But, this hold back from discovery is essentially the crux of her complaint. All of it. I see what you're saying but I wouldn't refile this case and attempt to try it again without having an answer for every single thing she pointed out/laid out, and for which the judge slammed the state for not disclosing, penalizing them so severely that they really had no choice but to file that motion to dismiss.
On the depos, he could still plead the 5th since he still has criminal exposure. However, this is typically admissible in civil cases from which a jury is free to draw (and usually does) an adverse inference. And, circumstances have changed in the past week now.
The judge granted the motion to dismiss in April; she filed suit May 2nd, and now suddenly, there's a body and a new investigation. Not insinuating she'd otherwise have urged him to lie, but the calculus is now different imo. This is why I think she's been a bit unhinged with the "social media statements". She started her train down the tracks. Now she has to figure out how to navigate this new development. I don't think he can come out looking good pleading the 5th. She'll be fighting to narrow the scope - something that may prove difficult with her bucketful of Claims and boatload of defendants.
All jmo
Sure, he can plead the fifth. Good luck with that in front of Federal judge and jury. The person who brings a civil complaint really has to explain why. Full stop. It would be one thing for the defendants to take the fifth - but the plaintiff?? No way.
I doubt anyone can find a good example of a plaintiff taking the fifth in bringing forward their own complaint and then winning the case.
It's the equivalent of saying, "You all harmed me, but I refuse to tell how it happened." If he takes the stand (which he must do to win his suit, IMO - again if anyone can find a Civil Rights suit that was successful without the Plaintiff's testimony, I would love to read about it), and then Barry takes the 5th only on incriminating questions, don't you think judge and jury would kind of notice that? It will be very embarrassing for his civil plaintiff attorneys (of which he appears to have two sets).
See, I think IE doesn't know civil procedure and has never had a federal case before. I worked for 20 years at a law firm that handled almost all plaintiff's cases, but when it became a federal case, the partners voted to hire a top notch young lawyer with federal civil experience. And we needed that person very, very much. That case was still under litigation 10 years later, a few years after I was done working there.
It's true that anyone can take the fifth, but to see the complaining party do it (when it's their own facts that are prompting the case?) is bizarre. In a criminal case, the State is basically the "plaintiff" (complainant). In this case, Barry is in the role that the State is in, in his criminal trial. He's the one making the complaint. He literally is going to have to open his mouth and state why he's complaining.
And then, each and every defendant gets to tell THEIR side of the story. It would be worth $15M, I think, to hear all of that powerful investigative testimony get on the record. All these lawyers and LE explaining why, exactly, they believed Barry Morphew killed Suzanne Morphew. He is claiming that they "discriminated" against him and violated his civil rights by investigating him and then charging him. They will get days and days in court to explain why they thought otherwise. I don't think Eytan thought this over too well. She thought maybe the County would settle. They aren't going to settle right now.
Jonny Grusig, all by himself, on the stand, talking about why he thought Barry did it will make news headlines all around the planet for days. Barry's share of that $15M is going to look paltry to him, once that happens. I figure at most he's getting 60% of any settlement minus costs (while IE and the other two sets of attorneys split the 40%). Since there are lots of civil rights violation cases where LE did things that are clearly wrong (left people to starve in cells, said racist things, etc, etc) and even those get appealed and sometimes overturned, Barry really doesn't have a strong reason to bring this suit. And now, that lawsuit will bring Suzanne's death into full focus.
A death that Barry is claiming didn't happen at all - therefore, they unreasonably prosecuted him for a crime that couldn't have been committed, since she was still alive and living in Ecuador or whatever). Now that it's clear the death did happen (and will certainly be classified as a homicide, even if there's no immediate CoD recorded), his case is a terrible one, very weakened and he looks stupid. His lawyers look stupid. I see why IE's partner went off to do her own thing. What was Eytan's plan? To send Barry to his extensive depositions by many sets of lawyers for the defense, with instructions, "Just take the Fifth?" Might work in a criminal case (where there are NO depositions sworn), but not in a civil case.
IMO. (As you can tell, I'm all worked up over this aspect and shaking my head, as I cannot at all figure out IE's strategy in filing the civil rights case).
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