I totally agree with you on your analysis here, but to hijack a bit, what would you think if the rule wasn’t “prosecution has to turn over any evidence that is potentially exculpatory” and instead “prosecution has to turn over any evidence it has, period”?
Seems to me it would at least partially help the issue by making such prosecutor misconduct more obvious by removing the squirrelly “well it wasn’t relevant” defense.
I’ve worked in DA’s offices where the conventional wisdom was “turn it all over” and not only did it make my job a lot easier, but it also helped me sleep better at night. Then again, I was lucky to work for offices where “get the conviction at any cost” wasn’t the rallying cry like it was in some of these DA offices.
But the issue is not whether the evidence was admissible or not. (I’ll note here that the judge found the evidence inadmissible, and nobody is challenging that ruling. It is now law of the case, and attempts to bring it into dispute will be estopped in a whistleblower action.)
What is at issue is whether Kruidbos is entitled to relief as a whistleblower when Kruidbos raised these concerns to the State’s Attorney, the State’s Attorney considered them and determined, in good faith, that there was no basis for exchanging the evidence (it is to establish the existence of a good-faith rationale that I provided the relevancy analysis and the judge’s ruling; outside of that limited purpose, the evidentiary ruling is not being controverted). Not being satisfied with the State’s Attorney’s exercise of her judgment on the matter, Kruidbos, an employee of that office, then undermined an active prosecution. For this, he was terminated.
In short, the case is not about evidence law but whistleblower law. You’re barking up the wrong tree by focusing on the evidentiary ruling. Whistleblower law does not protect subordinates who disagree with their employer’s discretionary decisions unless a showing can be made that the discretion was abused. Those facts aren’t present here.
Then the prosecutor is going to have to turn over every piece of paper and electronic document in its office, whether or not relevant to any pending charges or even to the case. Want to narrow that down a bit?
I agree that in general, the presumption should be in favor of the party seeking disclosure. Isn’t there some sort of privilege log equivalent in criminal procedure?
I’ve addressed this. THe inadmisssability (of the text messages) was itself a result of the prosecution failing to disclose them to the defense in time.
I would question whether you could consider that to be “in good faith”. That was a very self-serving decision.
The judge decided it was inadmissible at that time because there was an authentication issue. The authentication issue was there BECAUSE the evidence was turned over to defense very late and the defense didn’t have the time to work up all the authentication documentation.
Huh? What’s that? I’m sorry but you’ve been … ESTOPPED!
The evidentiary ruling in the criminal case is not going to be revisited in a whistleblower action. The judge in the whistleblower action is not going to allow it to be relitigated, it will be taken as law of the case, and any attempts to bring it into controversy will be summarily shut down. If your case turns on “The judge in that other case should have decided something else!”, you are effed.
The text mesages were all authentic messages. That was not the question. The problem was that the phone did not belong to TM - it was not in his name - even though he used it as a practical matter. So the question was whether he had sent/received the messages or whether it was some other user of the phone.
The state could theoretically have made an investigation and authenticated the messages as being from/to Trayvon. But considering their content, they had little incentive to do so.
It’s not “The judge in that other case should have decided something else!” it’s “The judge in that other case would have decided something else!”. Or even “might have decided something else” would suffice to remove the “law of the case” aspect, I would think.
No. If you suceed in showing that the prosecution withheld evidence and now you know about it on the eve of trial and you’d like to use it, but you need time to authenticate this eleventh-hour evidence, the judge will give you a continuance.
The judge did not give a continuance, because she determined that the evidence, should it be authenticated, was not relevant (or alternatively, and an equally acceptable basis for finding irrelevance, more prejudicial than probative). And therefore granting a continuance to authenticate not-coming-in evidence would be a waste of time.
Knowing that the evidence wasn’t coming in, she did not grant leave to get it authenticated. Because the evidence was not authenticated, there was no need to reach the relevance question (even though this obviously entered the calculus).
CORRIGENDUM: The objection that evidence is more prejudicial than probative concedes its relevance, but contests the evidence’s admissibility. Harmless error on my part (as the ultimate question was on admissibility, not merely relevance).
Let me be honest with ya. A lot of what I was saying above was just riffing off stuff I remembered reading in Emanuel’s Evidence. Now that I read the actual transcript (I mean, it says, almost verbatim, the same things I did!), I am extremely convinced that the prosecutor was easily within her discretion in not turning over evidence that Judge Nelson clearly had genuine concerns as to admissibility and probative value.
Kruidbos is screwed. The lawyer made a very defensible trial/discovery decision, the IT dork didn’t like it and injected himself into a case his boss was arguing and on the wrong side to boot. Now he’s out of a job. Ain’t no whistleblower law gonna get him his job back.
Leaving aside other issues, is this true altogether?
Is the state allowed to not turn over evidence to the defense because the state has determined that it’s more prejudicial than probative? I would have thought that they would be required to turn it over and fight it out with the defense before the judge.
And if it’s not true, then it’s not a harmless error on your part.
It doesn’t look like that to me. ISTM that the judge’s concerns about prejudicial versus probative were primarily about evidence that he watched other guys fight or stuff of that sort. She seemed to be saying that evidence that he actually fought himself would be allowed.
I echo F-P’s thoughts. To the extent that the material was inadmissible because it was more prejudicial than probative, that at least concedes probative value. Other remedies, such as a limiting instruction, could have been requested.
The only reason this is settled law of the case is because Zimmerman was acquitted. It’s beyond cavil that a manslaughter conviction (to say nothing of a murder two conviction) would have been appealed, and one of the grounds for appeal doubtless would have been the evidentiary rulings at issue here.
So I admit I’m no expert on whistleblower laws in general, or Florida’s law in particular, or civil law at all.
But as I read Fl. Stat. 112.3187(5)(a), it includes both a violation or a “suspected” violation – help me see where I’m wrong about that covering the guy. Does he have to be right, or is his good-faith suspicion sufficient to invoke the protections of this law?
Do you question the veracity of the account given therein? Do you think an SAO staffer who has concerns about the discovery conduct of an attorney who raises those complaints not to the State’s Attorney, nor to the judge or the AOC, but rather opposing counsel directly, before attempting to resolve it internally or via the judge, is credible that he had a good-faith suspicion and just had nowhere else to turn?
Going to the opposing counsel directly, rather than supervisory personnel or the Inspector General also appears to take it out of covered disclosures. The Whistleblower Law doesn’t protect any disclosure whatsoever, regardless to whom made.
Yeah, the beauty of this is that you are doing the right thing but with enough crap dropped on them, you make the Defenses job harder. It’s a win-win for the prosecution. And better yet, you wont get in trouble for it, whereas withholding evidence can be bad.
I don’t think it will get that far. F.S. 112.3187(7) requires that protected communication be “a written and signed complaint.” Kruidbos notified the assistant de la Rionda via e-mail. A non-signed writing has to be directed to the employee’s supervisor, which would appear to be Corey. At least, I can’t find any decisions where an e-mail was held to satisfy the signed writing requirement.
Quite frankly, I do question the veracity of the letter. Having listened to Alan Dershowitz’s account of Angela Corey’s failings, and having seen for myself the incredibly bare affidavit that supposedly supported probable cause for the second degree murder, an affidavit which I was convinced would be fleshed out by the trial and which was not, I now believe Corey to be completely untrustworthy.
However, your points about the direct contact with opposing counsel and RNATB’s point about the defective form have proved the main point well: this is a meritless case.