable.

Since then we have examined other cases, for instance the case of Bill Kasper Const. Co., Inc. v. Morrison. This was a personal injury case in Civil Court, after many continuances the Petitioner Kasper, amended its witness list to include 3 new experts, the Judge denied the testimony of the experts, the Judge had allowed the last continuance provided no additional discovery would be allowed. In denying this Writ the Appeals Court determined that no irreparable harm had occurred as the Petitioner had an adequate remedy on Appeal, post-trial.

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What does this bode for this case, not well, but this case is very unusual. In this case the deposition of Crump may not result in any meaningful discovery. Whereas in the Kasper case experts testimony could be ascertained and the harm could be better determined. In other words how do you determine harm if the discovery (Crump’s deposition) is not available, how do you repair any harm done post-conviction, if Crump is depose on re-trial in such a charged case.  Getting it right the first time is very important in this case.

We looked at other cases and of particular interest was Lozano vs. State of Florida. In this case Lozano was a Miami Police beat cop, on MLD day he observed a motorcycle fleeing police cars, he tried to stop the motorcycle, who tried to run him over. Solano then shot and killed the driver of a motorcycle that was avoiding a traffic stop. The passenger in the back also died of the injuries following the crash both were black. Instant riots and disturbances went on in Dade County. Lozano was charged and convicted with 2 counts of manslaughter in Miami. That was quickly overturned because a change of venue had been denied and with the charge atmosphere in Miami, that the entire courthouse was cleared during jury deliberations. Two armored personnel carriers were stationed in front, snipers on the roof and men with body armor and machine guns in the stairwells. A no-fly zone. Just the type of atmosphere for a calm deliberate consideration of the evidence.

A new Judge moved the trial to Orlando, where the trial was moving well, then disaster struck and the Officers in the Rodney King trial were acquitted, the Judge panicked and moved the trial to Tallahassee, where the AA population was greater, that is the reason for the Writ, to stay the case and move it back to Orlando. The Appeals Court had this to say:

We must determine whether the unique circumstances of this case create an exception to the rules above which would ordinarily preclude our review of Judge Spencer’s order at this point in the proceedings.

We agree that public confidence in our criminal justice system cannot be maintained under such circumstances, and that either a conviction or an acquittal resulting from such a trial would be inherently suspect.

Now this case raises the issues of whether extraordinary circumstances are enough to satisfy the departure of normal procedure to grant a writ pre-trial. Lozano was eventually acquitted of the charges.

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As you can see the court does not always rules based previous stated rules and does depart from the principles. Each case is different as such it is hard to gauge where the Court is heading. Quoting CBolt:

I’m undecided, not of a firm opinion one way or the other, on what the DCA will do with O’Mara’s petition. The alleged error isn’t one of such a simple legal principle as respecting privilege. It is, as you well understand, unknown evidence that may or may not play a significant role at trial; and if there is error in not obtaining that evidence, the error can be remedied on retrial. I think the DCA will have to invoke something outside of that (simple denial of discovery) pattern, some sort of “exceptionalism,” in order to justify reversing Nelson’s order.

To which John Galt adds MOM’s argument:

The argument will be that GZ can appeal denial of the motion to depose Crump after trial, in event of conviction. In that circumstance, in the event that the order denying discovery is found erroneous, the state has the burden of proving “harmless error” beyond a reasonable doubt: that denial of discovery did not effect the result. Since the content of the prospective discovery is unknown, the state will have difficulty meeting that burden, or so the argument goes.In the instant case, however, there are special circumstances that motivate for pretrial relief to get it right the first time, and not have to try the case again. What special circumstances? The whole scheme team saga: intense BS campaign orchestrated by Crump to generate media and political frenzy, death threats, NBP wanted dead or alive bounty, defendant in hiding, defendant family in hiding, tweets of family address w/ death threats, tweets about locating defendant w/ death threats, security costs for defendant and family, difficulty in seating a fair jury (500 potential jurors), threats of riots, gavel to gavel coverage that will further prejudice jury pool in event GZ is found guilty after erroneous denial of discovery, enhanced security costs for trial.This is not an ordinary case. I don’t think mere formalistic application of the usual case-law will suffice. This case is similar to the Lozano case in which the DCA granted pretrial relief in connection with an errant trial court venue order.

That is next hurdle can the Defense convince the Appeals Court that denying a remedy to an erroneous court order, on discovery that may be harmless, constitute irreparable harm or that the circumstances of the case, are enough to grant this unusual relief at this point, the odds are against it. It will be interesting to see what argument the Prosecution will use, we will examine that, and the Defense rebuttal once they are available.

Now, what happens if the writ is granted, allowing the Defense to depose Crump. Can Crump still fight the deposition? Well yes he can try to appeal to the Florida Supreme Court, the chances of succeeding at that are very questionable. It will be easier for him to accept the deposition and claim privilege at those questions he wants to avoid, then Judge Nelson can rule on the objections or simply plead the 5th. There is also the possibility that any of that will be unnecessary, though I doubt it.

The odds are high, Mark O’Mara and the Don West have made a compelling argument but it is still a steep climb to getting the relief sought.

Hat tip to (MJW, CBolt, John Galt, Jeralyn Merrit)



  1. I like this look of the blog.
    As far as your post I gave my two cents on this in the last posts. Call me a party pooph-er. For what it is worth. I do not believe it will go through because: MOM has disposed W-8(nothing is stopping him from continuing), he can subpoena her to testify, put her on the stand impeach her. Question Tracy and Sybrina on stand as well. crump most likely will invoke rights, and no Judge will allow a fishing expedition.
    Also, it will most definitely help MOM if he can get Crumpster stuff in there without him being on the stand for BDLR to examine as well. IfMOM can get everything in as material that W-8 was contacted by Tracy & Crump. The letter is obviously material because the State put it in an answer that pretty much had nothing to do with the motion! It is material the Scheme’sters did an audio interview with W8 and Gutman. And most of W-8 is hearse about that night anyway, it may not be best to even put Crump on the stand. This I feel is just setting up and appeal for later. Like you said Crumpster did forgo his privilege, but who released it? We can speculate. But as far as precedence it will be hard to pass. Even if Crumpster no longer is opposing. He did that filing to jab. And as I said before I do think the settlement did just happen they were just waiting to settle dependent upon if GZ was doing an immunity hearing, the issue was money and you know it was. Everyone thought GZ would do immunity trial. It is one of the reasons even SD went berserk.

    For now, I think the CERT will fail based on precedence because it the defendant has a later cause of action to file after trial if this issue was an irreparable harm.
    I think a writ of mandamus should have been filed instead. Only because Nelson did not give reason. At least on file there would have been a reason. But bori. I respect your writing and please keep writing. You are far and few. Suppose I owe you a cake if I am wrong?

    • Actually I am leaning towards it not being granted. I believe that the Court wanted to opine on other matters. If you read the Eutsay decision, you will see that the Court had decided against the Cert, but wanted to opine on the other issues.

      The Court may want to have a say about the conduct of Crump, creating, hiding, coaching a witness to apply political pressure and hijack the justice system while at the same time maintaining a clear financial motive for doing so.

      Or they may want to clarify the private district attorney, and opposing counsel doctrines for the future.

      IMO, the Court may be taking the opportunity to clarify some issues.

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