Should judges be permitted to call prosecutors appearing before them to request case documents without notifying the defense?
Should the State hand over prosecution records to a requesting judge, some of which may not yet be in the defense’s possession, without notifying defense counsel?
Have defendants rights been impacted if either question is answered in the negative? If it’s been a routine occurrence over months or years impacting long closed cases, what is the remedy?
And if a judge notes the review of discovery documents in a written order denying depositions, does it count as full disclosure?
These are a few of the questions presented by Jason Blank’s Motion For Disqualification Of Judge, filed in State v. Zahariev. The motion is found here.
At issue is Chris Pole’s habit of requesting things like medical records, crash reports, and supplements as background information before ruling on requests to allow depositions in misdemeanor cases. Pole, the chief judge over the county criminal courts, is well-known for precluding depositions on cases in his division.
Florida Rule of Criminal Procedure 3.220 (h)(1)(D) provides in part:
… In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition …
Does Rule 3.220 authorize Pole to contact the State on his own and request additional information, or is Blank’s contention that impartiality has been breached accurate, to the point a new judge should be assigned?
From the motion:
… on January 24, 2018, the Court entered an order denying Defendant’s motion and citing to a litany of items it reviewed in coming to its decision … (Blank) was perplexed as to how the Court obtained the documents that it purports to have reviewed, including documents which had not yet been disclosed to Defense in any State’s discovery submission, namely Defendant’s medical records. (Blank) immediately contacted the assigned State Attorney for this matter and inquired further about how the Court came into possession of these documents … (Blank) was advised that the Court had requested the Sate’s discovery ex parte, via telephone … The Court was then party to a second ex parte communication when the State complied with the Court’s request and provided a slew of documents to the Court … (Blank) was also advised by the assigned State Attorney that it is the Court’s normal practice to make these ex parte requests to the State when motions for depositions are received by the Court … (Blank) then spoke with the Chief Assistant State Attorney who confirmed the ex parte communication in this matter had occurred and agreed to address the Court regarding this matter together with (Blank) … on February 9, 2018 … (the parties addressed the Court) … and the Court not only promptly confirmed that the ex parte requests in the instant matter was made, but that it is the Court’s regular practice to request ex parte from the State, without any notice to the Defense, all discovery materials provided to the Defense …
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