O'Mara Requests New Judge in George Zimmerman Case
George Zimmerman's attorneys, Mark O'Mara and Don West, have filed a motion to recuse Judge Lester. The 17 page motion, chock full of examples of why Zimmerman believes the judge is biased and should not preside over either a Stand Your Ground hearing or trial, is here.
The motion also takes a shot at State's Attorney Angela Corey for not bringing the case to a grand jury, and at the woefully weak Affidavit the state filed in support of the second degree murder charges.
Under Florida law, the judge must accept the facts as alleged in the motion as true. The question becomes whether the facts as alleged in the motion would reasonably cause George Zimmerman to fear he will not get fair treatment from the Judge, and whether his fear is objectively reasonable.
I think the motion is spot on. [More..]
The state intends to oppose it. I received this e-mail from the State's Attorney's office a few hours ago:
Good Afternoon. We have received requests asking for a response to the Defendant’s “Verified Motion to Disqualify Trial Judge.” The State Attorney’s Office just received the Motion. The State objects to the Defendant trying to disqualify Judge Lester. We will file a formal response to the Defendant’s Motion early next week.
Judge Lester made his personal view of Zimmerman's credibility clear at the bond hearing. As I wrote then,
This judge is going to have a hard time believing anything Zimmerman says in the future. At a Stand Your Ground hearing, Zimmerman will have to make his case based on the physical evidence and witness statements, since the judge is unlikely to find his testimony alone sufficient.
But now we have a much more troubling situation, one that I think the courts will recognize. Judge Lester impugned George Zimmerman's character, saying he "flouted the system." He said he exhibited disrespect for the judicial process. He said he was a manipulator. He doesn't think Zimmerman is credible. He has suggested there is probable cause for the state to charge him with a crime for misrepresentations in his bail application. He is holding the threat of contempt over Zimmerman's head. The state presented no evidence other than a flimsy affidavit that failed to include information it had contradicting its theory of guilt, and he found the evidence against Zimmerman "strong." In setting bail at a million dollars, he didn't even acknowledge the strength of the defense evidence presented and admitted at the hearing. He even gratuitously threw in he thought Zimmerman might be preparing to flee.
The question is whether a reasonable person in Zimmerman's situation -- a defendant in his court -- would fear the judge is biased as a result of his comments and rulings.
O'Mara did everything possible to placate the judge, to no avail. He tried agreeing with the judge and criticizing his client -- too much so, in the eyes of many.
I think this was O'Mara's strategy all along, at least since the hearing at which bond was revoked. He waited, giving the judge every opportunity to be fair at the hearing on resetting bond. There wasn't much to be gained by a huge battle after the revocation. He'd increase the likelihood bond would be denied and be stuck in a habeas action appealing that ruling while his client stayed in jail. He has said his strategy at the last bond hearing was part of a greater, overall plan. I think he knew going into the last hearing he could use it as an opportunity to expose the judge's bias. And he made a careful record, which he used extensively in his motion to recuse.
Also, I wouldn't be surprised if Judge Lester wants off this case. Between the media demands for information, the public scrutiny of every detail, and the demands of his other cases, it's got to be a major headache.[Added: This is O'Mara's second motion to recuse a judge, but the motion he filed in April was based on section (d)(2) of the rule (affinity of judge to an interested person) not the impartiality section (d)(1). Although he mentions impartiality in the first motion, he cites a case law for his statement, not the rule, and it seems obvious to me the first motion is filed only under section (d)(2) (although the state might disagree.)
(f) Determination--Initial Motion. --The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.
(g) Determination--Successive Motions. --If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.
If Judge Lester treats the motion as the first one filed under Section (d)(1), he has to treat the facts as true. Only if he deems it a second motion under (d)(1) does he have discretion to rule on whether they are true or not.
If the motion to recuse is denied, I believe Zimmerman can request a writ of prohibition preventing the case from going forward while the appeals court reviews the issue.
If the motion is granted, who will be appointed? When Judge Recksielder recused herself, the next judge in line declined because he used to practice with O'Mara and O'Mara is godfather to one of his children. How many other judges are there in Seminole County?
Will they bring in a retired judge? A judge from another county or district?
O'Mara was right to file the motion. I expect the state will argue that the motion is insufficient on its face, that all Lester did was issue an adverse ruling, he didn't express an opinion as to his views of the overall case, and that a reasonable person in Zimmerman's situation would not fear he couldn't get a fair trial (or SYG hearing.) Or maybe they will try to cast it as a successive motion. I wonder if Judge Lester will even wait for their reply.
Put yourself in Zimmerman's shoes: The issue is how he feels, and whether his feelings are reasonable. Would you, if you were George Zimmerman, fear not getting a fair trial before Judge Lester?
In other Zimmerman case news, the Judge ruled Witness 9's second statement (an audio conversation) can be released, as well as the jail calls O'Mara sought to keep from public release.
The State advises (through e-mail):
As for Judge Lester’s Order regarding Witness #9 and the jail calls, we are working to post those to the [media] site. Please understand this process takes time. As of right now, Witness #9 and some of the jail calls will be available Monday at 11 a.m. We will continue to upload more jail calls, and I will update you when they are available.
|< Friday Open Thread | Weekend Open Thread >|