Appeals Court Grants Zimmerman Judge Disqualification Motion

I have long maintained the George Zimmerman criminal case ongoing in Florida, and the nature of Florida law and procedure, is far different than most in the media and blogosphere understand. The initial investigation was not particularly “botched” at all, the actual known facts and statements do not indicate particular racial animus on Zimmerman’s part, the known facts and statements relating to the actual physical “confrontation” are far different than generally painted and arguably do indicate Martin was the aggressor, and Florida law is rather, shall we say, unique in many regards.

One of the areas I have delved into, although not here, is the disqualification motion made by Zimmerman defense attorney Mark O’Mara. The motion was aimed at Judge Lester and, go figure, was denied by him. But O’Mara appealed via a Writ of Prohibition and, what do you know, the Florida Court of Appeals For The Fifth District just granted the writ and ordered Judge Lester to recuse himself:

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition.

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.

It was not unanimous, but was, rather, a 2-1 decision. The State of Florida, now operating for appellate purposes, through AG Pam Biondi’s office, may well file a petition for review with the Florida Supreme Court, we shall see.

Here is what I said in another forum on July 16th, just after the original motion to disqualify was lodged:

It is a Florida case and, yes, their law is a bit different. But what Lester has done would be outrageous in any jurisdiction. Denial of a defendant’s due process right to be present for a non-emergency bond revocation is a denial of due process anywhere, even in New York I would hope.

That said, in most jurisdictions, including here [where I practice], I think this motion to disqualify would not stand a great chance of success, although I certainly would file it for tactical purposes and to make a record of objection to the court’s conduct.

In Florida, however, there is a very good chance the motion is granted. Indeed, there is an argument it MUST be granted.
Fla. R. Jud. Admin. 2.330 (2012):

(f) Determination–Initial Motion. –The judge against whom aninitial 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.

That is exactly the subsection O’Mara filed under and, although there was a previous disqualification of a judge in this case, it was under a different subsection. The burden in FL, believe it or not, is whether or not the defendant – Zimmerman himself – believes the judge will not be fair and impartial. That sure as hell is not the standard here [where I practice], but it is there, and it is very easily made in Zimmerman’s case due to the gratuitous editorializing done by Judge Lester. If Lester is so impertinent as to refuse the motion, I think it would be appealed and reversed.

I have delved rather deeply into the Zimmerman fact set and, as I said above, it really is quite a bit different than commonly portrayed and understood. I have had access to all of the discovery, whether police reports, witness statements, recordings or copies of physical evidence in the case. There is a LOT of evidence and, frankly, I think very few people have really looked at most of it as opposed to reading ill informed news and blog accounts. I have had the privilege of doing this thanks to my friend, and Marcy’s, Jeralyn Merritt. I have only engaged with Jeralyn personally on issues for the last few years, but I have known of her, and seen her at NACDL meetings, for at least 20 years; she is a very good criminal lawyer. Jeralyn has spent the hard cash to acquire every bit of the disclosure in this case, and it is not cheap, and she has done some incredible analysis on the case from the outset.

Here is what Jeralyn had to say on August 24th, just after the state filed it’s appellate response brief, about the recusal motion and appeal:

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).

That is good work, and precisely what I would have said had I written a full on blog post on this topic on that date.

Now, again, maybe there will be a petition for review and the Florida Supreme Court reverses the Court of Appeals. But, either way, let it stop being said, by people that are not up to speed, that the disqualification motion was idiotic or ill taken. Win, lose or draw, it was a necessary and tactically smart move by Mark O’Mara to remove either Judge Lester completely or, at a minimum, some of his out of control hubris.

UPDATE: There will be no appeal (technically a petition for review) per Pam Biondi’s Florida Attorney General’s Office according to the Orlando Sentinel. Case looks to likely be assigned to Judge Debra Nelson, who has a reputation for being tough. So, Zimmerman may not have any net gain in getting a judge change; still, tactically, it was the right play.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
17 replies
  1. MadDog says:

    An interesting development in the case! Much of Judge Lester’s rant during that 2nd bond hearing reads like the prototypical sadass backwater local Grand Poobah opining away with personal convictions regardless of the law’s necessity for a judge to remain neutral.

  2. bmaz says:

    @MadDog: Well, yeah, it really did. Not enough to where he gets censured or anything, but definitely a wee bit beyond what was credibly necessary.

  3. MadDog says:

    @bmaz: I’m still of the opinion (and that’s all it is) that the Zimmermans were deceitful at the 1st bond hearing. Not enough to throw the book at them, but worth some sanction at the 2nd bond hearing.

    That said, I’m also still of the opinion that 2nd Degree Murder was and is a stretch. Perhaps it’s a norm in small town Florida, it still seems like overcharging based on the reported information.

  4. bmaz says:

    @MadDog: 2nd degree is completely bogus charging from what I have seen. Said that when I saw the initial affidavit, and what I have seen since has only confirmed how outlandish it is. I actually think the best course was to not charge, but if they were going to, to do it under the negligent manslaughter provision.

    Yes, I too think the Zimmerman’s were deceptive at the bond hearing. Problem is, George himself had the Constitutional right to stand silent – a criminal defendant never has to speak, even in that setting. the wife, well that is a different matter, although I do not think what she did is nearly as exacerbated as alleged. She stated she was not sure exactly what was in the account and that there was an appropriate person to ask. Still, she was deceptive I would say. But Zimmerman sat in jail for a lengthy time awaiting Lester’s determination; that was sufficient punishment without raising the bond. there was no rational interpretation of facts that said Zimmerman was a flight risk (despite the bullshit Lester concocted out of thin air).

  5. Gandydancer says:

    @MadDog: I agree that the Zimmermans weren’t forthcoming, but upping the bail to $1M was an $85k fine and I have problems with that being done without any reviewable process. Lester isn’t responsible for the degraded nature of the bail bond system, but he was responsible for being cognisant of it… and I’m sure he was, and think he used it inappropriately. Bail is supposed to be to ensure appearance, not to be judge-imposed offhand punishment. And Z isn’t going to get less back if he runs out on $1M than he was if he ran out on $150k, so I don’t see that his liklihood of reappearance was much enhanced (recognizing, however, that the bondsman may be keeping closer tabs). SZ getting charged with perjury is the shot at an appropriate penalty, if it was appropriate.

    Btw, the reason 2nd Degree was charged has nothing to do with the “small town” nature of the prosecutor or judge or case, IMHO. Nothing and nobody in this case is “small town”.

  6. bmaz says:

    @Gandydancer: No, it is most certainly NOT because it is “small town”. You are spot on there.

    This is a case of national interest and the prosecutor is a well known hard nosed prosecutor, friends with and hand selected by Rick Scott, the arch-conservative Governor of Florida, to take action in this case to overrule the initial no-charge decision of the local police and prosecutors.

  7. MadDog says:

    @Gandydancer: @bmaz: I stand corrected then about the “small town” aspersion.

    I thought to plead my case that the local law enforcement crew didn’t seem all that big time during the initial phases but perhaps that was a misperception as well.

    In any event, Judge Lester stepped in it up to his neck and deservedly is due the disqualification.

  8. bmaz says:

    @MadDog: I bought into the “the local cops were over their head and botched the initial investigation” baloney too. Until I saw all their DRs (departmental reports), physical evidence examination requests and results, photos and listened to all their interviews. They actually did, while not perfect, a very decent, better than normal for local cops, investigation. Seriously.

  9. MadDog says:

    Totally OT – Both Reuters and the AP have reported drone strikes in Yemen over the last 2 days, but the latest today from the AP caught my eye and seems particularly unusual:

    “Military officials say an airstrike has hit a vehicle carrying suspected militants as it traveled down an inner city road in eastern Yemen, killing five…


    …The attack was unusual in that it was not in a desert or mountain area, but an area heavily populated by civilians…”

    In the middle of a city?

    Was this a Personality strike or a Signature strike?

    Did President Obama personally sign off on this strike as he has been reported to do for all strikes in Yemen? Or did Blabbermouth Brennan forge Obama’s signature?

  10. blueskybigstar says:

    “The initial investigation was not particularly ‘botched’ at all, the actual known facts and statements do not indicate particular racial animus on Zimmerman’s part, the known facts and statements relating to the actual physical ‘confrontation’ are far different than generally painted and arguably do indicate Martin was the aggressor…”

    BMAZ, you are full of it. This was a hate crime initiated by George Zimmerman. You can hear from the 911 tape that he said “fu#k*ng coons always get away with it.” He lied about being the one screaming for help. He lied about how much money he had. According to Florida law, he should not even been allowed a gun because of his past encounters with the law and being part of a deferment program. Zimmerman has an extensive history of violence, even against police. The pictures of injuries came out far too late and are likely falsified. There are even pictures of him at the police department with no apparent injuries. Many of these things have been taken down from the internet. My God, they brought out a so-called 911 video expert to authenticate audio whose videos of Osama bin Laden have been proven to be fakes. These are very powerful people with deep connections in the media, military, and justice system, an old boys club who have a history of doing each other favors and covering up their own crimes.

  11. Eamon says:

    You comment at 10:36 contains blatant falsehoods. Zimmerman pretty clearly did not use the word “coons.” Not even the FL prosecutor alleges this. And “they always get away with it” wasn’t part of the that statement.

  12. FrankProbst says:

    I’ve read enough about this case to know that I don’t know enough about this case, but I think that if I were the prosecutor, I would have gone with a manslaughter charge and let a jury sort it all out. My understanding is that a 911 operator told Zimmerman to stay in his car, and Zimmerman went chasing after Martin anyway. There was a confrontation, which was presumably initiated by Zimmerman, and Martin ended up being shot to death by Zimmerman. If I were a grand juror, I’d be willing to indict on manslaughter for this.

  13. bmaz says:

    @FrankProbst: Nobody ever told him to “stay in the car”. It was not a 911 operator, it was literally a regular access operator/receptionist type on the general public phone number. The specific terminology they use is “Non-Emergency Number”. bottom line though, is it was not an order of a police officer of official. Beyond that, they at first urged Zimmerman to keep track of the subject (Martin), but later when realized he was following him on foot, told Zimmerman “we don’t need you to do that”.

    At that point, Zimmerman appears to have headed back toward his vehicle when Martin accosts him. There are not sufficient facts other than Zimmerman’s statements to truly pin this down, but that is the best reading of the cumulative facts as far as I can discern. so, the actual physical confrontation itself appears to have been initiated by Martin, not Zimmerman. It also appears fairly clear that Martin was indeed sitting on top of Zimmerman pummeling him. There are no independent facts on the next part, but Zimmerman claims at that point Martin saw his gun and appeared to be reaching for it. If that was the case, and Zimmerman had fear he could not stop it, he was justified in engaging in self defense with deadly force.

  14. PT Nelson says:

    One man went to the store to buy candy for a kid. He started out minding his own business. He is dead. Another sought to make the 1st man, who was walking home, his business. This 2nd man ended up killing the first one. If there is any convoluted logic whatsoever that would make the results okay, then we are all in danger for our lives!

  15. FrankProbst says:

    @bmaz lol. Like I said, I know enough to know I don’t know enough. So were all of the other “911 calls” that Zimmerman had made in the past actually non-emergency calls? If so, he seems like much less of a nut-case than the media has made him out to be.

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