I write today about the defense motion for discovery filed yesterday in the Trayvon Martin murder case. Donald West wrote the motion and he is asking Judge Nelson to order the Martin family attorney, Benjamin Crump, to turn over the recording device with which he recorded his telephone conversation with Witness 8, whom we know as Dee Dee. That conversation occurred on April 2, 2012 and it is important to the case because she was telling him about her conversation with Trayvon on her cell phone when the defendant attacked Trayvon, mere moments before he shot him to death with a single gunshot to the heart.
Dee Dee was Trayvon’s girlfriend and she spent over 6 hours talking to and texting him the day the defendant shot him to death. She heard Trayvon describe the defendant as a “creepy man” who was following him for no apparent reason, a menacing man from whom he fled in fear. She heard him ask the defendant why he was following him and she heard the defendant respond by asking him what he was doing in the neighborhood. She heard what sounded like a scuffle with Trayvon yelling, “Get off me.” Then the connection went dead. We now know that the defendant fired the fatal shot mere moments later.
Mr. West relates in the motion that the State has provided the defense with a copy of the recorded telephone call between Mr. Crump and Dee Dee. However, Mr. West complains that the copy is very poor and mostly unintelligible. He wants a better copy and he wants it before he deposes Mr. Crump and Dee Dee.
He complains that the State says its copy is no better than the one he has and it claims it cannot force Mr. Crump to surrender the original recording device so that a new and possibly improved recording can be made.
This type of dispute is not unusual when third parties possess materials that the defense desires. The rules of discovery only require the State to turn over materials in its custody, possession or control. Here, the State is telling the defense that the material it requests is not within its custody, possession or control.
Presumably, Mr. Crump does not intend to part with the original recording or allow anyone to mess with it and potentially damage or destroy it.
The importance of the original recording to the defense is that it contains a statement by an important prosecution witness as well as potential evidence of coaching or tampering with the perception or memory of the witness by Mr. Crump, who was asking the questions. Now, mind you, there is no evidence or reason to believe that Mr. Crump attempted to pull a Serino and “correct” or change Dee Dee’s recollection. That is mere speculation in support of a defense request that prosecutors like to call a “fishing expedition.”
At this point, I do not believe that the defense has established that the copy it has differs from the copy that the State has or that the original copy that Mr. Crump has is any better. Seems like this could be determined in a reasonable and civilized fashion when the defense deposes Mr. Crump by playing the original and directing the court reporter to transcribe it. If the defense then wants to continue the deposition to another time to prepare questions for Mr. Crump about the recording, it may do so.
Basically, this is a tempest in a teapot and the defense needs to proceed with the depositions.