George Zimmerman: State Files Response on Recusal of Judge
The state has filed its response (available here) in the 5th District Court of Appeals to George Zimmerman's request for a Writ of Prohibition seeking to have Judge Lester removed from the case.
Shorter version: The judge gave Zimmerman a well-deserved tongue lashing, but his fear he won't get a fair trial from the judge is not objectively reasonable, and thus his motion to recuse was not legally sufficient and Lester was right to deny it.
None of the comments by the trial court rise to the level of being legally sufficient to establish an objectively reasonable fear by Petitioner that he will not receive a fair trial by the judge. Instead, the judge was simply giving Petitioner a well deserved tongue lashing for allowing others to mislead the court about his passport and his financial situation.
The test is whether a reasonable person in George Zimmerman's position would fear not getting a fair trial from this judge. [More...]
As I wrote here:
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.
I also don't think much of the state's argument that this is O'Mara's second motion to recuse a judge based on impartiality. The motion O'Mara 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). (The rule is here.) Although O'Mara 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).
The import: If O'Mara's motion to recuse Lester was the first motion filed under Section (d)(1), he has to treat the facts as true. Only if it is considered a second motion under (d)(1) does the judge have discretion to rule on whether the alleged facts are true or not.
The state's response was entirely predictable.
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.
The state says Zimmerman's fear was not objectively reasonable. Put yourself in Zimmerman's shoes: The issue is how he feels, and whether his fear is reasonable. Would you, if you were George Zimmerman, fear not getting a fair trial before Judge Lester? I think any reasonable person would have that fear. We'll see what the 5th Circuit says.
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