IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
CASE NO. CTC 01 00101 MMANO
STATE OF FLORIDA
JESSE PRINCE, JR.
THIS CAUSE having come on before the Court upon Defendant's Motion to
Abrogate Private Investigative Privilege And to Take Depositions and the Court
having heard arguments of counsels and being otherwise duly advised in the
premises, finds as follows:
The defendant in this cause has met the necessary prerequisites set by this
court and in accordance with the case law. He raises a worth further
exploration. Said defense can only be fully explored through the discovery of
evidence relating to his contact with the confidential informant and the
private investigators involved in this cause. Both of the private investigators
involved in this case were hired by a third party not necessarily known at this
time. The state and defense agree that a witness, who is one of the
investigators and believed by the defense to be the confidential informant was
specifically instructed to find unethical or illegal activities the defendant
was involved in. That information would be relevant, that is, the information
would tend to prove or disprove a fact of consequence to the outcome of the
case. See. Chapter 90.404 Florida Statutes. Contrary to the assertions of the
counsel for the private investigators, there is no requirement that the
defendant first prove that he seeks to assert a "legally recognized
defense" before the sought after discovery can proceed. The "(c)oncept of
relevancy is broader in the discovery context than in the trial context, and a
party may be permitted to discover relevant evidence that would be inadmissible
at trial, so long as it may lead to the discovery of admissible evidence."
Davich v. Norman Bros. Nissan. Inc., 739 So.2d 138 (Fla.5th DCA1999). The
defendant claims he was "set up." This court has heard enough to believe that
he should be allowed to explore that issue.
Finally, in his response to the affidavit signed by the defendant on April 19,
2001 Mr. Barry Gaston attempts to clarify his position regarding references to
religious beliefs, practices and doctrines of the Church of Scientology. He
states, "should this Court entertain whether or not the Defendant's allegations
regarding the existence and interpretation of the 'fair game' policy (despite
the Church's assertions to the contrary) could form a legal defense then this
Court would, in fact, be interpreting Church beliefs, practices and doctrines."
Mr. Gaston supplements the record with the transcript of a motion in limine
sought by the prosecution on this very issue and granted in a California court.
There are two problems with Mr, Gaston's argument. First, this is discovery and
as previously state in Davich , supra, relevancy during discovery has a broader
context than at trial. Hence, while the sought after relevant evidence may not
be admissible at trial it is none-the-less discoverable. Secondly, Mr. Gaston
is a witness in this case and therefore not a party thereto. While he has
standing to challenge the abrogation of the private investigator privilege, he
has no standing to object to potential defenses to be raised or what discovery
methods can be used to raise them. If the state chooses, prior to trial, to
move this court to exclude references to the so-called "fair game" policy then
the court will entertain such a motion.
This court again finds no merit in the assertion of Mr. Gaston that allowing
the defendant to investigate and possibly assert any particular, defense in any
way amounts to the court "interpreting" Church practices, beliefs or doctrines.
Therefore, it is,
ORDERED AND ADJUDGED that Defendant's Motion to Abrogate Private Investigative
Privilege And to Take Depositions is hereby granted.
IT IS FURTHER ORDERED AND ADJUDGED that the motion to take deposition of Mr.
Gaston and Mr. Raftery is granted.
DONE AND ORDERED at Clearwater, Pinellas County, Florida this 27th day of April
Michael F. Andrews County Judge
Denis M. deVlaming, Esquire
Paul D. Johnson, Esquire