The Judge should be oblivious to cable news coverage. If her husband's firm is commenting on the case, it makes it personal. I'm a little surprised she didn't step down on her own, since apparently, her husband has no intention of leaving the firm and the firm has no intention of not commenting for CNN on the case.
Florida's Judicial Canons of Ethics:
Canon 3 (E)(1)
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
[c] the judge knows that he or she individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(iii) is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding;
Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.
Canon 5D(1)
In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification.
Canon 2
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
....The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
So the judge is in a position where her husband's boss will be publicly commenting on her professional judgment in a high-profile case in which the entire country is following all developments. Does that create an appearance of impropriety?
O'Mara has to consider the alternative pool of judges before making his decision on whether to request another judge. It's like picking a jury, when you are down to your last challenges. Before you excuse the next juror, you look to see who is left in the pool and weigh the risk that the one you really don't want will be called next. Sometimes you take the risk, other times you keep the juror you're not crazy about.
I also question the wisdom of CNN in hiring a commentator with this kind of connection to the judge. Will he fail to criticize the judge for a poor ruling or cast her in a better light because her husband is a partner in his firm? I'm not sure I would trust his analysis to be impartial or unslanted.
On a related note, it's good to know CNN is paying some of its commenting lawyers. Most appear for free. (Disclosure: I've been both, a paid and unpaid legal commentator.)
Update: It gets more complicated:
When Zimmerman and his family were looking for a lawyer, O'Mara told the judge, they talked to NeJame and even signed paperwork. NeJame, however, decided he'd rather be a case analyst for CNN, O'Mara said. NeJame then gave O'Mara's name and those of other attorneys to the family, and they chose O'Mara, he said.
So the CNN analyst/lawyer in the Judge's husband's law firm consulted with Zimmerman and his family, who would obviously have disclosed privileged details of Zimmerman's life history and actions. Client consultations with lawyers for the purpose of seeking representation are privileged, whether the lawyer is ultimately retained or not.
Judge Recksiedler had not yet been appointed to the case. But now that she has, there may be the appearance that her spouse's law firm has privileged information on Zimmerman and the case. Aside from the CNN issue, this could create an appearance of impropriety.
I doubt a law firm jumps into or rejects taking on such a high profile case without first discussing it. Here, the firm lawyer weighed the desirability of being a participant versus a paid analyst in the case. It's unlikely he would not have discussed this decision with his firm. There is at least the possibility that the Judge's husband was privy to the discussion among lawyers in his firm which may have included details from the privileged consultation with the Zimmermans. The Judge's husband, not knowing his wife was going to get the case, and not practicing criminal law, may have inadvertently shared the information with the Judge, who should not be privy to the information.
This is why ethical canons for lawyers and judges prohibit the "appearance of impropriety" without requiring actual impropriety took place.
Update: I just watched the hearing video. It was hard to hear, but it sounds like Zimmerman and his family signed papers with the CNN Analyst/lawyer acknowledging they knew he would be commenting on the case, and O'Mara is concerned they may continue to share information with him as the case progresses for the purposes of getting their views heard. O'Mara seems more concerned with whatever ongoing relationship may exist between his client's family and the lawyer/analyst than the information that was shared in the past. He says he's still looking into the nature of the ongoing relationship. The judge asked that he make a decision on whether to seek to recuse her as soon as possible and before they get into the bail hearing set for next Friday.
O'Mara sounded like he was torn over which way to proceed. He may feel some personal loyalty to CNN Analyst/lawyer NeJame, since it was NeJame who referred Zimmerman to him for representation. Yet he has to make a decision based on what's best for his client, even it results in challenging the Judge, whose husband works with NeJame.
