Monday, March 22, 2010

An most interesting comment from one of our readers.

As most of you have figured out by now, the Straw Buyer is no lawyer, didn't play one on TV and didn't stay in a Holiday Inn last night, therefore when we start delving into legalese, there is no doubt we're way out of our league.  Despite the fact that we have no legal training here at the Straw Buyer, the laws (at least in the instances we've discussed) seem fairly easy to comprehend.  When we discussed the concept of "Due Process" last Friday, we got a rather interesting comment from one of our readers, take a look:

OK!  Let's take a closer look at that comment starting with the first paragraph...
Defendant's do not have a constitutional right to discovery, unless the items are Brady material, which are generally exculpatory or relevant to impeachment of a witness. In fact federal defendant's frequently go to trial without any discovery being turned over. The United States Supreme Court has long affirmed that aside from Brady material there is no "right" to discovery.
Alright then, according to this there is not constitutional right to discovery unless the items are Brady material or materials "which are generally exculpatory or relevant to impeachment of a witness".  Ok, we get it.  But how can anyone know if the statements contain "Brady material" if the prosecutor won't produce them?  If the statements do exist, are we to leave it to the prosecutors discretion as to whether or not they contain Brady material?  That's an interesting proposition when you have a somewhat less than honest prosecutor now isn't it?  Certainly a great argument for open file discovery.

Moving on...
However, Defendant's do have rights to discovery under the Florida statutes, evidence code and Florida Criminal Rule of Evidence 3.220.
So at the state level the defendant does have the right to discovery, good.  Before we go any further, lets take a look at that rule that the commenter referenced, specifically parts B, C and D:
(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled;
Well, doesn't this speak directly to the statements that the defendants in the Bernardo Barrera mortgage fraud case have been asking the state to produce for over a year and a half?  Sounds like it to us!  Moving on:
(C) any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;
Ok, that seems easy enough, last but not least...
(D) any written or recorded statements and the substance of any oral statements made by a codefendant if the trial is to be a joint one;
Getting back to the rest of the comment...
The prosecutor must turn over items that fall under the rule. 
There you go, it seems to us that according to the rule of criminal procedure that our commenter quoted, statements from codefendants have to be turned over as part of the states discovery obligations.  In last fridays post, we referred to the statements made by Michael Martinez, who was initially a codefendant, but then after cutting a plea became a states witness, all the more reason that prosecutor had to hand over his statements.  More from the readers comment...  
Often times defense attorneys, acting as good advocates, will argue that they are entitled to things which are either not covered by the rule or are privileged. Accordingly, it is common for the parties to file motions to compel and ask the Court to make a ruling.
Of course, isn't that what the ABA Model Code of professional responsibility canon 7 is all about?  Let's have our friend Max clarify canon 7 for us...

Alrighty then!  What sums up this whole issue of the state not producing statements that seem essential to the defendants putting together a meaningful defense is the following quote from the "fourth motion to compel":
14.Despite repeated requests and multiple court orders, the State has failed to provide Mr. Martinez’s statement. Upon information and belief, the Defense believes the State has had possession of Mr. Martinez’s statement for at least the last three months. 
16.On September 16, 2009, the Court entered an order requiring the State to provide the statements of Co-Defendant Romney and Martinez by October 1, 2009.
That was back in October 2009 over six months ago and still no statements!  Last but not least from our esteemed commenter...
Once the Court rules, the prosecutor must either comply or seek an appellate remedy. It is also common in a case involving voluminous amounts of paper evidence to attempt to comply and ask for more time to finish the State's response.
Ok, we'll give you that.  Now take into consideration that this particular case is over 18 months old and still no statements.  Considering how much time has passed, you can't possibly expect us to believe the state needs more time to produce these statements?!  Sorry, this is just another clear cut example of ASA Bill Kostrzewski playing "hide and go seek" with evidence.  There's no excuse this far into the game for not turning over evidence that's key to the defendants preparing their defense.

As far as the author of the comment that is the subject of todays post, we're honored (hint) that they took the time to read our blog and comment on our story.  Thank you.

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