Zimmerman Gets New Judge

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

70 thoughts on “Zimmerman Gets New Judge”

  1. Professor, didn’t some big civil rights lawyer sue Jimmie Carter in 2011 for “false advertising” for saying that his book was “the truth”? Couldn’t this be done to Osterman too?

  2. Oh la la, new evidence = Trayvon never got ahold of George’s gun.
    Oh, that clears up the whole thing.

  3. I think the case has stagnated, O’Mara and Zim are not getting along, the money is not pouring in, and Trayvon Martin remains dead.

  4. Rule 11 provides for the punishment of lawyers who bring cases that they, the lawyers, know are false, fraudulent, unlawful, or frivolous, or cases that are brought without evidence, or brought in spite of there being “controlling authority” against them, or for some other improper purpose. They can be pretty hefty! I know of lawyers in Pennsylvania who brought an action for “intentional infliction of emotional distress” against a guy, his wife, her daughter, the daughter’s husband and some unknown person, and it was all the result of a vexatious litigator’s “wet dream” and without any evidence to support it. The defendants had to hire lawyers to defend themselves and then as soon as the thing was dismissed, the lawyers got hit with a $45,000 “sanction” under rule 11 for coming into court with that crap. There are plenty of other examples. Whoever tries to represent Zimmerman in suing folks for trying to access justice for THE PEOPLE including Trayvon’s family will be BEGGING for a Rule 11. Furthermore, there is another thing involved, SLAPP suits. It punishes people who bring suits to prevent others from engaging in public life. So the people who peaceably petitioned the authorities in Sanford to reconsider bringing charges against Zimmerman, and who contacted the FBI etc., are all protected by law, and whoever sues them can face a GIGANTIC counter-suit for violating the letter and spirit of the SLAPP laws recently put in place to stop people from using the courts as a tyrannical anti-public protest machine.

    Hello Hello, Dershowitz, Dershowitz, put your money where your mouth is and walk into THIS ONE, big boy!

  5. Oh I hope Dershowitz represents the Zimmermans on this one, oh please please please Dershowitz, please do it, please pleeeeeeeeeeeeeease! RULE 11 here we come! Pleeeeeeeeeeeeeease!

  6. Who knows? I would think that all Zimmerman’s records should be discoverable but judges are nuts a good half the time so no amount of guessing will probably help — even if the law clearly SAYS something the judge doesn’t have to do it, that’s the glory of our system! (A “system of laws and not men” that’s really a “system of highly flawed individual judges, not laws”).

    It also may be that right now there are people paying folks to say negative things about Trayvon Martin while the Zimmerman family manages to disappear ALL George’s records so all his schools say stuff like “Gee we can’t find anything, would you spell that last name again?”

  7. Malisha, legally, if they let them pull Trayvon’s records, does that mean Zimmerman’s will also be fair game? I mean, it seems like they would have to pull both if they pull one. Or is that discretionary with the judge?

  8. Not just George’s high school records, but ALL his school records. Every school he went to, every school he flunked out of, every school where they have a record of his having faked anything — probably a LOT OF SCHOOLS!

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