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.)

Fla. R. Jud. Admin. 2.330 (2012):

(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 >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    The point where Lester really went off the rails: (5.00 / 1) (#16)
    by redwolf on Sat Jul 14, 2012 at 01:57:22 AM EST
    Accusing Zimmerman of planing to flee without any evidence to support such a claim. All the things Zimmerman needed in order to flee the country were turned over before the court even noticed them.  How does a sitting judge go around making up planing to flee stories?  Is this normal for american judges?

    Maybe more so ... (5.00 / 1) (#21)
    by heidelja on Sat Jul 14, 2012 at 05:03:26 AM EST
    ...applicable to the absurd notion GZ lied than whether he'd flee is State v Godby, 498 So 2d 692 (Fla: Dist Court of Appeals, 5th Dist 1986) which stated when citing People v Gillette, 126 AppDiv 665, 111 NYS 133:

    "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony."

    I would say that it is not normal for an American judge who claims to act per the law. Kenneth Lester seems to have another personal agenda.


    Reply To: Maybe More So (none / 0) (#158)
    by Say what on Mon Jul 23, 2012 at 09:45:38 AM EST
    Didn't the judge have to respond to the prosecution, who filed a complaint to the court, with regards to taped jail calls, and new passport?   May Zimm have used codes intentionally, to try to oust the judge?  He knew his calls were taped.  During Bond 2 hearing Judge Lester alerted the defense, Murder 2 is a strong case.  

    Overturning On Appeal (5.00 / 1) (#23)
    by WestTexasFlorida on Sat Jul 14, 2012 at 06:39:24 AM EST
    Lester may want to remove himself.  If he remains on the case, and, Zimmerman is convicted....this will be sufficient enough to overturn a conviction on appeal.

    And...another 4-6 month wait on an appeal of a judge's recusal...and I think Governor Scott and AG Pam Bondi are going to get nervous...as this case will well spill over into 2014 and impact their re-election campaigns.

    All this time and money so far...and still dealing with the Bond.  It is going to be one long ride

    The Order denying Closure of Discovery (5.00 / 1) (#71)
    by cboldt on Sun Jul 15, 2012 at 07:49:54 AM EST
    Reading Lester's July 12 Order, denying closure of W9's second statement and 140+ jailhouse calls (closure being the term for blocking from public access), I notice that Lester appears to be aware of the public discourse surrounding the case. He writes, "The public discussion relating to this case indicates that the Defendant's attitude toward race may become an issue at trial.  Adding this statement to the discourse will simply be another piece of the puzzle to be relied upon by those who want to believe there was a racial motive to the shooting, and will be dismissed by those who claim that there was no such motive."

    I wonder how extensive Lester's exposure is, to the public discourse, as he completely discounted that part of the public discourse engaged in by the town of Sanford and SPD (justifying absence of arrest) prior to Corey being named.

    The order is also interesting for its treatment of Zimmerman's right to a fair trial.  He says Zimmerman is guaranteed that, and that release of the material may impact that, "however," he says he has to release the material anyway.  The rationale is basically that the release won't hurt, much; that it doesn't rise to the level of serious and imminent harm to the administration of justice.

    A couple of other small points.  He allows that Zimmerman may disclose the nature of his relationship with W9, but may not disclose her name.  That seems like a restraint on free speech, and while Zimmerman is apt to respect the judge's order, I see that her name is already published by the press.

    Without admonishing the state for it's calling 140+ jailhouse calls "discovery," he does tell the state that it should not provide recorded calls unless they are subject to discovery under Rule 3.220.  Rule 3.220 says the information that is subject to discovery limits witness ID to those who have "information that may be relevant."  That same relevancy limitation isn't stated as to other elements of discovery, but it's reasonable to assume the limitation is intended.  Otherwise the state could produce all sorts of irrelevant material as a way to trigger the sunshine provisions, to whatever end the state finds advantageous to its persecution.

    Not pertaining to the Order Denying Closure, but I noticed this when reading the Discovery Rule, part (H) of the state's disclosure obligation is "whether there has been any electronic surveillance, including wiretapping, of the premises of the defendant or of conversations to which the defendant was a party and any documents relating thereto"  The state's answer on May 14 was "None known to the state at this time."  The jailhouse calls aren't in the nature of electronic surveillance as the law defines it; but I wonder if the state was wiretapping his residence at any time between February 26th and May 14th.

    Reading Lester's July 12 Order (none / 0) (#72)
    by LeaNder on Sun Jul 15, 2012 at 08:16:57 AM EST
    Reading Lester's July 12 Order

    Were would I find that, if not here?


    18th Circuit Court Media Advisories (none / 0) (#73)
    by cboldt on Sun Jul 15, 2012 at 08:26:32 AM EST
    Date Differences (none / 0) (#86)
    by cboldt on Sun Jul 15, 2012 at 10:32:45 AM EST
    The 18th Circuit document website assigns dates that material is posted, which can be and often are different from the dates of the documents.  Lester's July 12 order is entered on the website as of July 13.

    07-13-12 : Order Denying Reconsideration of Release

    I use the actual date of the document (or try to, errors creep in more frequently than I like), which is usually on one of the last pages.

    The court's docket page is afflicted the same way, assigning dates that can be post-event.  The date difference can be a few days (e.g., over a weekend).


    Time stamp (none / 0) (#91)
    by Cylinder on Sun Jul 15, 2012 at 11:28:55 AM EST
    Yup. If you examine the Clerk of Court stamp on the [i]Motion to Disqualify[/i], you find that it filed with the court on July 13 at 11:20 AM. The court's [i]Order Denying Motion to Reconsider[/i] was entered on July 13 at 12:02 PM.

    So maybe O'Mara gets another shot over the 42 minute difference. Maybe there was a phone call and a hurried filing for his parting shot.

    I'm joking...I think...


    The operative date is date of service (none / 0) (#97)
    by cboldt on Sun Jul 15, 2012 at 11:54:02 AM EST
    "Date of service" or something like that.

    The clerk can stamp items in an order that differs from the date of service.  The Order denying closure was DONE and ORDERED on July 12th, with copies delivered to the parties on the 13th.  The clerk's stamp comes at a time AFTER the Order and statement of delivery have been completed.

    I don't think O'Mara has a serious objection the release of 140+ jailhouse calls, at least insofar as they affect his case.  And I don't think he has a concern about W9's incendiary allegation, beyond the effect it will have to stoke public animus against Zimmerman.  There is at least one unreasonable crank in any group of 30 people, W9 is that crank.


    thanks Boldt (none / 0) (#92)
    by LeaNder on Sun Jul 15, 2012 at 11:32:03 AM EST
    I understood.

    Interestingly I head this argument:

    2) no alternatives than chance of venue, would protect the Defendant's right to a fair trial

    really early.

    Would it make sense in this case? This judge is really interesting. I have to admit. I have the highest respect from him, since I wouldn't have expected it.


    It's Not Proven Zimmerman lied to the court (5.00 / 1) (#133)
    by Nettles18 on Sun Jul 15, 2012 at 10:19:07 PM EST
    We have no knowledge what role George Zimmerman played determining his financial status with his lawyer.  Did George and Mark talk about this or did Mark get the information from the family?  Judge Lester has publicly called the Zimmermans liars and their entire family liars.  To the issue of the passport, much of the media and public has made the same mistake the Judge made.  Based on the prosecution narrative only, George has been found guilty of hiding a second passport.  We know that he was talking with his wife about one being in his gym bag.  She says "I have one in the Safety Deposit Box".  She doesn't say the other one.  It is possible that she is talking about her own passport.  Perhaps she didn't want to mention I have a passport in the safety deposit box so as not to give that info. out to whoever was listening around her.  But based on the prosecution's word only and by charging Shellie with perjury, the State assured the Zimmermans wouldn't be heard from on June 29th either.  It quite a leap to accuse George of planning to flee.  We have the benefit of hindsight.  At the first opportunity to talk with his lawyer privately, he disclosed the money and during the move, we are told found another passport and turned it over to his lawyer.  I see no proof that's not true.  Yet the Judge made quite a leap.  If you were the defendant, how much confidence would you have in this Judge weighing evidence in the case?  

    It's Not Proven Shellie Lied Either (5.00 / 1) (#134)
    by Nettles18 on Sun Jul 15, 2012 at 10:28:26 PM EST
    Her perjury trial has yet to take place but in Judge Lester's court, he convicted her publicly on lying and encouraged the charges that were eventually brought against her.  She also has a presumption of innocent until proven guilty.  Yes the court was misled, but I don't believe it was intentional or a grand plan.  Shellie acknowledged the donation account and didn't know the current balance or an estimate of what had come in and deferred to her brother-in-law.  And for that she was publicly called a liar.  I trust Judge Lester won't be the Judge in her case?

    No it means he would be prosecuted as a minor. (2.00 / 2) (#154)
    by J Upchurch on Tue Jul 17, 2012 at 09:53:20 AM EST
    I think 17 years olds are responsible for their actions. I get annoyed when people refer to Trayvon as a child who apparently didn't know that he shouldn't assault strangers.

    A minor is not fully responsible (5.00 / 1) (#155)
    by Mary2012 on Tue Jul 17, 2012 at 11:28:04 AM EST
    A 17 yr old is still a minor, still living at home, still answers to their parents.  A 17 yr old in most cases, if not all, is not like a 20 yr old, not like a 25 yr old, etc. Minors have not reached full development.

    For that matter, hasn't GZ been 'cut some breaks'?  Suppose the superior of the officer he assaulted by pushing him up against a wall & causing injury (GZs own words, in effect) hadn't used his discretion?  or are you saying he shouldn't have used his discretion?  Wasn't GZ 20 or 21 or some such age at the time?  I suppose that's alright though isn't it?

    re "TM assaulting strangers": No one knows yet exactly how this all happened.  A judge and/ or jury will make that determination.



    O'Mara didn't mention it (none / 0) (#1)
    by cboldt on Fri Jul 13, 2012 at 09:59:23 PM EST
    Lester said that Zimmerman had no basis for Zimmerman thinking he would be not be charged.  "... there has been nothing presented which indicates he [Zimmerman] was misled into believing he would not be charged with a crime."

    What about the press release from the town of Sanford justifying the absence of arrest, and news reports that all the evidence supports Zimmerman's account of self defense?

    That was used to conclude that "any sense of betrayal [that Zimmerman might feel toward "the system"] would be unreasonable."

    Only One Judge Left (none / 0) (#2)
    by J Upchurch on Fri Jul 13, 2012 at 10:08:00 PM EST

    According this article there is one judge left in Seminole county qualified to try this case.

    The judge who was originally assigned the case was Circuit Judge Jessica Recksiedler, one of four possible judges to oversee what Zimmerman's attorneys and the state expect to be a trial process that could last well into 2013.

    I think a judge that doesn't have run for election in Seminole county would be an improvement.

    Brevard County Judge (none / 0) (#3)
    by J Upchurch on Fri Jul 13, 2012 at 10:11:25 PM EST
    I was also wondering if they could use a Brevard county judge since it is the same circuit.

    J Upchurch (none / 0) (#13)
    by Jeralyn on Fri Jul 13, 2012 at 11:48:43 PM EST
    Thanks for the link but urls here must be in html format because long ones skew the site and I have to delete the entire comment. You can use the link button at the top of the comment bos, the html coding at the bottom, or at least get a short url from tinyurl.com or bitly.



    Why , Oh Why? (none / 0) (#31)
    by RickyJim on Sat Jul 14, 2012 at 08:09:15 AM EST
    Does the US (actually the individual states), remain the only country in the world that elects judges and prosecutors?  Former Supreme Court Justice O'Connor, Alan Dershowitz and others have complained but no state legislatures have been interested in changing things, AFAIK.  I prefer a civil service (don't laugh, it would be better than what we have now) meritocracy where judges especially have to pass a series of examinations to get their position.  Law schools in the US do offer many classes for judges, but how many take them?

    CA requires state judges and admin. (none / 0) (#54)
    by oculus on Sat Jul 14, 2012 at 01:34:14 PM EST
    law judges to take continuing judicial educ. courses.  

    Actually, he said "flaunted"... (none / 0) (#4)
    by unitron on Fri Jul 13, 2012 at 10:11:47 PM EST
    ...and if he were to be widely ridiculed for having done so, it wouldn't be undeserved.

    He later issued a revised version with the even more incorrect "flauted".

    Unless Zimmerman is an archaic flute player, it should have been "flouted".

    Just one (none / 0) (#5)
    by spectator on Fri Jul 13, 2012 at 10:35:59 PM EST
    of many bias comments, how could any neutral judge not see the whole picture here, the case is unique and Lester has done some serious damage to Zimmerman, to put it mild.

    What he's done is only going to fade away so much,
    his personal beliefs were uncalled for, this wasn't just a puny local matter, he really let loose.

    Been wondering all along if it had a dual purpose,we'll see.


    Zimmerman did himself damage. (4.40 / 5) (#60)
    by Donald from Hawaii on Sat Jul 14, 2012 at 07:15:15 PM EST
    He failed to get himself competent legal representation when it became clear that this matter was not going to be quietly dropped. (Whether or not he was led to belive that by asomeone in the police or state's attorney's office is completely beside the point.

    He and his wife clearly attempted to mislead the court regarding the financial assets that were at their disposal. Naivete? Maybe. Excusable? No.

    Should Judge Lester recuse himself? Probably. He made several intemperate and possibly prejudicial remarks about Zimmerman that were unworthy of his position on the bench. I don't have a problem with Mark O'Mara seeking another judge.

    But let's please drop the notion that George Zimmerman is some sort of Pollyana-like naif and a mere pawn in the system. He's 28 years old, and he needs to start holding himself accountable for his own actions. "Gee, I didn't know" may work when you're in elementary school, but doesn't cut it in the real world.



    no (none / 0) (#10)
    by pyrrho on Fri Jul 13, 2012 at 11:15:03 PM EST
    it was corrected to "flouted"... "flauted" seems to be a new spelling from the press or something.  Evidently, this is a culturally surreal term which is impossible to organize in the human mind.  

    ha (none / 0) (#25)
    by TeresaInPa on Sat Jul 14, 2012 at 06:40:48 AM EST
    good catch.

    Mark Nejame (none / 0) (#6)
    by spectator on Fri Jul 13, 2012 at 11:04:03 PM EST
    had his 2 cents but his tongue is tied being an acquaintance of Lester,appellate aside... if Lester stays what about other rulings and a potential jury pool he's infected ?, their not going to easily forget if it goes.

    If the test is that the (none / 0) (#7)
    by Darby on Fri Jul 13, 2012 at 11:07:05 PM EST
    defendant fears the judge is biased, how can anybody honestly disagree with this motion?

    I am curious as to why O'Mara didn't make mention of the judge revoking bail on the fly on June 1 in today's motion.

    Movant has 10 days (none / 0) (#11)
    by cboldt on Fri Jul 13, 2012 at 11:17:41 PM EST
    The reason O'Mara didn't mention the June 1 action or June 11 order, is that a Motion to Disqualify must be filed within 10 days of the particular judicial action being used as factual basis.

    A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after the discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for immediate ruling

    The ruling today (none / 0) (#8)
    by Stobberdobber on Fri Jul 13, 2012 at 11:10:34 PM EST
    also contained a reference to a change of venue statement. I think he already strongly stated in that particular document that he is biased for future hearings. This is worrisome because Sanford is a small town and I know it goes by county but this has been sensationalized to a degree bigger than Casey Anthony in my opinion. I didn't pay attention to that case but that case was not mentioned in any way by the President either. It didn't have Al and Jesse touting it across the nation. You get my point. I don't think Zimmerman CAN get a fair trial anywhere but even less so in Seminole County.

    Re: New Trial Venue (none / 0) (#125)
    by WestTexasFlorida on Sun Jul 15, 2012 at 04:36:05 PM EST
    Actually, Zimmerman would be best served to stay in Seminole County, with a Seminole County jury.

    Sanford and the rest of Seminole County are a different make up....politically, demographically, and culturally.   I do not want to get political here...but most of the residents of this county would be favorable to a defendant claiming self-defense.  The city of Sanford itself, not so

    Also, having served jury duty in the county a few times...those who appear for jury duty are usually the middle and upper class residents of the county

    The worst thing for Zimmerman would be a change of venue to a South Florida county or a Tampa Bay area county


    I think this is O'Mara's strategy... (none / 0) (#9)
    by pyrrho on Fri Jul 13, 2012 at 11:11:58 PM EST
    just imo, ianal, and will adjust my opinion.  I think when O'Mara saw it going bad for GZ with Lester, he jujitsu style went with it, characterizing it as lying (as the state had preferred to call it), presenting a mini-trial based on the "strong evidence" wording and ignoring what really pissed Lester off.  Now he has something over Lester, and can bring this sort of thing against him later if he doesn't recuse himself.  I think O'Mara would probably be better off if Lester didn't step down, because now he has something over Lester's head and already established every top defense attorney's ground work, basis for appeal that doesn't seem specious later, since it will be a point O'Mara can say he's been trying to make from the start.  OTOH, a new judge will be just as unimpressed by the lie and start more or less clean, with no record of objection by the defense, and more immune to such if it becomes a habit of the defense to claim judicial impropriety.  

    At least, this makes more sense to me than anything else, I didn't get why O'Mara seemed so weak in his demeanor and seemed to draw the judge to make terrible pronouncements on his client with sort  of baits like appealing to GZs age when he's 28 years old.    

    I think GZ is guilty, and if so, O'Mara probably knows it, and the way that works is you throw wrenches in the judicial system until it makes a big enough hole for your client to walk through.

    Guilty of what? (5.00 / 1) (#69)
    by Gandydancer on Sun Jul 15, 2012 at 05:41:31 AM EST
    Zimmerman will have difficulty (none / 0) (#12)
    by oculus on Fri Jul 13, 2012 at 11:28:18 PM EST
    succeeding re this challenge to Judge Lester, given Zimmerman already burned a challenge to Judge link to me!

    the first motion was under (none / 0) (#14)
    by Jeralyn on Sat Jul 14, 2012 at 12:34:13 AM EST
    a different section of the rule, which seems to exempt this from being considered a "successive motion." See the "Added" section to my post above, or the rule here.

    Sure looks like judge-shopping to me (none / 0) (#15)
    by oculus on Sat Jul 14, 2012 at 12:44:24 AM EST
    but you could be correct. Judge Lester decides the motion doesn't be?

    Order issued after Motion to Disqualify (none / 0) (#17)
    by MJW on Sat Jul 14, 2012 at 04:08:02 AM EST
    Judge Lester issued an order, adverse to Zimmerman, after the motion to disqualify was filed. Someone on another blog cited Fuster-Escalona v. Wisotsky for the proposition that a judge may not act further in a case until the motion to disqualify is decided.

    Sarcasm detector test underway (5.00 / 1) (#18)
    by cboldt on Sat Jul 14, 2012 at 04:33:08 AM EST
    Under the language of Fuster-Escalona v. Wisotsky, Lester is undermining the integrity of the judicial process.

    Logically, any decision by a judge under a cloud of prejudice would be suspect, thus undermining the integrity of the court proceeding and any movement toward judgment.

    Ironic, in that Lester accuses Zimmerman of doing that, on account of Zimmerman's "lack of trust" or "lying" or "flouting the system."

    Funny thing is, I believe quite a few defendants in fact have bad attitudes (and aim to get out of legal trouble by lying about the case in chief, etc.), and that incidence doesn't undermine the integrity of the court.

    Anyway, now that Zimmerman has really undermined the integrity of the court, Lester can revoke bond again.  Makes as much sense to blame Zimmerman for the court's screw-up, as it does to blame him for Martin's actions.


    I don't understand (none / 0) (#20)
    by DebFrmHell on Sat Jul 14, 2012 at 04:42:02 AM EST
    how his bond can be revoked because of this.  Could you explain it a little further for the "IANALs"?

    Your sarcasm detector needs adjustment (none / 0) (#22)
    by cboldt on Sat Jul 14, 2012 at 06:27:31 AM EST
    I was making a cynical remark that has no basis in law when I said that Lester could revoke Zimmerman's bond, for filing a motion that undermines the integrity of the court.

    But I think the motion presents an opportunity for some illumination of what "integrity of the court" means, by comparing Lester's insinuation that Zimmerman was undermining it, with what the law defines judicial integrity as.  Judicial integrity is something the court has (or not), not something that that defendant has.  Defendant can undermine judicial integrity, for example by influencing witnesses, but a lying defendant is not an occurrence that, by itself, undermines the ability of the court to reach a fair and impartial conclusion.


    Isn't the basis for the sarcasm... (5.00 / 1) (#33)
    by heidelja on Sat Jul 14, 2012 at 08:21:31 AM EST
    ...the earlier implied (on another previous "thread") that because GZ might eventually face some drummed up "perjury" charge his bond then might be revoked?

    Although this would not stand (after an appeal) because the "perjury" was for GZ's alleged manner on Apr 20.  The clever machinations of Lester's skewed "judicial thinking" now thoroughly delineated for what he sees to be the lack "respect for the judicial process" would go replayed for any possible "new" action whenever it happened to have occurred.


    I got no (none / 0) (#26)
    by DebFrmHell on Sat Jul 14, 2012 at 06:55:06 AM EST
    sarcasm detector...unless it is mine!  LOL!  I thought you were being all serious and "cboldt-ty" on me.

    You have undermined your credibility with me.  Oh, the irony...



    Order of the Orders, or something (none / 0) (#55)
    by cboldt on Sat Jul 14, 2012 at 01:42:22 PM EST
    The Order denying the Motion to not release 140-some jailhouse calls and W9's additional statement, was completed and filed on July 12th.  O'Mara's motion to disqualify Lester was filed on the 13th.

    So, as of now, there is no Order having issued post the filing of the Motion to Disqualify.


    Connected? (none / 0) (#56)
    by friendofinnocence on Sat Jul 14, 2012 at 02:02:53 PM EST
    Could it be that Lester denying the motion to not release those phone calls was the last straw for Zimmerman and O'Mara?

    I still don't understand why calls that supposedly have nothing to do with the case are being released as "evidence."


    Last Straw (none / 0) (#57)
    by cboldt on Sat Jul 14, 2012 at 03:59:48 PM EST
    Some of the contents of the Order of July 5 were the trigger for this motion.  I think we can take it on its face.  I don't think the Order releasing 140+ jailhouse calls would have resulted in so much as a peep of further objection.  On that point, O'Mara had a preference, he argued for it, and he lost.  I think Lester's order on that matter is correct.

    The "problem" as far as publishing "too much" here is that the prosecution is taking tangential material that it knows or hopes will "damage" Zimmerman (just annoying pressure points is enough, even if there is no damage in the court), and calling it "discovery."  The state has the keys to make all sorts of private material public.  All it has to do is say it is "discovery," and then, by operation of law, it becomes public.

    This is not done with 100% of non-attorney-client jailhouse calls, as a matter of routine.  Corey decided that all of Zimmerman's jailhouse calls would be "discovery," and that makes them public.


    I wonder (none / 0) (#62)
    by lousy1 on Sat Jul 14, 2012 at 08:59:21 PM EST
    If the state has a warrant to monitor all Zimmerman's calls.

    Could that be a reason to keep him in Florida?


    Search Warrant (none / 0) (#63)
    by cboldt on Sat Jul 14, 2012 at 09:23:03 PM EST
    Good question on the scope of jurisdiction of a state judge on telephone search orders.  I would assume he is under surveillance.  That's a good assumption to make, in any event, for anybody.  The phone system is not "private" the way one ordinarily uses that word.  But it is an especially good assumption for Zimmerman, as the state (and feds) will want to introduce any remark that can possibly be construed as confession or racism into the court of public opinion against him.

    Anyway, I believe the Florida Courts have no power to order compliance to an out of state phone office, for interception and recording of telephone communication contents.  The DOJ could be tapping his communications in any and all states (jurisdiction is interstate), but they are fishing for a separate crime and wouldn't necessarily share their activity with the state.


    How many other judges .... (none / 0) (#19)
    by heidelja on Sat Jul 14, 2012 at 04:40:54 AM EST
    ....are there in Seminole County?

    According to here it has been 3 down and 7 left standing.  If including those available from Brevard County, there are an additional 16 in the pool of Circuit Court judges available. I think it should be a foregone conclusion that another judge would enter into the mix for a trial following any SYG motion that results in GZ being denied immunity.

    It is unclear to me why one would suggest there is only one remaining. However, given the politically charged nature of this matter, a retired judge could serve it best. Just not one so old that might die during the proceedings.

    Rule of Judicial Administration 2.215(b)(10))? (none / 0) (#49)
    by J Upchurch on Sat Jul 14, 2012 at 11:35:49 AM EST
    I quoted the article that suggested there are only four judges qualified to hear the case in Seminole county. IANAL, but there are educational requirements for judges in capital cases (Rule of Judicial Administration 2.215(b)(10)) that might apply, even though Zimmerman is only charged with 2nd degree. Maybe they apply the rule on 2nd degree also in case the prosecution decides to refile as 1st degree?

    Oh my god.... ;) (none / 0) (#121)
    by Jello333 on Sun Jul 15, 2012 at 03:49:17 PM EST
    "a retired judge could serve it best. Just not one so old that might die during the proceedings."

    bias question (none / 0) (#24)
    by lawstudent on Sat Jul 14, 2012 at 06:40:26 AM EST
    I'm having a hard time following the logic here.  Bias, in my view, suggests influence by an outside source that has no bearing on the case.  While many (GZ, his legal team, and supporters) will no doubt believe that Lester is biased against GZ per his comments to date about credibility, his alleged manipulation of the system, and the alleged strength of the state's case, these are all comments made in connection with his decisions/hearings/rulings on issues that have been before him in these proceedings.  It is unremarkable that Lester expressed opinions on them.    

    So while on the one hand, you could say Lester is technically "biased", based on his prior rulings, he is just doing his job IN THIS CASE.  To me, a better case of bias would be if Judge Lester were drinking buddies with Serino, or close friends with Zimmerman's father.  The fact that his opinions in the case go against Zimmerman to a certain degree does not mean he is biased.  

    He's supposed to make reasoned decisions (none / 0) (#27)
    by cboldt on Sat Jul 14, 2012 at 06:56:22 AM EST
    Bias doesn't necessarily come from an outside relationship, e.g., your suggestion of hypothetical coziness with Serino.  The judge (or anybody) can be biased of his own right, for example, for irrational reasons like he doesn't like the way defendant looks or carries himself.

    Adverse decisions aren't, of their own right, a basis for finding bias.  O'Mara explained how he reached the conclusion that Lester is biased - Lester didn't account for relevant facts in reaching some of his conclusions, and some of Lester's remarks about Zimmerman's character are gratuitous, he didn't need to make the remarks at all, in order to rule as he did.

    Courts are supposed to be neutral, steely-eyed reviewers of fact and law.  While a judge might in fact have a bias, that bias should never appear to have played a part in reaching a conclusion.


    I think an important distinction (none / 0) (#36)
    by Darby on Sat Jul 14, 2012 at 08:32:11 AM EST
    Is not just that Lester's gratutuitious negative commentary on  gz prove he is biased, but that it can reasonably make gz elieve that the judge is biased.

    Possibly Lester... (none / 0) (#37)
    by heidelja on Sat Jul 14, 2012 at 08:34:17 AM EST
    ...should be seen to be prejudiced more so than biased in the legal sense. Probably to too many prejudiced takes on a more racial connotation than being biased so biased goes used. Certainly, Lester's order could have stated with prejudice which does take on subtle connotations in law, but might have been too obviously stating the obvious if he had done so.

    Any (none / 0) (#29)
    by spectator on Sat Jul 14, 2012 at 07:40:15 AM EST
    judge has a responsibility to protect the legal process from any negative influence, if one can't adjust to the gravity of a case like this..., then it's a problem.

    Lester just doesn't seem to get it and is now a participant in some sloppy behavior, just my opinion.


    Negative Influence (5.00 / 1) (#30)
    by cboldt on Sat Jul 14, 2012 at 08:01:18 AM EST
    One of the points I'm making is that not every negative influence rises to the level of compromising the integrity of the process.  Trials are full of "negative influences," see the admonition that the trier of fact has the opportunity to view the demeanor of a witness (which is code for being able to decide if the witness is telling the truth).  I don't think there is any argument that lies to the jury are a negative influence, but we don't conclude the jury is anything but impartial, based on the fact that some witnesses are bald-faced liars.

    Lester seems confused by this distinction, and tries to meld two different principles - the duty of witnesses to be truthful, and the duty of the court to be impartial.  Either deviation (lying witnesses and biased judges) is a negative influence on obtaining impartial justice.

    I'm not of a mind that Lester is treating this case any differently from how he treats other cases; heavily biased in favor of the prosecution.  The outcome looks different in this case (Lester looks biased), because the state's evidence in the case in chief is weak and conjectural.  If Zimmerman didn't have a substantial body of exculpatory evidence, plus the history of SPD saying, very publicly, that the evidence shows his use of force was justified under the law, then Lester's conclusions wouldn't have the taint of bias.


    I see (none / 0) (#34)
    by spectator on Sat Jul 14, 2012 at 08:26:13 AM EST
    what you mean, my blurry meaning was to his own actions and needless damage to a defendant,a little Fl tidbit, i'm sure it's been here before:

    A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

    oop's (none / 0) (#35)
    by spectator on Sat Jul 14, 2012 at 08:30:55 AM EST
    wrong one.

    Remarks from Legal analyst David Fussell (none / 0) (#28)
    by cboldt on Sat Jul 14, 2012 at 07:33:52 AM EST
    George Zimmerman's attorneys file motion to disqualify judge - Central Florida News 13 - Adam Longo and John W. Davis - July 14, 2012

    "He doesn't want to try the case and have it reversed on appeal, and probably doesn't want to take a lot of time and have this case go up to the appellate court now. I would suspect after he reads it, considers it and thinks it over, he'll probably recuse himself," Fussell concluded.

    I don't think Lester is concerned about the time taken to appeal a rejection of O'Mara's motion, but I do agree that he'd have a concern about a trial result being reversed on appeal.  That said, the chances of a conviction at the conclusion of a trial to jury are slim, given the evidence in hand, and therefore the chance of O'Mara appealing the trial result based on judicial bias is also slim.

    I think any bias in an SYG ruling adverse to Zimmerman would be manifest in the logic applied in the order (conjecture by the state being given equal or greater weight than defense evidence in favor of self defense), and that the order would be appealed on basis other than judicial bias.

    If Lester grants this motion, I don't think it will be out of concern of being reversed on the trial outcome, or out of concern that defending his impartiality takes too much time.  I think he'll grant it on the same basis that he followed the Paul case - he disagree with the law, but he's bound to follow it.

    The state's counterargument will likely be lame, conclusory in nature.  "It isn't bias if it's true" sort of statements, without getting into whether or not Lester's conclusions and gratuitous remarks do, in fact, have the support of evidence.  Not that we'll ever see it, but I'd like to read Lester's defense of his own impartiality, wherein he addresses each of the statements O'Mara flagged as indicating bias.

    lester wants to get rid of the case (none / 0) (#32)
    by LeaNder on Sat Jul 14, 2012 at 08:13:25 AM EST
    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.

    I wondered about the flight risk too, although I haven't looked at the data that could have made him write it. The second passport issue has never been really urgently on my mind.

    But strictly that is the most realistic scenario, Jeralyn, and I agree with your hypothesis.

    The problem is who would want to take the case as judge, everybody will have his problems. Except one that is biased pro-Zimmerman from my perspective neutral from yours.

    Besides, Lester, it feels in spite of all the libels directed his way lately from the more explicit voices, would have been really fair in the first bond hearing, had he been given all the data. Obviously security is an issue, and its probably not cheap, just as Zimmerman cannot work and hide at the same time during the time up to the trial. This would have been a really easy argument for O'Mara, the problem is it wasn't one at the time. How would you answer the question: Why?

    The real problem still seems the affidavit and not the judge. Why doesn't Dershowitz with the support of legal experts like Jeralyn target Angela Corey, wouldn't that be a way of getting at the core of your issues about how the case is handled?

    What's interesting to me is that (none / 0) (#40)
    by Anne on Sat Jul 14, 2012 at 09:19:16 AM EST
    the take people had on Lester after the very first hearing was that he didn't think much of the state's case; much was made of Lester's snide comments directed at the state, and I don't recall anyone getting all riled up here about it.  The comments here were generally positive about Lester then, with many convinced Lester's attitude would bode well for Zimmerman.  I don't recall anyone being concerned then that Lester wouldn't be able to be fair.

    If Lester really wanted off this case, wouldn't there be other ways to accomplish that than putting on a performance hoping to trigger the defense's motion to remove him?  Isn't there something he could have done that would have allowed him to get out and leave the essential impartiality of the whole matter intact?

    I have to keep reminding myself that this is Florida, where things don't always happen in ways that make sense.

    Certainly, Zimmerman is entitled to a fair trial - every defendant is - it's as basic to the whole process as anything, and it certainly looks as if that has been compromised in this case.

    I just don't know if it's possible to undo the damage that's been done, even with a new judge; "fair" isn't reached by going as far out in the other direction - it won't balance as much as it will convince people that the whole process has been compromised.

    What a mess.


    What Snide Remarks (none / 0) (#41)
    by RickyJim on Sat Jul 14, 2012 at 09:28:54 AM EST
    about the state's case did Lester make?  Or is letting O'Mara demolish Dale Gilbreath, a tacit snide remark?

    Go back and read people's comments (none / 0) (#43)
    by Anne on Sat Jul 14, 2012 at 09:46:02 AM EST
    about the hearing; there was a general feeling that the judge was not impressed with the state's performance.  There were even comments about the judge's body language, for heaven's sake.

    I don't mean to suggest that I agreed with those opinions - my point in raising it was to contrast people's reactions when they thought the judge was on "their" side with how they are feeling about him now.


    I think the key words... (5.00 / 1) (#46)
    by heidelja on Sat Jul 14, 2012 at 10:16:00 AM EST
    ...from Apr 20 by Lester were that it was "well taken."  But strangely later to have gone stated (first in his order revoking bond?) that the state's case was "strong"!

    YES, there was a change in Lester's tone between that of Apr 20 and possibly as soon after as Apr 27 which went without publicity when he stated he needed more information than O'Mara's update to GZ's financial status before modifying GZ's bond. The more information finally coming about on June 1 by the state's grandstanding motion to revoke bond.

    While it can legitimately be wondered whether Lester has had a better way to recuse himself than wrongfully incite public opinion, his irratic decision making on nd after June 1 has really been little different than the one expressed on Apr 27 requiring more information when he could have quietly then modified GZ's bond and nothing much be made further of it.

    What we will never soon know are the influencing whispers off the DA network that Lester certainly has heard by reason his wife is an ADA for the Orange and Osceola County State Attorney's Office located in Orlando. Certainly, he can never watch local news in Central Florida and not hear something every night. In one sense his manner reflecting the headlines of continuous Central Florida Channel 13 News. Unfortunalely, the news does not run stories suggesting the adverse affect a judge's prejudiced/biased opinions have on inciting and fueling adverse public comments made on the Internet. Possibly not being Internet savvy he might not even understand this.


    irratic decision (none / 0) (#98)
    by LeaNder on Sun Jul 15, 2012 at 11:54:45 AM EST
    As I understand legal processes, Lester's irratic decisions can be challenged. The question is are they irratic?

    the influencing whispers off the DA network (none / 0) (#99)
    by LeaNder on Sun Jul 15, 2012 at 12:00:04 PM EST
    the influencing whispers off the DA network

    Ok, whoever is in charge, I understand this is something that is meant to go unchallenged. ;)

    How is Aspen doing?


    you are correct Anne (none / 0) (#96)
    by LeaNder on Sun Jul 15, 2012 at 11:48:16 AM EST
    by now I agree I am wrong. For the very simple reason he could have avoided it. He obviously didn't want to. Absolutely correct:

    If Lester really wanted off this case, wouldn't there be other ways to accomplish that than putting on a performance hoping to trigger the defense's motion to remove him?

    But strictly, I didn't expect it, and admittedly I was very, very surprised about what his orders (?), or more precisely how confrontationally he put it, like others argue, he could have left these passage out after all.  

    Very interesting person, indeed. And it surely makes sense that he takes his time, to study matters. Law surely is an interesting perspective into society. Just as it is not so sure anymore if left as a self-definition has any meaning ...


    Does it seem Corey's (none / 0) (#38)
    by spectator on Sat Jul 14, 2012 at 08:50:53 AM EST
    rant had an effect?

    What rant (none / 0) (#39)
    by Darby on Sat Jul 14, 2012 at 08:54:27 AM EST
    At Dershowitz?.

    Yes (none / 0) (#47)
    by spectator on Sat Jul 14, 2012 at 10:36:49 AM EST
     does it seem a tad quiet since...?

    Do we know everything? (none / 0) (#42)
    by MikeB on Sat Jul 14, 2012 at 09:29:58 AM EST
    As far as I know, the prosecution has not offered up a single shred of evidence to counter Zimmerman's versions of events. But the state thinks they have a case. And in my opinion, Lester is clearly showing a disposition towards guilt.

    But I'm not convinced we have all the information. Is it possible that there is "smoking gun" (no pun intended) evidence that substantially hurts Zimmerman? My point, maybe there is something we don't know that won't come out until trial that the judge already knows. That doesn't defend his obvious bias, but in trying to be impartial, I'm sure the state doesn't want to turn this into the Duke Lacrosse debacle either.

    IMO (5.00 / 1) (#44)
    by friendofinnocence on Sat Jul 14, 2012 at 09:52:42 AM EST
    Any smoking gun would have been leaked or released a long time ago.  There certainly is the possibility of a reverse smoking gun, that being the tox report.  I think if it shows a positive result fro any kind of drug that would cause aggressive behavior, the prosecution will be hamstrung.

    Recall that they had no reliable evidence to disprove Zimmerman's story at the time the case was transferred to Corey.  Since then, we have the mishmash of DeeDee's statements added as evidence, and that is all.


    Not just DeeDee (none / 0) (#50)
    by cboldt on Sat Jul 14, 2012 at 11:48:32 AM EST
    The state added DeeDee and Sybrina (Martin is the screamer) to SPD's material, by the time it crafted the arrest and charging documents.

    I don't think the state has any more inculpatory material than that, plus Zimmerman's inconsistencies.  It does not have evidence to refute Zimmerman's account that Martin initiated physical contact, administered a beat down for over 40 seconds (other than Martin's family assigning the scream to Martin), uttered a death threat, and made a move that Zimmerman interpreted as going for the sidearm; that the shot was at very close range (Martin was not in retreat) and from a face-to-face positioning.

    The cutoff for producing discovery was set as August 8, docket sounding.  I have no reason to think the state would complete its production before the deadline.  I expect it would sit on evidence, in whatever fashion it finds most advantageous for obtaining a conviction, until the last minute.


    Also important (none / 0) (#53)
    by Darby on Sat Jul 14, 2012 at 01:22:16 PM EST
    Is that from the beginning Tracy Martin did not identify the screams as martins whereas gz's father said they were his son

    Then What is Discovery All About? (none / 0) (#79)
    by RickyJim on Sun Jul 15, 2012 at 09:59:57 AM EST
    The cutoff for producing discovery was set as August 8, docket sounding.  I have no reason to think the state would complete its production before the deadline.  I expect it would sit on evidence, in whatever fashion it finds most advantageous for obtaining a conviction, until the last minute.

    Are you accusing the prosecution of withholding evidence they plan to enter during a trial?  They are allowed to do that?


    Docket Sounding vs. Trial (none / 0) (#82)
    by cboldt on Sun Jul 15, 2012 at 10:07:28 AM EST
    I'm not accusing the state of planning to withhold evidence until trial.  It risks losing that evidence in the trial, if it doesn't produce it in discovery - and it risks the entire case if it fails to produce exculpatory evidence in its possession.

    My remark was that the state might withhold production until August 8, docket sounding.  Docket sounding is not the trial.

    I did learn that the state can belay obtaining certain evidence until the trial, without running afoul of the open book discovery rule.  The is a Florida case where Defendant was asked to produce a voice exemplar during trial.  Defendant objected as the time for discovery was closed, but the court held against Defendant, noting that the visual appearance, voice, fit of clothing ("if the gloves fits" comes to mind), and other evidentiary materials may come up for the first time at trial, and this is not a violation of the obligation to the state to disclose the evidence it has in its possession.

    I can't think of any way that comes into play in the Zimmerman case, but I thought it was interesting.


    Isn't all the States evidence (none / 0) (#45)
    by lousy1 on Sat Jul 14, 2012 at 10:01:12 AM EST
    now entered into discovery?

    While, the  public releases may be missing some details I doubt that anything remotely prejudicial to Zimmerman would be suppressed by Lester.

    W9 is a good example. All parties agree that W9s testimony can not be entered except (possibly) as rebuttal evidence.

    Lester released it anyway.


    Not everything (none / 0) (#52)
    by J Upchurch on Sat Jul 14, 2012 at 12:07:52 PM EST
    We know we haven't seen everything. They are uploading Zimmerman's  phone conversations Monday. I've seen references to material we haven't seen and other items, like photos of Martin's body that will not be published. O'Mara has seen everything and he states that a grand jury probably would not have indicted Zimmerman. That's a pretty strong statement.

    Whatabout the cell phone records... (none / 0) (#65)
    by heidelja on Sat Jul 14, 2012 at 10:52:58 PM EST
    ...that sustantiates DeeDee's calling, in particular, and other possible calls of interest to/from TM's cell phone on Feb 26? These might be seen to surprisingly help GZ. As for call records involving GZ's phone they could establish when he called the SPD NEN number versus when the call audio is known to have begun at about 7:09pm.  


    ...there is something we don't know that won't come out until trial that the judge already knows

    would signify immense wrong doing in the "judicial process" and I think it behooves Lester to immediately disqualify himself. ( I write this to mean that O'Mara does not know of it either.)

    I can't help but think Lester may have gotten wind of some of the jail phone conversations prior to Apr 27 precipitatig a "change" in demeanor to want more information rather than simply modify bond as he could have. Besides "peer/political pressure" to me this is only logical reason that he did what he has done during June.


    Well... (5.00 / 3) (#75)
    by Anne on Sun Jul 15, 2012 at 08:56:04 AM EST
    you "realize," don't you, that records of cell phone "calls" don't contain recordings of what was said, don't you?

    You do also realize, I hope, that just because Florida has a "Sunshine Law," that both sides have the opportunity to object to "release" of information, and that release of information is not supposed to substitute for an actual "trial" - we, the public, are not trying the case, although it would be hard to "convince" many of those here, who seem to "think" they are both trying the "case" and acting as "jury."

    And I rather doubt that, with respect to the jailhouse phone "conversations," that it is a matter of Lester getting wind of something that hurts Zimmerman, as much as it is a matter of whether those conversations are "relevant" to the case itself - because that, after all, is the controlling issue, isn't it?  And let's not forget that there was some "consternation" over the release of the conversations that were already made; if I recall correctly, there was a lot of skepticism over what had been left out, how they could be "judged" without the context of the other conversations, etc.

    The truth is, I suspect, that those who support Zimmerman are worried that, because O'Mara has "objected" to the release of all the calls, there is something in them that doesn't "work" in Zimmerman's "favor."  So the question is, are those people only interested in Zimmerman being "vindicated," regardless of whether there is any "information" that would cast some "doubt" on whether he should be?

    And, I suppose that will raise for those same people why issues of Martin's "character" have not been a focal point of the case, or of this blog.  As near as I can tell, Martin was not a "criminal," not a member of any "gang," and while he may not have been the "perfect" teenager, or the "perfect" student, whatever imperfections he had would not  seem to be relevant to how he ended up shot to death - even though a lot of people just seem "itching" to make a case that they did.  


    Anne (none / 0) (#76)
    by friendofinnocence on Sun Jul 15, 2012 at 09:32:49 AM EST
    O'Mara has described those calls as being unrelated to the case.  I would think every citizen in this country would be outraged at the government releasing private phone conversations just because it can.

    The reason Martin's character isn't a focal point is because the MSM refuses to cover it, not because there isn't plenty of derogatory information which will come out eventually.  Even Fox News is afraid to "go there".  I suspect that will change after the election.  Zimmerman supporters don't need to mount a disinformation campaign as has been done from the beginning by Crump, they just need to get the truth out.

    I tried to keep this post within the local guidelines.  Hope I succeeded.


    If part of Zimmerman's account is true (none / 0) (#78)
    by cboldt on Sun Jul 15, 2012 at 09:52:41 AM EST
    It Martin threw the first punch, if Martin mounted Zimmerman and administered a beating, then Martin was committing a criminal act.  If Martin uttered a credible threat to kill Zimmerman, he was committing a felony.

    I don't think O'Mara has any concern that the release of 140+ jailhouse calls poses a threat to his case.  I suspect that release will be similar in character to the release of the FBI interviews seeking evidence of racial prejudice on Zimmerman's part - helpful to Zimmerman's case.  

    I suspect O'Mara's objection is related to the security of people in Zimmerman's circle of friends, although he only mentions privacy in his request for reconsideration.  His arguments in his June 18 motion are well stated, and his proposed remedy is a fair one.  Lester prefers to not get into an in-depth legal analysis of the applicability of sunshine to completely irrelevant material that the state denominates "discovery," instead just concluding that once the state does so, the material becomes public.  Lester also closed the door to non-party legal action to obtain "closure".


    Annie, this was my early central question (none / 0) (#81)
    by LeaNder on Sun Jul 15, 2012 at 10:01:52 AM EST
    So the question is, are those people only interested in Zimmerman being "vindicated," regardless of whether there is any "information" that would cast some "doubt" on whether he should be?

    Perfectly put, Anne, what puzzled me initially and made me take a closer look, by the way.

    There was one sentence by my father that drove me nuts as a teenager. The only person I met that ever understood this, was a director I watched working really carefully on the articulation of this sentence by an actor. It basically denies your perception of reality, declaring it impossible to exist.

    The sentence itself is almost impossible to translate. But in it's essence it would something like that can't be or that can't exist. Meaning in context: Impossible something like that ever happened, or is true.

    Google translate renders the original: Das gibts doch gar nicht! as: There is not the

    The rest is mirrors. The crowd that has decided that an innocent Trayvon Martin, once he is dead, cannot exist, would he be dead otherwise, blames the other side of preconceptions. And that's what is really interesting about this public debate.


    My sense is that the (none / 0) (#48)
    by KeysDan on Sat Jul 14, 2012 at 10:46:56 AM EST
    government will argue and the judge will hold that the defendant's motion is, essentially, the second motion under section d(l), (impartiality, citing the case reference in the first motion). And, hence, Judge Lester will deploy his discretion as to the truthfulness of the facts alleged, and deny the motion.

    However, the defendant's motion appears to recognize that distinct possibility and has been developed and written more for the eyes of the DCA than those of the judge.   It seems unlikely to me that the ireful Judge Lester wants to get out of the case at this point, and, even if he does, he would not do so with acknowledge of error.

    The public would understand a "second-bite at the apple technicality", and he would be safe in his adherence to the  'unbiased neutrality of the law.'  With the political overlays, including that of the ethically-challenged Governor Scott, a fair outcome will require appellate reviews, a new judge and a change of venue.  

    The rules don't admit that (none / 0) (#51)
    by cboldt on Sat Jul 14, 2012 at 11:53:51 AM EST
    The first motion was not taken under (d)(1), it was taken under (d)(2).  There is no way this motion can be taken as the second under (d)(1).

    Lester can still "deploy his discretion" and find that the motion is legally insufficient, but he doesn't have the benefit of (g), which describes the criteria for deciding successive (d)(1) motions.  O'Mara correctly cites the standard of review stated at (f), the judge shall only determine the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.  Although the facts alleged come directly from his order, so I don't see how he can deny them with a straight face.


    Oh Dear. (none / 0) (#58)
    by Tamta on Sat Jul 14, 2012 at 04:09:57 PM EST
    Now it seems that it is Zimmerman's connections which may have been influencing the investigation??? Right. link

    Do we have any evidence that the air marshal (none / 0) (#61)
    by SuzieTampa on Sat Jul 14, 2012 at 08:36:44 PM EST
    did something unethical to influence the investigation? As long as he wasn't coaching GZ to lie, it doesn't seem illegal or unethical for him to talk to GZ about the case, accompany him to interviews (as long as he didn't interfere) and hide him at his house.

    Because the Miami Herald outed him (I posted that previously) and published photos of him, he can expect threats.


    More the prosecution's fault (none / 0) (#66)
    by J Upchurch on Sat Jul 14, 2012 at 10:57:52 PM EST
    For not redacting the witness statements properly. They should have redacted his statement about his wife presiding at Zimmerman's wedding and identified himself as an air marshal.

    Of course, Osterman shouldn't have said he worked for Homeland Security and his job involves a lot of travel and shooting on his Facebook page.


    Witness 9 and FBI (none / 0) (#59)
    by J Upchurch on Sat Jul 14, 2012 at 06:55:34 PM EST
    As far as I can tell Witness#9 is the only person that would say on the record that Zimmerman was a racist. Did the FBI not interview her or have we not seen the interview?

    witness #9 (none / 0) (#68)
    by LeaNder on Sun Jul 15, 2012 at 05:05:06 AM EST
    the anonymous lady everybody thought was Zimmerman's ex-girlfriend. But I doubt by now.

    Admittedly i have only scanned the documents once, there was one that seemed irritated that her/his statements weren't kept anonymous as promised, I remember but did not pay more attention on it.

    Anyway, obviously Trekelle Perkins takes this call, and he promises to pass the info on to the lead investigator, so there you have some evidence that the "peer pressure" may be only part of the usual police routine. Obviously he has to.


    The caller (2.00 / 1) (#70)
    by lousy1 on Sun Jul 15, 2012 at 07:14:03 AM EST
    Claims to have a child.

    I can't see how this is admissible in any context. Its an anonymous call by someone claiming to know GZ. The caller offers no verifiable statements. AFAIK its Corey's sister.


    corey's sister (none / 0) (#84)
    by LeaNder on Sun Jul 15, 2012 at 10:27:56 AM EST
    so her sister can see into the future. Interesting, I didn't even know she had a sister, much less one that could read fortunes. But I am here to learn.

    I trust US agents to be able to find out if she really knows him or doesn't and that the things she says can be verified independently. I would assume that must have been the case. Otherwise we would get no chance to hear her testimony.

    Strictly my instinct tells me, it influenced judge Lester's decision. Let's see lousy1. Lousy expresses your feeling there should never have been a case or someone like you, or your hero, forced to stand trail, well adapted as you are to whatever winds are blowing? Correct?


    trail (none / 0) (#85)
    by LeaNder on Sun Jul 15, 2012 at 10:31:41 AM EST
    a trail of evidence may lead to a trial.

    Sorry I wouldn't characterize either party in (none / 0) (#106)
    by lousy1 on Sun Jul 15, 2012 at 12:35:43 PM EST
    this case as a hero. But I think we do differ on the victim.

    Why (none / 0) (#107)
    by lousy1 on Sun Jul 15, 2012 at 12:46:01 PM EST
    I trust US agents to be able to find out if she really knows him

    Which US agents?

    Strictly my instinct tells me, it influenced judge Lester's decision.

    I prefer to deal with facts.

    Lousy expresses your feeling there should never have been a case

    My observation about this case being brought to trial are based on by interpretation of the law and the currently known evidence.

    There is a significant group of people who believe the facts are insufficient to call for a trial including a number of legal scholars. Are you characterizing them as Lousy also?

    I am honored.


    You "prefer facts"?!? (5.00 / 1) (#124)
    by Yman on Sun Jul 15, 2012 at 04:28:45 PM EST
    One post after writing this:

    Its an anonymous call by someone claiming to know GZ. The caller offers no verifiable statements. AFAIK its Corey's sister.

    That's pretty funny.


    Thank you (none / 0) (#131)
    by lousy1 on Sun Jul 15, 2012 at 08:24:41 PM EST
    Its true also.

    That's the nice thing ... (none / 0) (#132)
    by Yman on Sun Jul 15, 2012 at 09:14:53 PM EST
    ... about making ridiculous statements qualified with "AFAIK".  You can put the most ridiculous, baseless evidence-free accusation behind them, and then simply throw up your hands and say "As far as I know ..."

    But claiming to prefer to deal in "facts" immediately afterward is seriously funny.


    Admissibility of W9 (none / 0) (#88)
    by cboldt on Sun Jul 15, 2012 at 10:38:45 AM EST
    The state is holding W9's testimony as potential rebuttal to Zimmerman offering character witness about himself.  If Zimmerman says he has no racial bias, the state will say "Oh yes you do, here is a person who will prove it."

    De la Rionda expressly said that W9's testimony is potentially relevant, in response to O'Mara's contention that her testimony was irrelevant and prejudicial.  Lester notes the potential introduction of W9 at trial, as well, echoing de la Rionda's statement.

    I agree that the testimony can't come in as "anonymous," but I believe the witness identified herself sufficiently to be known to the state.  The fact that her remark can't be corroborated (and we don't know for sure that it can't be) doesn't matter.  It is not unusual to have a single witness to an event, and the legal process allows that testimony to come in if it is relevant to an issue in the case.


    Can a statement be entered into (none / 0) (#105)
    by lousy1 on Sun Jul 15, 2012 at 12:33:11 PM EST
    discovery if it is anonymous?

    If her identity is known, doesn't it have to be disclosed as part of discovery? If not how would the defense be able to dispute her claim?

    Why didn't the FBI attempt to interview her?


    We have the record in front of us (none / 0) (#108)
    by cboldt on Sun Jul 15, 2012 at 12:55:12 PM EST
    I think W9 wanted to be anonymous, but gave enough information to the SPD that she could be contacted again, and in order to establish her input as "credible" rather than from some total stranger.

    Which reminds me, part of the discovery was supposed to be the contents of thousands of e-mails to SPD.  What's become of that?

    W9 doesn't get her wish to stay anonymous.  If she wants her input to play into the judicial process (arrest, charging, etc.), then she has to disclose her identity to the public.  Confronting the witness and all that.

    Zimmerman's ex-GF was interviewed by the FBI, record starts at P140 of the July 12 document dump.  I think W9 and Zimmerman's ex-gf (the one who took a restraining order) are the same person, but I understand there is some question that W9 may be a different person.  Lester says that Zimmerman is allowed to tell the public his relationship with W9, but not give her name - that supports finding that W9 is a person known to Zimmerman, and his ex-gf fits that bill.


    After the Crump and MSM campaign... (none / 0) (#110)
    by friendofinnocence on Sun Jul 15, 2012 at 01:06:20 PM EST
    It is important for Zimmerman to establish to a jury (if it gets that far) that he is not a racist.  Is there a limit to the number of witnesses the defense can call to offset W9's testimony?

    Yes, there is a limit (none / 0) (#112)
    by cboldt on Sun Jul 15, 2012 at 01:17:33 PM EST
    The court won't let days and days of witness testimony drag on, on a single point.  Each side has to choose the witnesses or evidence that it feels are most persuasive.  When the testimony becomes repetitive, the court cuts it off.

    As for the public perception, that is being addressed by the press accounts of the FBI interviews.

    I think it would be a mistake on the prosecution's part to try to characterize Zimmerman as a racist, to a jury.  It has W9 and that Mideastern co-worker, against everybody else who knew Zimmerman.  Leveling "incredible" allegations is not good trial strategy.  It makes the jury wonder what else you are stretching.


    Yeah, and I think O'Mara would FORCE... (none / 0) (#126)
    by Jello333 on Sun Jul 15, 2012 at 04:47:15 PM EST
    .... the judge to cut them off in regards to "George is not a racist, he's a good guy" character witnesses. Which would be a very, very good thing. First, the prosecution calls a couple of maybe semi-credible witnesses claiming George has some racist tendencies. And then the defense calls 5 witnesses to totally counter that. Then they call 5 more. Then 5 more. Until eventually the prosecution objects, and the judge sustains:

    "Alright Mr. O'Mara, you've made your point. All these witnesses are just repeating themselves, we don't need any more."

    "Ok, that's fine your honor, I'll just tell the other hundred or so character witnesses we have waiting out in the hall they can go home."

    How would THAT impact a a jury?


    I guess the prosecutor must agree (none / 0) (#64)
    by Darby on Sat Jul 14, 2012 at 10:39:56 PM EST
    that Lester is biased in their favor. I can't imagine any other reason they would be filing an objection.

    more like back at you (none / 0) (#67)
    by friendofinnocence on Sat Jul 14, 2012 at 11:30:47 PM EST
    My understanding, based on an earlier post by one of our local legal gurus, is the objection is simply the state objecting to O'Mara's motion as a matter of course.

    That is probably a simplistic interpretation, but I like to keep things simple.


    O'Mara's Motion Also Slammed the Prosection (none / 0) (#109)
    by J Upchurch on Sun Jul 15, 2012 at 12:56:52 PM EST
    for bypassing the grand jury. They have plenty of other stuff they will want to rebut.

    I didn't take it only as a slam (none / 0) (#111)
    by cboldt on Sun Jul 15, 2012 at 01:10:20 PM EST
    I took the point of O'Mara's statements of fact to Lester as corroboration for his (O'Mara's) contention that Zimmerman's self defense claim is strong, and the state's case is weak.  Those findings, combined with SPD's public pronouncement that all the evidence pointed to the shooting being justified, are part of the calculus that leads to a sense of betrayal in Zimmerman's mind.

    Those findings relating to the strength of evidence on opposing sides of the case also are supposed to feed into the calculus for setting bail, and not that he objects to the amount of bail, but Lester's order does not do this calculus at all.  O'Mara argues this point on pages 7-9 of his motion for disqualification.


    I recall (none / 0) (#113)
    by friendofinnocence on Sun Jul 15, 2012 at 01:28:40 PM EST
    reading at a Florida government site a State Attorney has to power to cancel or skip a Grand Jury.  I tried to find the link, but it just isn't my day.

    In any case, I think that complaint is going nowhere.  The State of Florida gave her the power to replace the scheduled Grand Jury with the infamous probable cause affidavit and arrest warrant, and she did it.


    Grand Jury only for Capital Cases (none / 0) (#114)
    by cboldt on Sun Jul 15, 2012 at 01:37:56 PM EST
    Corey was within her powers to choose to charge without use of a grand jury, although I read some mumblings somewhere that the Florida Legislature was considering making a grand jury mandatory if a special investigator/prosecutor was named - the idea being to not concentrate too much power in one "special" and temporary office.

    It's water over the dam, now.  Zimmerman's been charged, and the only way out is forward.  I don't think Corey is going to unilaterally drop charges (although she has the power to do that, too), so the only ways to dispose of the charge are through orders of the court.

    O'Mara's argument in his motion to disqualify is that his client reasonably feels the court is biased, and can't be trusted to render justice in this case.  He's not arguing for dismissal, he's arguing to get a hearing in front of a judge who will belay making decisions and pronouncements, until he is properly informed.


    The prosecution can skip the Grand Jury. (none / 0) (#117)
    by J Upchurch on Sun Jul 15, 2012 at 02:09:24 PM EST
    O'Mara point wasn't that what Corey did was improper, but that if Corey couldn't get a charge from a grand jury, then they had a weak case that would never get a conviction at trial.

    There is an implication that Corey won't overlook, but that wasn't his point. I wouldn't be surprised if Corey has already called O'Mara about it. She seems pretty thin-skinned from other reports.


    Yeah (none / 0) (#118)
    by friendofinnocence on Sun Jul 15, 2012 at 02:28:42 PM EST
    Corey's involvement certainly has the appearance of being orchestrated to circumvent Zimmerman's shot at getting sent home by a Grand Jury.

    But, as obvious as it seems, I can't prove it.


    Is it common in FL for defendants (none / 0) (#74)
    by JoeMenardo on Sun Jul 15, 2012 at 08:30:47 AM EST
    to mislead the court in the manner GZ did?  And if so, do those judges normally disqulaify themselves?  It would seem like any judge in that position would have issues with the defendants credibility.  Also, it seemed in the first Bond ruling the judge gave the defendant very favorable bond conditions.  How can O'mara claim prejudice now when GZ and his wife set up this situation?

    What's common in FL (5.00 / 1) (#122)
    by SuzieTampa on Sun Jul 15, 2012 at 04:21:01 PM EST
    For 12 years, I was a reporter and editor at a major daily in FL. I worked at 4 newspapers previously. I can tell you that I find this case unusual and was astounded when the judge judged the Zimmermans without having heard all of the evidence.

    Some defendants struggle, yell out and, yes, lie. O'Mara says the Zs soon told him about the extra passport and the PayPal money, and turned it over to him. I doubt that O'Mara would lie and risk being disbarred over this.


    my reply was meant for Joe Menardo (none / 0) (#123)
    by SuzieTampa on Sun Jul 15, 2012 at 04:22:33 PM EST
    Dismissal isn't premised on the bond increase (none / 0) (#77)
    by cboldt on Sun Jul 15, 2012 at 09:39:04 AM EST
    I think it is quite common for defendants to lie about one thing or another, and (despite Lester trying to make it so) doing so doesn't make the court biased, and doesn't compromise the ability of the court to reach a fair and impartial decision.

    The request for disqualification isn't based on the fact that Lester increased the bond amount, nor is based on a finding that the Zimmerman's set up the situation where the court wasn't apprised of the increased monies before April 27th.  For what it's  worth, the denial of bail wasn't premised on the monies, per se, but on the lie, on a finding that Defendant was "compromising the integrity of the judicial process."

    O'Mara states his basis for Zimmerman finding the judge to be biased - all one has to do to discern the basis is read the opinion, or, if that is too difficult, by reading Jeralyn's post.  The basis is all contained in the July 5 order.  The ultimate conclusion of that Order was favorable to Defendant, it granted bail, so the objections (or the basis that a reasonable person would find Lester to be biased) are all "other than" the ultimate decision.  O'Mara does not object to the amount of bail, either.


    I wrote this post (none / 0) (#80)
    by JoeMenardo on Sun Jul 15, 2012 at 10:00:15 AM EST
    having read the July 5h order and having had watched the bond hearing.  It seemed to me 1.)O'mara tried to argue his client was somehow apprehensive of the system which caused him to mislead the court and 2.)admitted his client misled the court and admitted his clent's wife misled the court.  I beleive Lester's ruling was in respose to that combined with GZ having misled the court about a valid passport he knew he had to turn in.  

    I guess I just don't see how any other judge would have ruled differently and am wondering how another judge would have handled it to make O'mara not feel he was being biased. I mean his attorney is the one who stated GZ misled the court.

    That's why I asked the question. It seems like GZ lied to a judge, lost credibilty and wants a 2nd try to rehab that credibility.  


    You seem to be missing the point (none / 0) (#83)
    by cboldt on Sun Jul 15, 2012 at 10:18:08 AM EST
    Of course Lester's Order was in response to the issue before him.  On the question of the passport, Lester has had a clear change of mind.  In an earlier order, he said he was satisfied that the omission of turning it over was an innocent oversight.  On July 5, he says it is evidence that supports his conclusion that Zimmerman planned to flee, but was thwarted by the state.  Lester didn't need to say that in his July 5 order, and the conclusion is a fairly bold accusation with not much in the way of evidence in support, and no opportunity for evidence to the contrary.  Making a decision under a half informed condition is evidence of bias.

    O'Mara cites other examples of Lester reaching conclusions against Zimmerman, where Lester totally discounts or ignores evidence in his client's favor.  Those too are evidence of bias.

    Lester didn't need to say many of the things he said, in order to reach the conclusion the legal posture demanded.  But he said them, and in so doing, he produced evidence of his own bias against Zimmerman.  He could have said he didn't believe certain discrete statements (which damages Zimmerman's credibility) without reaching the conclusions he did.  "Zimmerman has no reasonable basis to feel betrayed," "Zimmerman was planning to flee," and a couple others.

    What the public deserves is a judge who waits until he has been fully informed, and who weighs the evidence before reaching a conclusion.  Lester is not that judge, in this case.


    Wouldn't knowingly (5.00 / 1) (#93)
    by JoeMenardo on Sun Jul 15, 2012 at 11:33:39 AM EST
    hiding a passport and cash before your bond hearding equate to a flight risk?  What other conclusion could a rational person draw?

    I fail to see the bias in any of the courts rulings esp. giving the original 150k bond and favorable bond conditions.


    I think you still miss the point (none / 0) (#95)
    by cboldt on Sun Jul 15, 2012 at 11:45:06 AM EST
    Either that, or I'm mistaking your application of the word "rulings."  O'Mara has not objected to any ruling.  He didn't object to the 30 days of unlawful detention, or to the increase in bail.  What he finds, and objects to, is evidence that Lester is biased against his client.

    I agree that hiding a passport and 150 grand should be read as indicia of flight risk.  O'Mara's point is that those pieces, without more, aren't enough to conclude, for sure, that Zimmerman was planning to flee.  But O'Mara said that Zimmerman planned to flee, only to be thwarted by the state.

    Do you think that a person who was told by the SPD that his actions were justified, that all the evidence supports his narrative, would be surprised and perhaps feel betrayed when he is charged with murder?  Lester says that Zimmerman had -no- reasonable basis for surprise or betrayal at being charged.  His order half-baked weasels out by saying "nothing has been presented which indicates he was misled."  So, nothing having been presented on this point, Lester still feels himself to be informed enough to conclude that Zimmerman unreasonably harbored mistrust.


    I always thought deceivig suspects (5.00 / 1) (#101)
    by JoeMenardo on Sun Jul 15, 2012 at 12:11:00 PM EST
    was a common police tactic.  Are you saying any suspect who has been deceived by police would in turn be justified in feeling they should lie during bond hearings?

    I didn't lik his language regarding fleeing, just like I didn't like his initial language about the passport saying "it was innocent oversight".  

    Let's also not forget O'mara chose to delay his motion hence causing the "30 day unlawful detention".

    Lastly, I understand your point about bias.  But, I've thought all his orders have been fair to GZ (a 1 million dollar bond which was paid in less than 24 hours).  If he is biased, I haven't seen it negatively impacting GZ.  


    The bias issue is forward looking (none / 0) (#103)
    by cboldt on Sun Jul 15, 2012 at 12:26:34 PM EST
    Yes, deceiving suspects during interrogation is common.  Serino did that with Zimmerman a few times.  But it is darned uncommon for the department to come out and issue an official statement to the public that a suspect is covered by an immunity statute, and that the department lacks probable cause to find otherwise, and that all the independent evidence supports the suspects narrative.

    So, I am not saying that any suspect who has been deceived by police would in turn be justified in feeling they should lie during bond hearings, and I don't think I've even suggested that.  I've tried to make my remarks in the context of events in this case, many events of which were fairly "big" publicity wise (unlike a police lie, in private, during an interrogation).

    I think you're getting closer to understanding my point, though you again repeat that you think all of Lester's orders have been fair, even though we are in some sort of agreement on that point, as I've said that so far O'Mara hasn't objected to any of the orders - not even what I consider to be an unlawful detention order.

    The point of raising bias is to protect against future actions by the court.  O'Mara expressly said that his client does not believe Lester would be objective in a self defense immunity hearing.


    O'Mara or Lester? (none / 0) (#102)
    by Aunt Polgara on Sun Jul 15, 2012 at 12:17:47 PM EST
    But O'Mara said that Zimmerman planned to flee, only to be thwarted by the state.

    Don't you mean Lester? :-)

    Heheheh (none / 0) (#104)
    by cboldt on Sun Jul 15, 2012 at 12:30:30 PM EST
    If that's the smallest mistake I make today, I'll consider the day a success ;-)

    Yes, I know.  That doesn't make sense either.


    cboldt... (none / 0) (#115)
    by Aunt Polgara on Sun Jul 15, 2012 at 01:41:22 PM EST
    If that's the smallest mistake I make today, I'll consider the day a success ;-)

    Gotta keep you on your toes, and we wouldn't want anyone to think that O'Mara believed GZ was preparing to run. :-)

    Thanks for all your hard work and insightful comments. I'm learning a lot.


    interesting argument by "bold" (none / 0) (#89)
    by LeaNder on Sun Jul 15, 2012 at 10:58:10 AM EST
    usually lying to a judge has consequences but it should not have in this case, since it is not related on the core matter? Or since every judge knows defendants lie anyway, as Cboldt tells us? I would like to see a decision of the US supreme court on these matters.

    Question: Is the financial disclosure a core condition in granting bond, or a non-negligent behavior of the defendant if he lies about it, even actively tries to hide money?

    But admittedly I was very surprised about Lester's decision. I wouldn't have expected it, even am on record to doubt any consequences on another legal bog. Surely I wouldn't have expected Lester to be so close to what the story feels to me.

    So I must be influenced by US media? He must be? Well I am not, I can assure you. I am even at times puzzled about fast judgements in articles like this that seem to move quite a bit beyond available provable evidence it feels.

    But yes, I deeply distrust Zimmerman's narrative.


    How to Rule Diffferently (none / 0) (#94)
    by cboldt on Sun Jul 15, 2012 at 11:34:20 AM EST
    -- I guess I just don't see how any other judge would have ruled differently --

    Lester could have, on June 1, taken O'Mara's objection to taking up the Motion to Revoke Bond at that time.  O'Mara's objection was well taken, as the rules provide Defendant a continuance (delay) when the matter is denial of bond.  After taking evidence, Lester could have composed an order denying bond that followed the legal requirements for denying bond, i.e., as articulated in the Paul case, instead of imposing detention unlawfully.  O'Mara didn't push either of those points directly, he moved for reconsideration, and apprised the court of the legal standard.

    On disposing of the Motion to Reconsider, on June 29, Lester could have acknowledged that defendant had damaged his credibility without saying that defendant had in fact planned to flee, and that defendant had no reasonable basis to believe he would not be charged, among other conclusions that lack a fully aired body of evidence.  He could have also acknowledged (although he had no need to) that defendant appears to have a legitimate self defense argument countering the state's allegation of murder.

    He wouldn't have ruled any differently.  The allegation of bias is not rooted in the finding that Zimmerman misled the court on April 20th.

    There is no way for Zimmerman to recover whatever credibility he lost on April 20th.  It's part of the record, and passes to the next judge.  What O'Mara objects to, and I think any reasonable person would, is that finding Zimmerman to be utterly untrustworthy, is all but a flight risk, should be charged with a 903.035(3) violation or in the alternative held in contempt, that he had no reasonable basis for feeling betrayed by or should not have trust in "the system," represents an unbiased point of view on the part of the court.  He'll take his knocks for sitting like a potted palm on April 20th (he did 30 days of unlawful detention plus ponied up 100 grand), but the extent of that taint should be tempered by other aspects of Zimmerman's actions.


    As a matter of "fact" (5.00 / 2) (#119)
    by expy on Sun Jul 15, 2012 at 03:28:23 PM EST
    The 30 days detention was not "unlawful".

    You may think that it exceeded the court's authority to order it, but as O'Mara chose not to challenge that, there was never any court ruling on that issue.

    Thus the record is that Lester gave an order, which as  Judge he is empowered to do. Zimmerman then complied with the order, turning himself in.  O'Mara chose to wait several weeks before bringing a renewed motion. A full adversary hearing was conducted on the motion, and the Judge issued a written opinion, setting an amount of bail which was within the defendant's ability to meet.

    The word "unlawful" has specific meaning. In this case the legal process was followed. That you don't agree with the rationale or like the results does not render the order "unlawful".  

    I see some irony in the fact that you are happy to label a court's order you disagree with as "unlawful", but angry at the prosecutor for assigning the same label to the shooting death of an unarmed teenager.


    We still have that sharp disagreement (none / 0) (#120)
    by cboldt on Sun Jul 15, 2012 at 03:41:14 PM EST
    The fact that O'Mara let it stand does not change the fact that Lester did not follow the procedure for holding on a no bond status, or that his Order failed to include the findings that are necessary to hold on a no bond status.  The legal process was not followed.  You invented one that allows detention without bail, without following the Paul case, but you've yet to cite any authority for that.

    You are the one hewing to the argument that it is lawful to hold a defendant on no bond status, without following the Paul case.


    That's the record in this case (5.00 / 2) (#127)
    by expy on Sun Jul 15, 2012 at 05:23:19 PM EST
    As a Judge, Lester is clothed with authority and the presumption that the orders he makes are lawful.

    Defendants are entitled to due process, but they aren't entitled to have everything decided in their favor.  

    There is a statute in Florida that gives the court broad authority to revoke bail. The Judge revoked bail under the authority of that statute.

    You are entitled to your opinion that the Judge made a legal error, but that doesn't render Zimmerman's detention "unlawful".

    Are you saying that the jailers of Seminole County were committing a crime by holding Zimmerman in their custody?  Is it your contention that when Zimmerman went to turn himself in, the jailers should have ignored the court order and sent Zimmerman home?


    Not a crime (5.00 / 1) (#128)
    by cboldt on Sun Jul 15, 2012 at 05:34:15 PM EST
    I am not saying the jailers were committing a crime, or that they should have ignored the court order.  I am not disagreeing that court orders are presumed lawful.  I am saying that had the no bond status detention order of June 1 been appealed, it would have been reversed as being an unlawful order.

    I recall the statute you cited, and my argument was that the fact that a statute or rule says bond may be revoked is not the end of the legal inquiry.  The Paul case describes what a court must find, and record as a finding, in order to hold Defendant on a no-bond status.  I know of no exception that that authority, and am open to being corrected by a citation to authority.

    If your argument is one of semantics, that no order is unlawful until reversed, well, fine.  Word game to your hearts content, but that doesn't get to the legal difference of opinion we have, which is whether or not the Paul case controls the imposition of no bond detention, post a pretrial release.  You say it doesn't control, I say it does.


    legal difference of opinion (none / 0) (#130)
    by LeaNder on Sun Jul 15, 2012 at 06:22:09 PM EST
    Cboldt, I shouldn't interfere in educated lawyers' talk, but one question.

    Are you suggesting the original bond was still valid? And George Zimmerman's activities did not change anything in this context? No breach, nothing wrong with it? The mandatory disclosure of finances during a bond hearing are no real duty, but can be dealt with on the part of the defendants as they please? So if I, the defendant, own two houses and one has a high mortgage on it the other none at all, and I tell you--notice, you are the judge now--only about the one with the high mortgage, than that is no breach and there is nothing to worry about from your point of view? You will only raise the bond in the context of the same bond. And it was done exactly like that in how many cases?

    Does your Paul case deal with exactly this issue? Any other cases? If disclosure is only semi-mandatory there should be many similar cases not just one. I mean many must try to first not tell too much, if it has no real consequences. Links?


    I am still wondering, who is "Gracie"? Wasn't Gracie meant to do what Shellie did?


    Establishment of Docket Sounding (none / 0) (#90)
    by cboldt on Sun Jul 15, 2012 at 11:15:06 AM EST
    I think the date of docket sounding is established "mechanically," by adding a certain number of days post arraignment.  Arraignment was on May 8, 3 months later is August 8th.  The docket sounding date was established on the date of arraignment.

    The open book discovery process in Florida is somewhat similar to the civil system you describe, except the evidence flows directly between the parties.  Both parties get the same evidence.

    I agree with your question about de la Rionda's interviews.  He does not come across as open minded and curious.  He has a narrative, and what he is seeking is evidence to support his selected narrative.  When quizzing John about witnessing blows being struck, he hit his palm with his fist and asked "did you hear any sound like this?"  But when DeeDee said she heard something like a blow, de la Rionda simply accepted it and moved on.  De la Rionda is essentially "the police" at that point, conducting an independent investigation for evidence, so any deficiencies there can pretty well be assigned deficiencies in investigation.

    A judge is just a lawyer in a robe. (none / 0) (#129)
    by Gandydancer on Sun Jul 15, 2012 at 05:40:09 PM EST
    Thinking you'll get better decisions from judges than from lawyers is irrational.

    Down to the Wire (none / 0) (#135)
    by cboldt on Mon Jul 16, 2012 at 09:37:50 AM EST
    Zimmerman defense attorney will go to court today to stay judge's order on "witness 9" - Miami Herald - Frances Robles - 16 July 2012

    The defense attorney for George Zimmerman filed a motion Monday to put a stop to a judge's ruling that ordered the release of hundreds of his client's jailhouse phone calls and a statement from a witness who made damaging accusations against his client.

    And the state was/is scheduling release of that information for around 11:00 AM EDT today.

    George Zimmerman jail calls to be released today_ - Orlando Sentinel - Rene Stutzman and Jeff Weiner - 16 July 2012

    Special prosecutor Angela Corey is slated to release this morning more than 140 recorded phone calls that murder suspect George Zimmerman made from the Seminole County Jail. ...

    Check back after 11 a.m. for an update on what the calls reveal.

    Most people would have said, (none / 0) (#138)
    by Anne on Mon Jul 16, 2012 at 10:40:23 AM EST
    "for all I know," which indicates that one doesn't know one way or the other and is just throwing some far-fetched possibility out there; saying "as far as I know" indicates that one has reason to believe that what one has stated is true.

    Perhaps the better approach would have been to say, "oops - I meant to say 'as far as I know' and didn't intend for anyone to think I know or have been told the witness is Corey's sister."

    9 accuses GZ of molesting her (none / 0) (#139)
    by SuzieTampa on Mon Jul 16, 2012 at 11:42:36 AM EST
    Admissable?!? (5.00 / 1) (#141)
    by MJW on Mon Jul 16, 2012 at 12:33:12 PM EST
    How could a judge, in his wildest dreams, possibly decide this might be admissible eveidence in a 2nd degree murder trial?

    It's required by law. Take a peek at today's (none / 0) (#144)
    by Angel on Mon Jul 16, 2012 at 01:03:42 PM EST
    open thread for the details.

    That's certainly arguable (5.00 / 1) (#149)
    by MJW on Mon Jul 16, 2012 at 03:01:49 PM EST
    The public records act that "requires" release specifically exempts record sealed by the court. In Florida Freedom Newspapers v. McCrary the Florida supreme court upheld an order sealing prejudicial discovery.  It said:

    In summary, there is no first amendment right of access to pretrial discovery material. There is in Florida a statutory right of access to such material when it becomes a public record, but that statutory right must be balanced against the constitutional rights of a fair trial and due process.

    Miami Herald Publishing Co. v. Lewis established a three-pronged test:

    1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

    2. No alternatives are available, other than change of venue, which would protect a defendant's right to a fair trial; and

    3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

    In regard to prejudicial material that is completely irrelevant and inadmissible, the third factor is particularly applicable.  Sealing information which has nothing to do with the charges or trial is the narrowest restriction imaginable.


    Not even relevant (none / 0) (#147)
    by cboldt on Mon Jul 16, 2012 at 01:25:22 PM EST
    In his July 12 order, Lester tells the state to limit discovery to relevant or potentially relevant materials.  The statements about unwelcome sexual contact aren't relevant at all, in any way shape or form.  But Lester is taking the simple legal approach, in that if the state produces it in discovery, and it's not in the scope of a statutory exemption, then it's public - whether or not it's relevant.

    Rule 3.220 describes discovery as production of relevant material, so there is an argument that irrelevant material isn't discovery, and etc. as far as privacy interests and other countervailing forces go.

    Lester knows this material is inadmissible in the murder trial.  But he's looking at a separate legal issue when he's dealing with the sunshine law.


    What Is the Benefit to Society? (none / 0) (#148)
    by RickyJim on Mon Jul 16, 2012 at 02:15:47 PM EST
    Lester seems to say that the Sunshine Law obligates him to release irrelevant material in the State's possession.  If he is right, why not amend the law to just have relevant material released?  And the benefit to society to have discovery material in a forthcoming legal proceeding made public is?  What's good for the titillation the blogosphere is good for everybody?

    The question is relevance (none / 0) (#150)
    by cboldt on Mon Jul 16, 2012 at 03:10:50 PM EST
    I don't think it would be admitted (would have to review rules of evidence for criteria pertaining to "unduly prejudicial, not probative), but oculus, on another thread, finds the material relevant as rebuttal to an allegation of good character, by Zimmerman.

    I joked in a different thread (I think it was a different one) that the state could argue Zimmerman was trying to make a move on Martin.


    Character witness rebuttal (none / 0) (#152)
    by MJW on Mon Jul 16, 2012 at 03:58:47 PM EST
    oculus, on another thread, finds the material relevant as rebuttal to an allegation of good character, by Zimmerman.

    Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986):

    First, we agree that the court erred by allowing the state to cross-examine the appellant's character witness as to his knowledge of other specific arrests and accusations against appellant for the same type of crime. The rule is clear that the state may only rebut testimony on reputation for good moral character, by reputation testimony as to bad moral character, not by cross-examination about prior arrests or specific bad acts. Dixon v. State, 426 So.2d 1258 (Fla. 2d DCA 1983); Michaels v. State, 429 So.2d 338 (Fla. 2d DCA 1983); §§ 90.404(1)(a), 90.405, Fla. Stat. (1983). Here the state was allowed, through the guise of impeaching a character witness, to inform the jury that the appellant had been accused of other specific child sexual abuse crimes, evidence that is admitted to be irrelevant and inadmissible on the present charges, and of such a nature that we could hardly hold harmless.

    And that was a case involving sexual abuse.


    I couldn't get your link to work but I went (none / 0) (#140)
    by Angel on Mon Jul 16, 2012 at 11:51:32 AM EST
    directly to the Orlando Sentinel site - holy moly!  

    What Sort of Rules on Stuff Like This? (none / 0) (#142)
    by RickyJim on Mon Jul 16, 2012 at 12:34:49 PM EST
    Is the reason police were obliged to listen to this, the charges against Zimmerman?  So if somebody called them and they wanted to tell stuff somebody else did as a kid (like Trayvon Martin) they would tell them, not interested?  The prosecution says this may come into rebuttal to what?

    So that makes it excusable, if true? (none / 0) (#145)
    by Angel on Mon Jul 16, 2012 at 01:04:55 PM EST
    As near as I can tell, every incident except the last occurred when Zimmerman was a minor.

    Second Tape Has Racism Accusations (none / 0) (#146)
    by RickyJim on Mon Jul 16, 2012 at 01:13:05 PM EST
    State's Response to Motion to Disqualify (none / 0) (#157)
    by expy on Tue Jul 17, 2012 at 07:09:00 PM EST
    Something went wrong and the link above didn't show up. Here it is again (this time I used "preview" so it should show up)

    Link to State's Responsive Pleading