A Florida appeals court has ruled that George Zimmerman is entitled to a new judge. In a 2-1 decision (below), the Fifth District Court of Appeal ruled Judge Kenneth Lester has to go. Zimmerman accused Lester of “gratuitous, disparaging remarks” he made as part of his bail bond proceedings. Lester accused Zimmerman of “flout[ing] the system” when he failed to report outside donations. That would normally not result in a forced recusal but Florida is one of the states that makes disqualification mandatory when the motion is “legally sufficient.”
The court of appeals did not rule on the validity of the alleged bias since it did not view that question as determinative. The ruling is quite short:
Florida Rule of Judicial Administration 2.330 requires a trial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)). 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.
However, Judge Evander dissented in an equally short ruling:
I respectfully dissent. As the majority correctly observes, adverse rulings are not,
in and of themselves, sufficient to require the granting of a motion to disqualify. Although 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, I do not believe the order “crossed the line” so as to require the granting of his motion.
Here is the rule in Florida:
2.330. Disqualification of Trial Judges
(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court. . . .
(d) Grounds. A motion to disqualify shall show:
(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or
(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.
. . .
(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.
The rule is clearly designed to err on the side of caution to guarantee a defendant an unbiased judge — even if the grounds are debatable. Florida law establishes a de novo standard for review in such cases presumably given the procedural emphasis on the rule. See R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012). What is interesting is that the rule itself militates heavily in favor of disqualification, but other cases like R.M.C. has stressed the satisfaction of an objective standard: “A mere “subjective fear[ ]” of bias will not be legally sufficient; rather, the fear must be objectively reasonable. Id. at 242. The burden is on the party seeking disqualification to show a well-founded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992)”
Most judges would have denied the motion as did Judge Lester. This type of statement at a bond hearing is not uncommon even if some would argue that there were mitigating circumstances for Zimmerman. What do you think?
Here is the opinion: 5D12-3198.op
Source: Palm Beach
Kraaken, In a perfect world..in a perfect world. I’m not an attorney either, I’m a retired PI.
Hmmmm…methinks I smell a mistrial.
Nick Spinelli: >”This is not a normal case.”< I am not an attorney so perhaps my view on this, Nick, is rather banal. It was always my understanding that our legal system was based on 'Equal justice under the Law". IMHO, the 'normalcy' of the case should be irrelevant. But then, it IS Florida.
Was trying to put up the shot of Z’s face.
Don’t know how. Watch 1:26–8. Will scare the s**t out of you. Real horror trailer stuff!!!
First, the picture of Zimmerman which opens the blog.
Does that effect you. It should give you warm feelings toward Z. Does it? If it does then you are being mislead, or propagandized as some would say.
Compare it with the picture taken of Zimmerman, shown briefly at 1:26–7 in this youtube series on Zimmerman.
http://www.youtube.com/watch?v=Cl8lOhxez5g&feature=autoplay&list=UUqw10MWkXCt_vn5fM6yyRSA&playnext=10
Freeze it and look for a while. Does it change your feeling about Zimmerman? It is not the only such picture which show this “face” of´the real Zimmerman in this series of videos, which are making a case against him.
But not only pictures and musice are used in this series.
There are also facts, based on Zimmermans words, you’ll hear them, based on measured distances on the ground, There are tape recordings of interrogations, where I think it is obvious that Zimmerman is lying, and that he does not knows what lie to give next, and preferably would like to NOY reply to the questions.
Now if I had been DA during that interrogation, I would have had him breaking down and confessing in a couple of more hours. If I can hear it, then they could ten times better. So why not? Guess.
He is a pathological liar. Sure he can smile for the camera. They all can.
So look at the series of videos.
http://www.youtube.com/watch?v=Cl8lOhxez5g&feature=autoplay&list=UUqw10MWkXCt_vn5fM6yyRSA&playnext=10
It’ll take a while, if you watch all the facts presented.
But it will change your life for the better. You will be able to recognize pathological liars easier next time. They are sooooo pleasant.
I think the blog should consider changing pictures.
Otherwise, I agree with what was said by Dredd: Stop lying for the judge. And why complain when he sees you doing it and calls you down for it. Jeez.
First, the picture of Zimmerman which opens the blog.
Does that effect you. It should give you warm feelings toward Z. Does it. If it does then you are being mislead.
Propagandized as some would say.
Compare it with the picture taken of Zimmerman, shown briefly at 1:26–7 in this youtube series on Zimmerman.
http://www.youtube.com/watch?v=Cl8lOhxez5g&feature=autoplay&list=UUqw10MWkXCt_vn5fM6yyRSA&playnext=10
Freeze it and look for a while. Does it change your feeling about Zimmerman? It is not the only such picture of the real Zimmerman in this series of videos which are making a case against him.
But not only pictures and musice is used in this series.
There are also facts, based on Zimmermans word, based on measured distances on the ground, there are tape recordings of interrogatións, where I think it is obvious that Zimmerman is lying, and that he does not knows what lie to give next, and preferably would like to NOY reply to the questions.
Now if I had been DA during that interrogation, I would have had him breaking down and confessing.
He is a pathological liar. Sure he can smile for the camera. They all can.
So look at the series.
http://www.youtube.com/watch?v=Cl8lOhxez5g&feature=autoplay&list=UUqw10MWkXCt_vn5fM6yyRSA&playnext=10
It’ll take a while, if you watch all the facts presented.
But it will change your life for the better. You will be able to recognize pathological liars easier next time. They are sooooo pleasant.
I think the blog should consider changing pictures.
Otherwise, I agree with what was said by Dredd: Stop lying for the judge. And why complain when he sees you doing it. Jeez.
What nick said.
Waldo, most cases allow a one time recusal “freebie” anyways.
Thanks Mike……
Zimmerman needs to be discharged of all charges and given a medal for shooting the punk who was pounding his head in the pavement.
The 2012 GOP platform adopts “stand your ground laws” for all states.
The judge who would seem to be first in line is also the judge for his wife’s perjury charge. The chief judge may be handling the foreclosure for his friend Taafe. Don’t know who’s handling the DUI for Taafe or the DUI for Shelly’s mom.
I have to say I am STUNNED! I am comparing the picture above with the pictures released at the time all this happened, and I actually did not recognize him. What gives with that? Amazing what a few donations can do for someone, isn’t it . . .
I’m with rafflaw, and once again, am not surprised to see a post where something is potentially favorable for Zimmerman. A lying a-hole does not a murderer make, but I do think Zimmerman is an unmitigated lying a-hole…and murderer.
indio007 1, August 30, 2012 at 10:41 am
I don’t know about you but I don’t want someone that thinks I am a manipulator and a liar presiding over my trial.
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Then don’t lie to them and manipulate them.
Seems like an incredibly low standard for judicial disqualification. I would think this opens itself up to widespread abuse by way of “judge shopping.” Don’t like your judge? Judge has a reputation for being prosecution friendly? File a motion to recuse! The only check I can see is attorney ethical rules against making false representations.
I am familiar with the Florida law on recusal. As Prof. Turley indicates, the court is required to review the motion purely for legal sufficiency, much as a judge reviews a complaint in response to a motion to dismiss. In this instance, the grounds are exceedingly weak and, in my view, Judge Zimmerman properly denied the motion. However, nick spinelli probably has the right take on it. Since this is an extremely high profile case, the appellate court wants to maintain as clean a record as possible.
I don’t know about you but I don’t want someone that thinks I am a manipulator and a liar presiding over my trial.
http://goo.gl/sTmSc
It appears a classic case of CYA. I agree what the judge said was, under normal circumstances, pretty benign. This is not a normal case. It is probably fiscally prudent getting a new judge in there. I’ll be glad when this circus is over. Having worked too many cases, I’m like many in my profession who don’t follow these high profile cases. Too much drama and not enough facts and law.
I think Zimmerman is a murderer and I hope that his Magistrate father doesn’t have his fingers into the selection of the next judge. If I understand the decision, it seems that the majority seem to think that a judge cannot open his or her mouth when they think they are being lied to by a defendant.