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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Fred
