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
The comments that Zimmerman made were part of the reason I feel about this like I do. Does that even SOUND to you like some poor baby who is going to get his head banged into the pavement? It sounds to me like someone who is going into attack mode. And Trayvon’s comments to his girlfriend on the phone do NOT sound like someone who is about to attack someone and try to kill them. Res Ispa Loquitor
ABOUT THE FORCED RECUSAL:
The “gratuitous” negative comments made by Judge Lester about George Zimmerman (that he flouted the court system, that he was manipulative and dishonest, that he would have tried to escape were it not for the ankle monitor he was wearing) were considered enough to tip the balance and not let the judge continue to preside over the criminal trial, although obviously he would not be the fact-finder in the ultimate trial (the jury would be). So let’s leave it at that. The judge’s impartiality and trustworthiness to act in a situation that would have an enormous effect on George Zimmerman’s future was not considered high enough above criticism for him to proceed.
“Gratuitous” negative comments, mind you, that resulted from Judge Lester having information in front of him that he was evaluating with the 20+ years of education and experience he had preparing him for such evaluation.
OK, leave it at that.
Now, LOOK at what George Zimmerman “gratuitously” said about Trayvon Martin when he had just seen him for the first time, did not know his name, had no idea who he was or where he came from, and had no training in assessing his character:
“He looks like he’s up to no good”
“Something’s wrong with him”
“I don’t know what his thing is”
“He looks high or something”
“A55hole…[he’s one of them who] always get[s] away”
“F*cking P*nk!”
Hmmmm. We’re not supposed to trust what Judge Lester said about how he judged the Zimmerman case? We don’t want to take his word for how he will conduct himself in the future with regard to Zimmerman? BUT…some people imagine that we should absolutely trust whatever Zimmerman says about Trayvon Martin, and about why he “had to” shoot him? Some people argue that we should believe Zimmerman’s word when he tells us that Trayvon Martin made a vicious unprovoked attack upon him and tried to kill him, thus inevitably bringing on his own death?
Wow. We should trust Zimmerman about Martin, but we should not trust Lester about Zimmerman? Hunh! Double standard.
Well, now that I wrote that last comment, I realized how much pressure there will be on the Florida judge to let George off on a SYG — pressure from, just for starters:
EVERY SINGLE HOMEOWNER’S INSURANCE COMPANY that insures ANYBODY in The Retreat at Twin Lakes. That would mean probably ten of the biggest insurance companies in the country. OMG OMG.
All the individuals who were part of the “Neighborhood Watch” Gang and all the individuals who were part of the HomeOwners Association of The Retreat at Twin Lakes. And all their connections, and all the realtors, and all the property developers there, and ALL OF THEIR CONNECTIONS, including their connections in the Florida LEO associations, Florida government in any capacity, and etc. etc. etc.
SPD. Wolfinger. Probably every single police officer involved except perhaps Singleton and perhaps Serino.
Everyone who knows any of said law enforcement personnel — and their uncles and their cousins and their aunts.
See, this SYG law protects everyone from liability. And we are no longer, if we ever WERE, a society based on accountability, no no no. We are a society based on LIABILITY. And if liability can be avoided by using a little magic like “SYG” — OMG OMG OMG.
If the plaintiffs’ personal injury bar doesn’t ALL get behind Crump and the Martin/Fulton family attorneys and NOBLE right NOW, and doesn’t help them successfully challenge the way this SYG could operate to impose corruption as the form of government on this entire country within a decade, there will be nothing left for us to do here. EVERY plaintiff’s p.i. lawyer in the country should be concerned about this. Somebody (not me) should organize them to start pouring in funds to work on this case, this challenge, and this issue, right damnit now without a moment to spare.
OK, there aren’t any appropriately adorable little faces for me to put down at the end of this one. It’s no longer even about race, about murder, or about corruption; it’s about giving up the right to object in any way, shape or form to any outrage that can be perpetrated upon anyone.
OK, Professor or any other lawyer, jump in and correct me if you think anything I say here is way out of common experience or unintended consequences, but, arguendo, let’s assume:
1. George has a SYG hearing and wins handily and that means that he is immune to prosecution and there can also never be a civil suit based upon the killing of Trayvon Martin.
2. Then, naturally, the attorneys who are hoping that there will be a successful wrongful death suit against many defendants (some of them deep pockets) can all go home and lick their wounds.
3. One or more of them says, “no damn way” and files suit anyway, specifically for the purpose of having a US District Court say that it is dismissing the case because the SYG decision — made by a single trial court judge in a state court, using the preponderance of the evidence standard, in that one judge’s trial court discretion — has therefore made “res adjudicata” every claim that can possibly be brought related to, derived from or arising from the killing of Trayvon Martin.
This dismissal decision goes up to the federal appeals bench and either gets affirmed or overturned. EITHER WAY the amount of publicity at this point involves every attorney who practices in every federal court in the damn country, don’t you see, because what it means is that ALL RIGHTS pertaining to ALL CONDUCT of ALL PERSONS that are alleged to have had anything to DO with a wrongful death can be done away with by the decision of single judge in a trial court in Podunk and we all know how little (a few thousand dollars) it would take to make any killing become a cheap proposition.
DO YOU NOT THINK this one would end up in the US Supreme Court?
I can see a domino effect that would tumble pieces off game boards in every court in the country.
Imagine it. I mean, I can see its projection from here: Let’s just say — just for the sake of argument, because of course, you know me, I wouldn’t hurt a flea, but just say, just imagine, that I was oh, say, maybe 65 years old and wanted to retire in comfort and not just live on social security and medicare. I could, say, accept a small fee and go get in somebody’s face and have them smack me around enough to put me in fear for my life or limb, and then I could pull out a K-something and shoot a hollow-point bullet into their chest and like that. Oops. Then I could convince a state court judge in, oh, say, a state that had a SYG law similar to Florida’s, that I had to do it because I was afraid of the guy who had smacked me down. Boo Hoo and all. Nobody could sue anybody for the wrongful death, see?
Jeez…think of it…
Rafflaw, thanks — and some of my best friends are lawyers, too…
(well, not a WHOLE LOT of them, but certainly some…)
Malisha,
I second feemeister’s comments!
Thanks, feemeister.
Also, I’m drop-dead gorgeous (usually I don’t carry a loaded gun because I can cause people to drop dead simply by gorgeousing at them) and some of my best friends are dogs.
Malisha, you ROCK!!!!!
Itchinbay, I had you mixed up with another canine at one point in time so I actually went looking through all sorts of different threads to try to come to a valid conclusion about whether you were kidding or not when you started humping the wrong leg here, but what I found was that I couldn’t figure out what had your tail in a wringer. Then you posted this comment meant, I guess, to clear up the confusion for me. Thanks for that, anyway.
Here’s the problem, as I see it, in your analysis. (Well the biggest problem of course is that you’re still looking UP to George Zimmerman because of your posture and those four legs and all, and I know you are friends with his pooch and probably when you go for walks with your human companion, he also carries his loaded gun, but all that said,…)
You say: “This criminal case needs to be dismissed upon a motion whereby evidence is adduced from Zimmerman and anyone else who was there with their own eyes to see Z on the ground getting his head pounded into the pavement when he shot choirboy.”
OK, that would start with “This criminal case needs to be dismissed upon a motion…”
That can happen. There would be a SYG motion in front of the judge who presently presides, so Judge Debra Nelson.
Now, O’Mara has stated publicly that SYG does not apply to his client but he still says self-defense DOES, so let’s just call it a “motion” as do you.
Next, you say, “whereby evidence is adduced from Zimmerman…”
Just that part, first. O’Mara can put Zimmerman on the stand to adduce his evidence. But then, of course, as a witness, he will be cross-examined. Prior inconsistent statements will be adduced by the prosecution. Such as: “Are you following him?” “Yeah.” vs. “I wasn’t following him.” Such as: “Those are capillary lacerations not coincident with the kind of beating you describe, how do you explain that?” followed by, “I don’t know.” Such as: “What did you say, f*cking punks?” “Yeah.” Such as, “Did he say the word ‘homie’?” “I don’t know.” Such as: “Do you have a degree in criminal justice?” … “Yes.”
and on and on and on and on. If it’s about credibility, that testimony is not going to be a very successful dog and pony show, if you ask any dog or pony.
Next, you observe that testimony could also come from “anyone else who was there with their own eyes to see Z on the ground getting his head pounded into the pavement” …
Uh, well, OK skip that one.
“when he shot choirboy.”
Well, Itchinbay, here’s the real issue to your imaginary hearing and its imaginary outcome. Trayvon Martin was not a choirboy and neither did he have to be a choirboy in order for the law to say that it was murder to kill him on 2/26/2012 without first putting him on trial for the crime of being not-a-choirboy.
In fact, here’s how it would have had to go:
1. George accuses Trayvon of being not-a-choirboy.
2. Police dig up the exact code section in Florida Criminal Law — oh here it is, “Section St.George-VII-point-three-355-oh-two, subsection (c),” a person who shall be (a) born; and (b) not a choirboy in the sole discretion of George Michael Zimmerman or such other person as shall be chosen by the police on duty at the time at any station in the State of Florida; is hereby guilty of a first-degree violation of said section and punishable by death in accordance with law, huzzah.”
3. Trayvon is arraigned, charged, held without bail, and convicted, after which he loses his appeal, takes a habeas, loses the habeas, appeals that to the Circuit, loses, makes a petition for commutation, has it denied, becomes the center of a nation-wide and perhaps world-wide petition campaign to commute the sentence to life without parole, and loses that and…
Oh wait a minute, they STILL don’t shoot him. They give him a religious service, a last meal, and a chance to make a brief statement, and then they kill him by lethal injection. Sorry, I forgot.
See, he doesn’t have to be a choirboy after all.
And here’s something else about it: all the people who defend George Zimmerman based on the notion that he got his head pounded into the pavement by a not-choirboy should remember that in Florida, a not-choirboy is allowed to pound someone’s head into the pavement if the not-choirboy has a reasonable fear of death or great bodily injury. And considering the outcome, nobody could logically argue that Trayvon should have been without such a reasonable fear minutes before he sustained both great bodily injury and death at George’s hands.
Now go piss on someone else.
Ordinarily itchnbayDog would side with the dead choirboy. But in this case the great State of Florida is prosecuting Z and all of the powers that be are out trying to deny him a fair trial and make this into a race case. Had choirboy been white choirboy the story of Z would not be all over the news. The bail for Z was excessive. The Judge who most recently got recused should recuse on any criminal case and stick to divorce cases. Or quit the bench and handle divorce cases. After this is all over there is a dog in the dog pack named HumpinDog who wants to chimne in. He thinks that I have been overly harsh on dead choirboy and too protective of Z. My point is we cant do anything for dead choirboy, his family deserves nothing in the way of justice and his fat lawyer who comes on tv whining all the time needs to do some divorce work and stay out of what he thinks is civil rights. This criminal case needs to be dismissed upon a motion whereby evidence is adduced from Zimmerman and anyone else who was there with their own eyes to see Z on the ground getting his head pounded into the pavement when he shot choirboy.
Imitation is the purest flattery. Malisha and Kraaken.
Will itchingBay hump his leg? Will itchin’Bay be so happy that he will pee on the floor, on the DA’s foot, and raine that hind leg so high that he fires direct at representatiive for the deceased (does FLA have such?)????
Glad to see the right photo of Z. is now shown on my comment. Has anybody watched any of the videos?
Hope so. Much less funny than Malisha, but necessary. If you will be following a trial.
Intelligence and sense on TV? What channels do you watch?
Malisha: In this week of the Republicant Convention, when there is nothing else on TV of either intelligence or humor, your post at 1, August 30, 2012 at 8:50 pm was enough to make having to listen to Clint Eastwood bearable! Haven’t laughed so hard all week!
Actually this was the third judge to recuse.
Judge Jennifer Recksiedler was the first judge on the case, and O’Mara recused her because her husband had a relationship with CNN. Then Judge Galluzzo recused himself without being asked because he had a business and personal relationship with Mark O’Mara. (I don’t know if he has heard other cases O’Mara was on in the courthouse, that would be something I’d like to research when I have a chance.) Then Judge Lester lasted until he said something unkind about George, even though O’Mara did not deny that the substance of what he said was correct. Now a fourth judge is on the case.
Malisha, LOL
Just imagine that O’Mara got a new judge and now thinks he may have a chance putting George up there to do a SYG hearing because this new judge will not believe any of those nasty things Lester said about George’s credibility. Let’s say the new Judge thinks, “Well I better not think that George lacks credibility because Judge Lester was kicked off the case for thinking that.”
So do you think that now, with a new Judge, O’Mara is going to flip flop on his big announcement that SYG did not apply in this case (which was an echo of the announcement made by the legislators and the governor, who pointed out long ago that SYG did not apply in this case), and that he was going to try “self-defense” rather than SYG?
DO you think he’ll go back to square 1 with the SYG defense and try that on in a hearing in front of this brand new believing-in-George Judge?
Let’s see how that would work.
O’Mara starts the questioning.
OM: Please tell us what happened that night.
GZ: I saw a suspicious character; he checked me out and disappeared into the darkness; he re-emerged from the darkness and circled the car; he skipped away; I got out of the truck to look for either a street name or a house address because I was asked to do that and it was God’s plan; the suspect attacked me and said I would die tonight motherf-cker and he broke my nose and smashed my head on the concrete and I thought it was going to explode and I felt his hand going down the side of my chest and I got my firearm and I shot one time and maybe hit him and maybe didn’t and he said “You got it, you got me,” or something like that, and then I had some bystander call my wife, and I mentor young Black kids and I’m not racist.
OM: Did you confront the guy?
GZ: Nossir.
OM: Were you afraid for your life when you shot the guy?
GZ: Yessir.
OM: That’s all I have, Your Honor.
JUDGE: Cross-examine?
PROSECUTOR: No ma’am; there’s just nothing we can possibly say; he was the only witness and so we can’t attack his version of the events.
JUDGE: Case Dismissed. Bailiff, tell ItchinbayDog to come in here and lick the defendant’s face.
OM: Judge I object to your playing the Face Card.
JUDGE: I’m sorry, counsel; please don’t force me to recuse, it would embarrass me. Bailiff, tell ItchinbayDog to come in here and lick the defendant anywhere she likes…
Bud, she sounds like an interesting judge for this case! Can’t believe she’s the third one so far!
http://articles.orlandosentinel.com/2012-08-30/news/os-george-zimmerman-new-judge-20120830_1_george-zimmerman-trayvon-martin-mark-o-mara
So, if the judge revokes the bail on Z. because he thinks the facts show that Z. (and his wife) lied and manipulated the court he can base his decision on that but he can’t say it? LOL, justice is blind and kinda’ nuts in Florida IMO.
Nick and Mike A. upthread probably have the correct read on the situation. Frankly, considering the low opinion I have of Florida I’m surprised they have this low threshold but I’m also pleasantly surprised. Maybe they need it.
I dont expect a plea of guilt to anything. I first expect a trial court to dismiss the charges when it considers the defendants stand your ground motion. If that is denied, then I expect a trial and when the jury hears from the only witness who was there (Zimmerman) while choir boy was banging Zimmerman’s head on the pavement the jury will acquit Zimmerman. I do not think that they will ask for lunch or dinner and that it will require about an hour of discussion before they sign the verdict. Choirboy’s family can then go think about the kid that they imposed on society and quit being so aggrieved. Their fatboy lawyer can shut up.
Here’s my take on it: This recusal will save time when the federal habeas corpus gets appealed because a federal judge decided not to hold a separate hearing to determine whether or not George Zimmerman was forced to take a plea because he faced an unconstitutionally unfair trial with a virulently biased judge so he had to cave to avoid “the worst” blah blah blah. I think this simply protects the state’s record and although there will still BE all those appellate things going on forever and forever (and probably at state expense — and those Florida state PDs are actually very good!) this is one little stop-gap that will save money in the future.
I still expect a plea deal as soon as O’Mara can get something under 10 years worked out. AND I expect that right now George is trying to get Shellie pregnant so by the time he is sentenced she can stand there with an infant in her arms, crying, because the baby needs Daddy at home with him to teach him how to be a fine upstanding street killer.