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Trials & Litigation

Judge Calls Mistrial for ‘Absolutely Outrageous’ Texting by Witness

Posted May 15, 2009 9:20 AM CDT
By Debra Cassens Weiss

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An angry Miami judge has declared a mistrial in a dispute over the sale of a condo tower because a witness sent text messages about his testimony to a colleague at the plaintiffs table during a trial sidebar.

The witness, Gavin Sussman, was chief operating officer for the plaintiff, Sky Development, the Daily Business Review reports. He was messaging another company executive who also had testified, Yizhak Toledano.

Sky Development had contended the defendant misrepresented the number of two-bedroom units in an apartment complex. One message from Toldedano said, “These people developed the site 40 years ago, in 40 years and know every corner.” Another concerned when Sky Development received a document.

A courtroom spectator noticed the texting and alerted a defense lawyer, the story says.

Judge Scott Silverman questioned Sussman about the texting, who admitted what he had done. Silverman also questioned Toledano, who defended his action.

The Daily Business Review recounts this exchange:

Judge Silverman: "Let me be really frank about this. I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano: "It was on a break."

Silverman: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury."

Toledano: "I'm sorry, after we took the break, it's not in the middle."

Silverman:"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying. This is outrageous."

In another courtroom texting incident, a judge sentenced a Utah woman to 30 days in jail for sending two text messages to her husband from a court hearing about his debt collection case.

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