Florida Appeals Court Removes Judge Lester From George Zimmerman Case

By Jeralyn, Section Crime in the News
Posted on Wed Aug 29, 2012 at 11:42:18 PM EST
Tags: George Zimmerman, Trayvon Martin (all tags)

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Here is today's opinion by the 5th District Court of Appeals in Florida granting George Zimmerman's Writ of Prohibition and removing Judge Kenneth Lester from the case.

"A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a wellfounded fear of not receiving a fair and impartial trial."

Although many of the allegations in Zimmerman's motion, standing alone, do not meet the legal sufficiency test,1 and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

This is good news for George Zimmerman. And, in my view, the right decision. But who will be the new judge? Do they call retired judges in to serve in Florida?

Bmaz at Empty Wheel has more.

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Florida Appeals Court Removes Judge Lester From George Zimmerman Case | 41 comments (41 topical)

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Reports are it will likely be (none / 0) (#1)
by CoralGables on Thu Aug 30, 2012 at 12:06:43 AM EST

Circuit Judge Debra S. Nelson

: Debra S. Nelson (none / 0) (#3)
by lily on Thu Aug 30, 2012 at 12:46:18 AM EST

is the judge for the Shellie Zimmerman case.
Detailed Information for Case 592012CF001792A

Jerylyn (none / 0) (#2)
by bmaz on Thu Aug 30, 2012 at 12:38:57 AM EST

Do you think Biondi will file a petition for review?

Bondi's Office announced they won't appeal (none / 0) (#8)
by Jeralyn on Thu Aug 30, 2012 at 01:08:07 AM EST

Corey isn't saying anything, according to the Orlando Sentinel.

There will be no appeal, according to Florida's Office of Attorney General, which had argued in court paperwork that Lester should stay.

Likely judge cronyism might be... (none / 0) (#22)
by heidelja on Thu Aug 30, 2012 at 12:10:25 PM EST

...presumed in the ruling when studying the judges' backgrounds here.

Concurring judges Lawson and Cohen came to the 5th DCA from the 9th Judicial Circuit (Orlando and where O'Mara's office is located) and the dissenting judge, Evander, came from Lester's 18th Judicial Circuit (Brevard and Seminole Counties).


: There is... (5.00 / 1) (#23)
by bmaz on Thu Aug 30, 2012 at 12:31:35 PM EST

...not one shred to evidence to support such an assertion.

So George Zimmerman gets a different judge. (none / 0) (#4)
by Payaso on Thu Aug 30, 2012 at 12:52:01 AM EST

But will he get a better judge?

: Kinda hard to get a worse one (none / 0) (#7)
by Jello333 on Thu Aug 30, 2012 at 01:06:33 AM EST

Lester's bias was palpable.

What is wrong with retired judges? (none / 0) (#5)
by Redbrow on Thu Aug 30, 2012 at 12:55:01 AM EST

I hope it is a retired judge if for no other reason than Team Crump seems opposed to one so strongly, particularly Judge Eaton.

Natalie Jackson
‏@NatJackEsq
Judge Lester did a great job BUT as long as they are FAIR, UNBIAS, & NOT RETIRED, I don't care who the judge is

NatJack twit

I think they already said... (none / 0) (#6)
by Jello333 on Thu Aug 30, 2012 at 12:56:26 AM EST

... they weren't gonna appeal. So Lester is gone. But as for your question of whether or not they use retired judges in Florida?... the answer is apparently YES. That's because I've seen a couple of prominent anti-GZ blogs that are saying stuff like, "They just better not choose a retired judge." And even Natalie Jackson posted on Twitter today, something like, "I don't care who the new judge is, as long as they're unbiased, professional, and not retired."

Hey Natalie, what's so troublesome about retired judges? Maybe that they won't be so quick to BOW TO POLITICAL PRESSURE to rule the way YOU want? Hmmm....

BTD weighed in on this issue (none / 0) (#9)
by Peter G on Thu Aug 30, 2012 at 01:10:18 AM EST

and disagreed with the appellate decision in comments on another thread earlier.

He disagreed with the Florida statute (none / 0) (#10)
by Jeralyn on Thu Aug 30, 2012 at 01:27:07 AM EST

but agreed with BMaz who wrote:

But, given their rule, and how Lester has comported himself, I buy the appellate decision. Only in Florida....

The ruling did follow the Florida statute. Where we disagree is that I believe Lester did far more than just rule adversely to Zimmerman.


Adverse rulings (none / 0) (#11)
by MJW on Thu Aug 30, 2012 at 02:11:15 AM EST

Adverse rulings aren't grounds for disqualification, as the footnote in the opinion clearly states. Even the dissent admits "the trial court's order clearly manifested an exceedingly strong belief by the trial judge that Zimmerman had 'flouted' and 'tried to manipulate' the system."

The anti-Zimmerman forces hooted and cheered the judge's bond order, delighting in the notion that Zimmerman would lose for sure at the immunity hearing, since there was no way Judge Lester would find him credible. Then they're shocked Zimmerman, and now the district court, might see it the same way.


Boy Howdy... (none / 0) (#12)
by bmaz on Thu Aug 30, 2012 at 02:21:17 AM EST

...that is a VERY cogent comment. Honestly, I can see the case for this decision having gone the other way. But, I think the far better path, and the one that insures viable fairness and due process for the defendant, which is, and must be, the standard, militates in favor or the ruling the Court of Appeals made.

So, MJW, very well said.


I don't agree (none / 0) (#18)
by Big Tent Democrat on Thu Aug 30, 2012 at 07:51:31 AM EST

But I'm interested in this point, can Zimmerman be impeached by the court findings that Judge Lester made in his self defense hearing?

Moreover, if Lester has been disqualified, shouldn't his earlier rulings be vacated?


: Zimmerman hasn't yet had (none / 0) (#19)
by Jeralyn on Thu Aug 30, 2012 at 09:49:57 AM EST

a self-defense hearing. He has had three bond hearings. It was at the bond hearing and in his written order on bond that Lester expressed his bias. Although Zimmerman raised the strength of his self-defense case at the hearing on reinstating bond, introducing the statements of witnesses at the scene, and having one of the medics testify as to his injuries, Lester ignored the issue.
Judge Lester did not just rule adversely to Zimmerman. As I wrote in an earlier post:

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.
Zimmerman hasn't yet filed his motion to dismiss based on immunity from prosecution (for self-defense.) It's quite a ways off as they are still in the discovery phase. Florida allows defendants to depose witnesses and the depositions are still being scheduled. The state continues to supply new discovery, and the defense has not yet submitted all of its reciprocal discovery.

: Not likely (none / 0) (#24)
by MJW on Thu Aug 30, 2012 at 04:01:06 PM EST

But I'm interested in this point, can Zimmerman be impeached by the court findings that Judge Lester made in his self defense hearing?
Florida is very restrictive in what it allows as character evidence to attack a witness's credibility. It allows convictions for crimes involving dishonesty or punishable by imprisonment for more than a year, and evidence of the witness's reputation for (un)truthfulness within his or her community. It only allows evidence of specific conduct under very narrow circumstances which almost certainly don't apply here. I provided more detail in a previous comment.
Even in the case of prior convictions, the examination is pretty much limited to asking the witness about the existence of the convictions.
Moreover, if Lester has been disqualified, shouldn't his earlier rulings be vacated?
O'Mara has, as I recall, 20 days after a new judge is appointed to move to have any of Judge Lester's factual or legal ruling reconsidered.

I think BTD disagreed with the outcome too (none / 0) (#15)
by cboldt on Thu Aug 30, 2012 at 06:31:55 AM EST

BTD said that the outcome allows any person to use "adverse ruling" (that he doesn't like, but I would think a defendant/plaintiff would not like any adverse ruling) as justification for recusal.

I don't think the rule allows that. In Lester's case, it wasn't just that he'd formed an opinion (that Zimmerman is "always" manipulative), it was also the extent of evidence involved in forming that opinion.

The appellate decision wasn't based on adverse rulings, nor was the motion for disqualification based on adverse rulings. O'Mara didn't argue that the rulings were wrong, he argued that in delivering the ruling granting bail, Lester made remarks about Zimmerman's trustworthiness, and those remarks caused Zimmerman to feel Lester held a bias against him.


To be clear (5.00 / 1) (#17)
by Big Tent Democrat on Thu Aug 30, 2012 at 07:49:30 AM EST

the opinion actually does not say what the ruling is based on in any specific way.

It does not point to what particular acts or statements by Judge Lester created the "legal sufficiency" (what a phrase.)

I think the statute is ludicrous.

I think the paucity of actual analysis in the opinion is poor appellate work.

They should have used the federal appeals court trick of trying to label their decisions as "not a precedent."

If you are going to recuse a judge, you should explain why.

I think, reading the statute, the decision is correct. I think the opinion is a joke. I think the statute is ludicrous.


So When Should a Judge Be Tossed off a Case? (none / 0) (#21)
by RickyJim on Thu Aug 30, 2012 at 10:17:45 AM EST

Just how does the Florida law on when a party wants a judge removed from a case differ from those elsewhere? Obviously this situation arises all over the world and is perhaps even more important in cases where judges act also as juries.


See (none / 0) (#25)
by Big Tent Democrat on Thu Aug 30, 2012 at 04:25:36 PM EST

this.


: Sure, but it's up to the judge. No provision (none / 0) (#26)
by oculus on Thu Aug 30, 2012 at 04:31:48 PM EST

for a motion in fed. district court.

: A Judge Should Be His Own Judge? (none / 0) (#27)
by RickyJim on Thu Aug 30, 2012 at 05:59:06 PM EST

The statute you link to is about when a judge should recuse himself. Do you believe that the petitioner should have right to appeal to a higher body? I can see why a only Supreme Court justices can only recuse themselves but there is no need to have that in lower courts.

I'ts not unusual (none / 0) (#28)
by MJW on Thu Aug 30, 2012 at 06:23:06 PM EST

You and I may both want more details, but what the appellate court did wasn't some special treatment for the Zimmerman case. In Florida, writs of prohibition in disqualifications are often issued with almost no legal analysis. Sometimes the court doesn't even issue the writ, but just says it assumes the judge will recuse him- or herself.


"If you are going to recuse a judge, you (none / 0) (#29)
by RickyJim on Thu Aug 30, 2012 at 07:13:38 PM EST

should explain why". And shouldn't you even do a better job of explaining why if you indict somebody for Second Degree Murder? Is Florida so different from the rest of the country in giving explanations for judgments of "Legal Sufficiency"?


Defendant Zimmerman just (none / 0) (#13)
by oculus on Thu Aug 30, 2012 at 02:57:31 AM EST

scoredjust scored big. Wonder how he and judge #3 will fare?

: And in neither the ruling or (none / 0) (#14)
by oculus on Thu Aug 30, 2012 at 03:05:34 AM EST

the dissent is the subject of the other part of the procedure discussed. Surprising.

Judge Lester's Comment alone... (none / 0) (#16)
by deanno on Thu Aug 30, 2012 at 06:59:08 AM EST

stating that GZ was to stay away from the "victim's" family is in itself an example of bias.

: No, in most cases the (none / 0) (#20)
by Jeralyn on Thu Aug 30, 2012 at 09:52:01 AM EST

court issues a protective order barring the defendant from contacting the purported victim of the crime. In many places, the order enters automatically.

From the ... (none / 0) (#30)
by Yman on Fri Aug 31, 2012 at 10:10:31 AM EST

... "be careful what you wish for" file, new judge may be tougher than Lester. She's also the judge handling Shellie Zimmerman's perjury case.

Zimmerman's legal team might live to regret forcing the last judge off the case because Nelson runs a tight ship and tends to favor the prosecution, Central Florida lawyers said. A native of South Florida who did a brief stint at the Broward state attorney's office, Nelson is known for being a no-nonsense judge who keeps lawyers on their toes.
"I don't think they did themselves any favors," said attorney Jose Baez, best known for defending "tot mom" Casey Anthony. "She has a reputation of being more pro-prosecution than the previous judge. We have an expression: `The devil you know is much better than the devil you don't.' ...
His organization's annual poll of local judges show Nelson ranked close to the bottom in most categories. Lester scored highest among Seminole County felony court judges both overall and in the "freedom from bias" category.
"

Judge reassigned (none / 0) (#34)
by lily on Fri Aug 31, 2012 at 12:02:08 PM EST

Nelson is not available in January according to Orlando Slantinel.


Don't see it ... (none / 0) (#37)
by Yman on Fri Aug 31, 2012 at 12:59:03 PM EST

... on their website. Google search doesn't turn up anything.

If it's true, there aren't many judges left ...


Fox Orlando this AM (none / 0) (#39)
by lily on Fri Aug 31, 2012 at 04:26:07 PM EST

Attorney Diana Tennis said that Judge Nelson will Not be staying on the GZ case.


: So was Nelson actually "reassigned" ... (none / 0) (#41)
by Yman on Fri Aug 31, 2012 at 09:42:42 PM EST

... or is this just this lawyer's attempt at getting a scoop?
No one else is reporting this yet.

It Doesn't Speak Well of Florida Judges (none / 0) (#31)
by RickyJim on Fri Aug 31, 2012 at 10:36:42 AM EST

if you can characterize them as being pro or anti prosecution. You would think the ability to analyze evidence would count for something. Criminal law is much more fact based that political law which is what SCOTUS jurists mostly handle. I remember listening to an interview with judge and professor Richard Posner. He said the characterization of Supreme Court justices as originalist or activist is bunk. Conservative or liberal is all that makes sense.

Not just Florida judges (none / 0) (#32)
by Yman on Fri Aug 31, 2012 at 11:08:43 AM EST

Pretty much judges anywhere at any level - municipal court through Supreme Court - just human nature. The judges tend to lean one way or the other and the people (usually lawyers) characterizing judges as pro-defense or pro-prosecution are forming their opinions based on their own (biased) perspective. If you polled any group of lawyers (as the CFACDL did), you'd get very few lawyers agreeing that any particular judge is right down the middle of the road.


More than the opinion of lawyers, (none / 0) (#33)
by RickyJim on Fri Aug 31, 2012 at 11:54:05 AM EST

I would trust real statistics on the disposition of cases in order to compare the biases of judges. I assume one can compare the acquittal ratio, length of sentences handed out, numbers of outright dismissal of charges, etc. The Martin/Zimmerman case might really be a test of a "pro-prosecution" judge. The evidence so far released, which is most of it according to defense council O'Mara, seems to make it appear there is hardly a prosecution case.


Others have a different opinion (none / 0) (#35)
by Yman on Fri Aug 31, 2012 at 12:05:30 PM EST

The Martin/Zimmerman case might really be a test of a "pro-prosecution" judge. The evidence so far released, which is most of it according to defense council O'Mara, seems to make it appear there is hardly a prosecution case.

BTW - You could, in theory, use objective measures to try to determine the (relative) biases of judges. Of course, you would have to control for some variables, but it's a moot point here. The only characterization of the judges in the Zimmerman case is based on the opinions of lawyers in the area, or other observers and their subjective observations.


: Yep, agreed (none / 0) (#38)
by bmaz on Fri Aug 31, 2012 at 01:03:16 PM EST

This is a hard case to buttonhole on, and there are tremendous pressures at play that are not in the average caseload that would make up a particular judge's reputation.
Also agree that it is neither uncommon nor wrong for there to be known and shared views as to the disposition of judges. In any jurisdiction, large or small, there is a "book" on individual judges by the trial and litigation attorneys that are regularly in the courthouse halls. (And before anyone - not you yman - not familiar asks, no there is no physical "book" just an understood reputation)

An "acquittal ratio"? (none / 0) (#36)
by jbindc on Fri Aug 31, 2012 at 12:20:44 PM EST

How would that reflect on the judge, per se? Wouldn't there (except for bench trials) be a jury involved somewhere?

And while the pre-trial presumption of innocence is a bedrock principle of our justice system - how could you determine whether a judge is "pro" one side or the other without taking into account how many actually guilty people come before them?


Which Judges Get Top Ranking? (none / 0) (#40)
by RickyJim on Fri Aug 31, 2012 at 06:26:25 PM EST

I will hazard a guess that it is those that allow in most of the evidence lawyers propose. Since most defendants are actually guilty, it will usually be the defense that will try to bring up irrelevancies to trick the jury. So in a case where the prosecution's case is bad and they will have to resort to tricks to win, the defense might be better off with a low ranked judge.