Zimmerman Files Motion to Recuse Judge

As anticipated, Mark O'Mara has filed a formal request to recuse Judge Jessica Recksiedler because of the potential for a conflict of interest due to her husband being a law partner of Mark Nejame, who has been hired by CNN to provide analysis on the case.

O'Mara told the judge on Friday (video of status hearing here) he had discussed NeJame with his client, and that NeJame had contact with the Zimmerman family and maybe even Zimmerman himself, and that while he wasn't sure of all the facts involved in the relationship between Zimmerman and NeJame, and Zimmerman's family and NeJame, he believed NeJame had "agreements" or "waivers" in place based upon their contact. His concern was that the Zimmerman's might continue to give NeJame information as "exclusives" or just as additional insight.

Curiously, NeJame today says he never met with or talked to Zimmerman and implies he never met with Zimmerman's family. [More...]

NeJame told CNN that Zimmerman "contacted my office, attempting to reach me, and wanted to hire me to represent him" on March 13. One of his law partners relayed that request to NeJame, who declined. He explained later that he knew how taking on "big national cases (can) take a lot out of you" and wanted to have more time to spend with his children. "I decided simply not to," the Orlando lawyer said.

A friend of Zimmerman's later repeated the request in a direct conversation with NeJame early last week, just as lawyers Hal Uhrig and Craig Sonner said they'd no longer represent Zimmerman. By then, NeJame noted he'd been hired by CNN to serve as an analyst.

NeJame again said he could not represent Zimmerman and offered the names of five lawyers -- topped by O'Mara -- who might be considered instead.

If NeJame declined to speak with Zimmerman and only relayed a "no thank you" message through his law partner, and told a friend of Zimmerman's he couldn't represent Zimmerman because he'd already agreed to be a CNN analyst, why did he need a waiver or agreement with the Zimmermans? It doesn't even sound from NeJame's version that privileged communications were had between him and Zimmerman or the Zimmerman family.

It was NeJame who gave O'Mara's name to Zimmerman and/or his family. How is it that their versions of NeJame's involvement are so different, with O'Mara fearing a continuing relationship with NeJame being provided "exclusives" and "insight" for his TV analysis and beleiving there are some sort of agreements or waivers in place, while NeJame maintains he never talked to Zimmerman, only to his own law partner and to a friend of Zimmerman's?

What if any continuing relationship does NeJame have with the Zimmerman family? Since O'Mara had the weekend to get more facts and today filed a motion alleging a potential conflict existed due to NeJame's dual role as an analyst for CNN and as a law partner of the judge's husband, it doesn't seem like whatever new information he learned allayed his concerns.

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    Seems like the judge is the least (5.00 / 0) (#7)
    by Anne on Tue Apr 17, 2012 at 06:28:11 AM EST
    of the potential problems in this case.

    Troubling to me is that O'Mara is saying one thing about NeJame and his connection to Zimmerman and NeJame is saying something altogether different.  I mean, why does O'Mara think NeJame has waivers from Zimmerman?  Is O'Mara getting conflicting stories even from within the Zimmerman family (I hate to say this, but George Zimmerman's family and "friends" may be the biggest impediment to his ability to defend himself)?  

    The thing I keep thinking is that the judge can step down, but that's not going to do anything for what may be a potentially bigger issue - that Mark NeJame is still going to be in the middle of this.  And as long as there's some kind of connection to Zimmerman, one that seems weirder by the day, I think the questions are going to continue to percolate.

    I don't know, if I'm Mark O'Mara, I'm thinking more and more that I'll get my client through this preliminary phase, and then I will bow out.

    And as a total aside, I rolled my eyes when I read that NeJame had declined the representation because he wanted to spend more time with his children; is one of them named "CNN?"  

    Please don't take this the wrong way (none / 0) (#1)
    by Mitch Guthman on Tue Apr 17, 2012 at 12:45:51 AM EST
    I'm genuinely confused about why O'Mara wants to recuse this judge if, as it appears, the lawyer/television commentator that's the problem is cultivating the Zimmerman family as sources.   If I were the prosecutor, I'd be unhappy because I would worry that NeJame might end up taking a pro-defense stand to keep his sources sweet and that the judge might conceivably, in the abstract, be at least a little bit influenced because of what seems to be a tenuous connection to the defense through NeJame.  

    What's O'mara worried about?  All the potential biases seem to going his way.  With any luck NeJame might even manage to poison the mind's of potential jurors with some pro-Zimmerman propaganda. Maybe bad for the platonic ideal of justice in the abstract but how is it bad for Zimmerman?

    Seriously, what's O'Mara's angle here?

    nothing to take the wrong way (none / 0) (#3)
    by Jeralyn on Tue Apr 17, 2012 at 01:47:35 AM EST
    I don't understand either, unless O'Mara is afraid he can't control Zimmerman's family and friends who talk to NeJame, and what Zimmerman may tell them that they pass on to NeJame.

    But he and NeJame have to have talked, NeJame referred him the case. He'd want to (1) thank NeJame (2) ask why NeJame wasn't taking it (3) tell NeJame about the judge calling a hearing over the conflict. O'Mara talked  to the prosecutor about it before the hearing. He's not going to go into a hearing with this much attention and not get some answers from NeJame first.

    Also, O'Mara said he talked to Zimmerman about the conflict before Friday's hearing, it doesn't make sense he wouldn't also have talked to NeJame. Which is why I'm so perplexed at their different versions.

    The public and commenters here seem to like O'Mara because he's non-combative. I'm not convinced yet. I'd rather see him making arguments for his client when he goes on TV -- or stay off it altogether. The prosecutors seem overly pleased that he now has the case, which also makes me skeptical.

    I'm not convinced O'Mara is in the case for the long term. I don't see how as a sole practitioner (with an associate who's been licensed one year) he can afford to take on this case for nothing. I won't be surprised if he gets out after the bail hearing and the public defender takes over. That would not be a bad thing, they have a lot of experience in these kinds of cases. And they rarely go on TV to talk about their cases.


    i believe you hit that nail: (5.00 / 2) (#5)
    by cpinva on Tue Apr 17, 2012 at 02:40:48 AM EST
    unless O'Mara is afraid he can't control Zimmerman's family and friends who talk to NeJame

    it's painfully obvious that mr. zimmerman's family and friends have the idea that a trial is by public opinion, rather than judge and jury. they failed in their efforts to keep him from being arrested, with their (and the attorney's) public statements. no reason they won't continue the public onslaught, in hopes of affecting a jury, should it get that far.

    i don't think this is quite an accurate analysis:

    The public and commenters here seem to like O'Mara because he's non-combative.

    i think it's more because he acts like a professional, as opposed to the two clowns who preceeded him. one can be both zealous and professional, without being a buffoon.


    Beat me to it (none / 0) (#10)
    by ruffian on Tue Apr 17, 2012 at 09:52:16 AM EST
    From what we have seen so far it is by no means clear to me that 'inside information' from Zimmerman's friends and family is beneficial to Zimmerman's case. To the contrary, they have not helped him yet.  O'Mara seems exactly right to stay well clear.

    The jury is going to be picked from a small pool (none / 0) (#14)
    by Mitch Guthman on Tue Apr 17, 2012 at 11:23:53 AM EST
    I agree with you and Anne that Zimmerman has not been well served by his family and friends who have tried to spin his case in the media.   I just don't understand why the family's alleged relationship with NeJame is a problem requiring papering the judge or why O'Mara (whose client would seem to be advantaged by that conflict) would be addressing that problem instead of the prosecution.  

    This does nothing to stop Zimmerman and family from blabbing to the media since it doesn't do anything to stop them from going on television or leaking to NeJame. If what he's worried about then he should address that problem instead of throwing the baby out with the bathwater.

    If this case is tried to a jury, the veniremen will likely be drawn from a relatively small group of people who are very likely to watch local television news and to have their early opinions of the case shaped by those newscasts.  Again, always assuming NeJame's inclination to keep the Zimmerman family sweet as a way of insuring his continued access to valuable inside scoops and exclusive interviews, I don't understand why O'Mara would walk away from a potentially beneficial and oblique method for influencing potential veniremen in his favor.

    I would think that one of O'Mara's top priorities right now would be to humanize Zimmerman to potential jurors.  If the portrayal of Zimmerman as an angry guy with an itchy trigger finger is the image of him that sticks, then he is finished.  I don't care about the evidence, the judge's instructions or the brilliance of the lawyer's arguments.   The jury needs to see Zimmerman as a human being and the best time to humanize him to a small venire is right now.

    I'm not aware of any legal or moral obligation on his part to do this and I don't see any possible benefit to Zimmerman from this motion.


    I think O'Mara is right to be concerned (none / 0) (#17)
    by ruffian on Tue Apr 17, 2012 at 12:21:44 PM EST
    that things the family says to Nejame will be detrimental to his client. At the very least, it is a risk. It is potentially beneficial, as you say, but also potentially dangerous.

    That said, I don't see that he has any legal right to shut them up.


    FWIW Nejame doesn't do (none / 0) (#20)
    by gyrfalcon on Tue Apr 17, 2012 at 02:47:13 PM EST
    "inside scoops" and to my knowledge has never conducted an interview for TV (in fact, I've never seen one of these part-time legal commenter/analyst types on any network conduct any interviews).

    You might want to see if you can dig up some video of his appearances on CNN just to get a superficial sense of the man.  He's awkward and earnest and often quite circumspect.  What he's doing to help CNN behind the scenes I obviously don't know, but he's not a flashy, mouthy, camera-lusting character looking to promote himself into a big network TV career.


    Why would recusing judge affect (5.00 / 1) (#12)
    by bmaz on Tue Apr 17, 2012 at 11:03:20 AM EST
    Why would recusing judge Recksiedler affect Zimmerman and/or his family's/friend's etc. proclivity to talk to Nejame?  If they are going to do that, who the judge is doesn't really matter.  If the concern is it getting back to the trial judge whatever Nejame says will likely make its way to the trial judge through media or courthouse scuttlebutt irrespective of who he or she is.  I don't get this angle. Maybe there are other factors in play as to Recksiedler?

    I don't get that, either; as I said (5.00 / 0) (#15)
    by Anne on Tue Apr 17, 2012 at 11:27:01 AM EST
    in an earlier comment, I think the judge is the least of the problem - her stepping down still leaves NeJame in all of this in some way.

    If someone doesn't soon get control of the Zimmerman family and friends, they may serve as the biggest impediment to George Zimmerman and his legal team being able to mount a successful defense.


    I think you're right about both things. (none / 0) (#6)
    by Mitch Guthman on Tue Apr 17, 2012 at 03:13:32 AM EST
    I do get the sense that O'Mara is worried about keeping the Zimmerman family quiet.  I do see where they could do his case considerable damage if they go off message or off the reservation.   I just think he needs to talk with them and the client.  If Zimmerman can't or won't stick with the program, that's his choice and he's the one who will pay if things go wrong.    It seems to me that the defense potentially has a good thing going.  All the potential jurors and their families are going to be watching the television and if NeJame ends up pushing the defense's party line to keep his in with the family and maybe get the exclusive jailhouse interview with Zimmerman himself, that's an edge I can't see giving up---especially if I were defending a guy as unpopular as Zimmerman.  

    It may not be what they teach in law school but in the real world all those prospective jurors are going to be exposed to a lot of pre-trial publicity.  You can't tell me it won't color how they see things going in so if there's even the slightest chance of having a favorable commentator on local television, you just can't walk away from that.  

    I think you may also be right that O'Mara is going to have to get off the case eventually.  I once worked on a big multi-defendant case where my client was represented by a very good lawyer in a two lawyer office.  We had one full-time investigator (my boss) who was topnotch and I helped out quite a bit with the motions (but mainly did investigating).  We had a joint defense agreement and actually did work very cooperatively on motions and trial prep.  So the other defendants supplied about five very, very good lawyers and a couple of people at my level.   We did most of the investigation for all the defendants.  Even so, the office was basically shut down for almost a year.  Not that nothing was done, but pretty much everything was on the back burner and they didn't bill much except to our case, especially once the trial started.   Even if O'Mara gets appointed (and paid) by the court and the court picks up the tab for experts and investigators I just don't see how O'Mara will be able to handle enough other cases to make a living so I think eventually it's just going to be too much for him.

    The only way I see him keeping the case is if the state's theory of why this is a 2nd degree murder is essentially an argument about how mutually agreed upon facts should be interpreted.   In other words, the state's accepts Zimmerman's version of events but argues that it adds up to 2nd degree murder.   So there wouldn't be much pretrial investigation to do, wouldn't need to spend time working with experts and pretty much everything pretrial would be fairly straightforward motion work.  For that kind of thing, he could bring in specialists on the SYG motions and so forth and maybe still have time left to bill on other cases.

    On the other hand, if the state charged Zimmerman with 2nd degree murder because there's something in the physical evidence that puts Zimmerman in the jackpot, then I think O'Mara's got to get off the case because that's the kind of case that would require a lot more investigating and lawyering than a small firm is capable of doing unless somebody wants to fund Zimmerman's defense to the tune of beaucoup bucks.


    Don't understand what this means (none / 0) (#9)
    by gyrfalcon on Tue Apr 17, 2012 at 09:14:39 AM EST
    "NeJame had "agreements" or "waivers" in place based upon their contact."

    Agreements or waivers for what?  Not a lawyer, so I'm probably missing something obvious legally.

    The only thing I heard Nejame say, and this was some days ago, was that he had a "waiver" from the Zimmerman forces to relay publicly their request for him to represent Zimmerman, his decision not to and his (or his firm's) suggestion of other attorneys, including O'Mara.


    If that's really the case, then ... (none / 0) (#21)
    by Donald from Hawaii on Tue Apr 17, 2012 at 03:00:21 PM EST
    ... if I'm O'Mara and I have little or no control over what my client's family says to the media, I bow out as graciously and quickly as possible.

    Aside from his own bad judgment on the night in question, George Zimmerman's family and friends appear to pose his biggest problem in this case. It's like everyone wants their Andy Warhol moment in the limelight, and they can't quite grasp that they're not helping George, because media are NOT their friends here.

    The media are about ratings and sales, that's all. They're not pursuing a high-profile story because they're necessarily interested in seeing that justice is done in this case. And if, in the process of achieving their goal of higher ratings and sales revenue, they somehow preclude the Martin family's ability to seek proper closure in the face of tragedy, or compromise George Zimmerman's chances to empanel an unbiased jury and receive a fair trial, then so be it.


    Mr. O'Mara is or will have trouble w/ client (none / 0) (#2)
    by oculus on Tue Apr 17, 2012 at 01:27:50 AM EST
    control.   Will try to cut Zimmerman loose later?  Will the judge. permit O'Mara to cease representing Zimmerman?  Is Zimmerman. credible, even as to these issues unrelated to the pending criminal case?

    see my comment above (none / 0) (#4)
    by Jeralyn on Tue Apr 17, 2012 at 01:52:26 AM EST
    as to why I am skeptical O'Mara will stay in the case. I doubt it will be because of Zimmerman's credibility. Zimmerman hasn't publicly said anything yet to make him non-credible on any issue. Others speaking for him aren't the same as him speaking. And please don't go off-topic into personal opinions of his credibility. The topic is O'Mara and the Judge and NeJame.

    There are several matters to sort out, (none / 0) (#8)
    by KeysDan on Tue Apr 17, 2012 at 09:05:39 AM EST
    but one remains glaringly apparent: The judge's husband is a law partner of Mark NeJam who has been hired by CNN to provide analysis of this case.   That in and of itself creates, at least, perceptions of conflict of interest and suggests recusal.  That this consideration is wrapped in other conflicting and confusing stories just adds to and supports the need for the caution of recusal.  

    Speculation on whether or not this aids one side or another seems unnecessary--it is the defense's motion.   Mr. O'Mara may continue on with the case in that it is an important and challenging one for a criminal defense attorney and interruption of his practice to provide a defense for Zimmerman may be seen as a longer term investment.  Assuming full cooperation from the defendant and the family, Mr. O'Mara may try to fulfill a commitment to what was started.  

    Speculation is essential (or entertaining, anyway) (none / 0) (#11)
    by Mitch Guthman on Tue Apr 17, 2012 at 10:38:24 AM EST
    I understand it's a defense motion but it's the question of whether and how it benefits the defense is that makes it noteworthy. It does appear that the conflict, if any, runs in favor of the defendant.  If I'm correct about that (and I'm pretty sure that's what O'Mara is claiming) then one would suppose it would be the prosecution and not the defense making such a motion.

    Why would the defense argue that there is a problem with (1) a television commentator who might be prone to broadcast defense propaganda and (2) a judge who might somehow be influenced by her relationship to said pro-defense propagandist?  

    So the question remains and needs to be endlessly speculated upon:  How can this possibly be in Zimmerman's best interest?


    Agreed. the speculation (none / 0) (#13)
    by KeysDan on Tue Apr 17, 2012 at 11:13:52 AM EST
    is entertaining, and, for readers of TL, educational.   It seems that I may have expressed my thought about speculation on the point of the directions that benefits flow from the motion clumsily.   My intent was that, as a defense motion,  we could start with the assumption that it was to the defense's benefit, but, as you say, why  the defense takes that position is the question to ponder.  Then, we let the speculation begin.

    From  my perspective, issues concerning the jury pool are a big factor, but, maybe, we need to back-up. Given SYG, the defense may begin with a motion for immunity from prosecution; a procedure that hinges, in important measure, on the discretion of the judge.  A ruling in favor of the defendant at that  point, or a denial of applicability, or a deferral to a jury are places to start speculation.   And, as for potential conflicts or credibility, the issue of the judge's recusal is critical to justice as well as to  public perceptions of it.


    O'Mara's duty is to his client (none / 0) (#18)
    by Mitch Guthman on Tue Apr 17, 2012 at 12:52:56 PM EST
    Perceptions of the justice system shouldn't really be uppermost in O'Mara's mind.  His duty is to represent his client.  If papering the judge is good for Zimmerman, then he should do it.  But if it's bad for Zimmerman then O'Mara shouldn't do it.

    Legal argument might be interesting for the lawyers and if Zimmerman is very, very lucky he may find some judge willing to take him off the hook, case closed.  If not, there's a very good chance that this case will be tried to a jury.  If most of the jury pool walks into that courtroom with the image of Zimmerman as a hothead with an itchy trigger finger then his goose is as good as cooked.  

    They need to humanize Zimmerman right now, not later when all the legal alternatives are gone and they are forced to trial.


    Don;t see any incompatibilities here. (none / 0) (#19)
    by KeysDan on Tue Apr 17, 2012 at 01:15:09 PM EST
    His legal strategy is to serve his client and obtain justice as he sees it to so serve.  And, this objective  entails integration of perceptions that may help and seeks to casts away those that may hurt.

    I don't see here that we know (none / 0) (#16)
    by Towanda on Tue Apr 17, 2012 at 11:36:19 AM EST
    whether O'Mara advised Zimmerman to approve this filing for recusal.

    Is it possible that O'Mara may have advised against it, but that this could be another case of Zimmerman, Family, & Friends, et al., making a poor decision?  One that O'Mara has to implement?

    O'Mara doesn't want Recksiedler. (none / 0) (#22)
    by Gandydancer on Fri May 11, 2012 at 09:31:18 PM EST
    All this hoohaw about how he's missing an opportunity to influence the jury pool is second or third order stuff. He doesn't want Recksiedler. Maybe he knows something about her, and he wants the chance to pull another card from the deck. It's the most straightforward explanation.