New Judge in George Zimmerman Case is Married to a State Homicide Prosecutor
Posted on Wed Apr 18, 2012 at 07:54:18 PM EST
Tags: George Zimmerman, Trayvon Martin (all tags)
Did George Zimmerman catch a break or step on a landmine by getting a new judge today? His case will be presided over by Circuit Court Judge Kenneth Lester, Jr. The first judge who was next in line to succeed Judge Recksielder declined the case because he used to practice with Mark O'Mara and O'Mara is godfather to one of his children.
Next in line was Judge Kenneth Lester, Jr. He now has the case. At the very end of a long Orlando Sentinel article, it discloses that Judge Lester is married to a long-time homicide prosecutor in the state's attorney's office in Orange County. (Orange County is adjacent to Seminole County and includes Orlando. It's also the county that filed battery charges against Zimmerman in 2005.) See updates below)[More..]
Lester is married [sic] Dorothy Sedgwick, a long-time homicide prosecutor at the State Attorney's Office in Orange County.
He's sentenced several people to death, and while in private practice, intervened to stop the state from releasing an inmate early.
In 1992, while in private practice, he helped keep the man who tortured and murdered 5-year-old Ursula Sunshine Assaid from being released early from state prison, said long-time friend and former state legislator Gary Siegel.
Donald McDougall was about to be released after serving 10 years of a 34-year sentence, but Lester, Siegel and others traveled to Tallahassee on Christmas Eve, met with the state's corrections chief and an assistant Florida attorney general and lobbied to keep McDougall locked up.
How has he ruled as a judge in the past and are his rulings upheld by appeals courts?
Here's a sampling from Google. It's not intended to be a complete analysis, it's just what the first five or six pages of Google had. The search words I used if anyone wants to do more research, are "kenneth lester jr + florida 5th dca."
In 2004, he granted a defendant a downward departure at sentencing and was reversed by the appeals court.
In 2004, he refused to suppress drugs seized during a traffic stop. The appeals court reversed, finding the traffic stop unlawful.
In 2005, Judge Lester refused to suppress evidence in a case where the defendant said he had been unlawfully detained and searched. The appeals court reversed his ruling, stating "A stop without a reasonable suspicion of criminal activity occurred and [defendant] Oslin's consent to the search of his person was invalid as a product of an illegal stop."
In another case in 2004, Judge Lester granted the defendant's pre-trial motion to dismiss a drug charge after a hearing at which the state had to present a prima facie case. (The motion was brought under the same rule that some pre-trial motions for stand your ground immunity are based on.) The appeals court reversed him.
In 2007, his ruling granting a defendant's motion to suppress was reversed. In 2006, the appeals court reversed another decision in which he had granted a defendant's motion to suppress.
[The defendant] filed a motion to dismiss the possession charge pursuant to Florida Rule of Criminal Procedure 3.190[c](4) on the ground that there are no material disputed facts underlying this charge against him, and that they do not establish a prima facie case of guilt.
The function of a "c4" motion to dismiss is to require the state to present a prima facie case of guilt against the accused, similar to a summary judgment situation in a civil case. ... If the undisputed facts do not legally constitute prima facie proof of the crime charged, or if they affirmatively establish a valid defense, a motion to dismiss should be granted. However, if the undisputed facts permit the conclusion the defendant could be found guilty of the charged crime, the motion must be denied. ...All reasonable inferences that arise from the undisputed facts must be taken in a light most favorable to the prosecution's case.
In 2002, he denied a defendant's post-conviction motion to set aside his conviction based on ineffective assistance of counsel and a claim his plea was involuntary. The appeals court agreed that the defendant failed to establish ineffective assistance of counsel, but reversed Judge Lester on the issue of the voluntariness of the plea, and remanded the case for a hearing on the issue.
In 2003, Judge Lester imposed consecutive sentences on a defendant, saying the law required it. The Court of Appeals reversed, and sent the case back to him to use the correct standard.
Last month, an appeals court reversed Judge Lester in a parental rights case where he had ordered the child taken from the mother and gave custody to the father under the supervision of child protective services. The appeals court said his ruling violated the mother's due process rights. A similar reversal of his ruling against a mother occurred in 2005.
In 1999, Judge Lester was reversed by an appeals court for failing to consider an entrapment defense.
In 2006, a defendant appealed his conviction claiming Judge Lester erred in allowing the state to excuse a black juror. The appeals court affirmed the judge, saying the excusal was not in error.
In 2001, the appeals court upheld his denial of a defendant's motion for judgment of acquittal. In 2003, it upheld his denial of a motion to suppress a statement made by a defendant to an investigator.
In 2007, Judge Lester refused to consider a defendant's motion for a lesser sentence, holding he had no jurisdiction to do so. The appeals court reversed, holding he did have jurisdiction.
As I said, this is not complete description of appellate review of his cases. I'm out of time to do more. I don't see much of a pattern here, or any particular bias, and while there are several reversals, he obviously has handled so many cases, they could represent just a smattering of his overall cases. I'm not drawing any conclusion from them.
Although, in light of the reversals that popped up on Google, I do find it somewhat amusing that his daughter told the Sentinel:
She has never saw her father agonize over a ruling. "He basically told me it should not be hard to make the right decision if you follow the law," she said.
I doubt we will get an unbiased assessment of the Judge from any lawyers practicing in Seminole County. In fact, I would expect universal praise. No lawyer in their right mind would publicly criticize a judge he or she has to appear before regularly.
I'm more interested in the closeness between Seminole County and Orange County, where his wife is a homicide prosecutor. The counties border on each other. His wife works for the State Attorney's Office, just as Angela Corey and her deputy prosecutors work for the State's Attorney's Office. Do they share investigators? Even though the counties are in different judicial districts, the same agency employs both. Will information be shared? Do investigators for one county work or consult with those in the other? I think O'Mara may have jumped from the frying pan into the fire with this judicial switch.
George Zimmerman's bail hearing will be held on Friday, as scheduled, at 9:00 a.m.
Update: CNN sings the judge's praises, and provides a biography, that names his wife, but doesn't mention she's a state homicide prosecutor. Local lawyers are, as I predicted, fawning over him. One does mention that although he's fair, "he's no friend to the defense."
Update: It was Orange County that charged Zimmerman with battery on a law enforcement officer in 2005, a charge that was ultimately dismissed. The photo of Zimmerman in the orange jumpsuit was his booking photo from that arrest, and was given to the media as a handout by the Orange County Sheriff's office for inclusion in reports of his being charged in Trayvon Martin's case. In this recent MSNBC report, Michael Isikoff interviews the lead Orange County prosecutor on Zimmerman's case, David Chico, who opines Zimmerman could have been charged with a felony and says, "I've seen felonies charges charged with less conduct that Mr. Zimmerman is alleged to have done that night at the bar." (Zimmerman was first charged with a felony, it was reduced to a misdemeanor and then dismissed.)
There's no way Corey's office and investigators did not fully examine Zimmerman's Orange County file and consult with prosecutors there. If the state intends to use the prior arrest against him at the bail hearing, or to impeach his testimony on the self-defense issue or any character witnesses he may call as to his reputation for peacefulness in the community, they are obviously going to have to consult with that office -- the same office where Judge Lester's wife is a prosecutor.
In prior murder trials that Ms. Sedgwick tried, news reports refer to her as the "chief homicide prosecutor" for the county. Unless she's been demoted, which I doubt, she still holds that position. She easily could be privy to information transmitted by her office to the Zimmerman prosecutors. Is this an apparent conflict of interest for Judge Lester? Does it create an appearance of impropriety?
Apparently, in most states, it would not. A judge's relationship to prosecutors is held to a different standard than his or her relationship to private lawyers under the (dubious, in my view) theory that prosecutors aren't making money from their cases and therefore don't have any particular incentive to care if they lose any individual case. The second reason given is that (shorter version) prosecutors are particularly upstanding since their mission is to represent all the people of a state, not just a particular person or client.
Thus, rules about potential conflicts that might arise between a judge and members of his spouse's law firm don't apply if the spouse's law firm is the prosecutor's office. In that event, there's no carryover.
Probably the only state that has found differently in a comparable, but not identical situation, is my own: Colorado. In Smith v. Beckman, 683 P.2d 1214, 1216 (Colo. Ct. App. 1984), the Colorado Court of Appeals found an appearance of impropriety requiring recusal when a judge's wife was a prosecutor in the same DA's office that was trying a misdemeanor case before him, even though she hadn't worked on or appeared in court on that particular case.
The [judicial] code is designed to assure not only that judges perform their duties in a manner that is, in fact, above reproach, but also they must conduct the affairs before their court in such a way as to enhance the respect of the judiciary in the eyes of the public. Therefore, the possibility that the facts alleged may give rise to the appearance of impropriety must always receive the highest consideration in ruling on a motion for disqualification.... It is of paramount importance that our judges meticulously avoid any appearance of partiality, not only to secure the confidence of litigants before their courts, but to retain public respect.
The marriage relationship tipped the scales.
The circumstances here are such that an appearance of impropriety is created by the close nature of the marriage relationship. A husband and wife generally conduct their personal and financial affairs as a partnership. In addition to living together, a husband and wife are also perceived to share confidences regarding their personal lives and employment situations. Generally, the public views married people as "a couple," as "a partnership," and as participants in a relationship more intimate than any other kind of relationship between individuals.In our view the existence of a marriage relationship between a judge and a deputy district attorney in the same county is sufficient to establish grounds for disqualification, even though no other facts call into question the judge's impartiality. Therefore, we hold that Judge Beckman should have granted the motion and disqualified himself.
How would the case have turned out if it the case was a nationally high-profile murder case and the judge's wife was the chief homicide prosecutor in the office in the next county, and her office had previously brought and dismissed criminal charges that originally included an allegation of violent conduct? Hard to say.
But other states think Colorado's finding went too far. It probably wouldn't be an issue for these states that the judge goes home every night to a spouse who tries high-profile murder cases in an adjoining county; colleagues in her office previously prosecuted the same defendant; and evidence from the case prosecuted by her office might potentially be an issue in the current trial. These states would likely find no reason to think the judge might not be completely impartial -- or that a reasonable person on the street would be concerned that such circumstances might affect or bias a judge's rulings. For example, in a Minnesota case, State v. Jacobs 791 N.W.2d 300, 302-303 (Minn. Ct. App. 2010), the court criticized the Colorado ruling and agreed with a contrary ruling in Wisconsin case, and held:
The closeness of the marital relationship, relied on in Beckman, is counter-balanced by the institutional aspects of employment in a public law firm such as a county attorney's office. As noted by the Wisconsin Supreme Court, the "special characteristics of government attorneys make it unlikely that a judge's relationship with one would affect his or her impartiality." The Harrell court noted that a prosecutor has no financial interest in the outcome of a particular prosecution and an insufficient reputational interest to create an appearance of impropriety in the prosecutor's spouse. The court noted: "The thought that a judge would have an increased propensity to convict criminals because of such a relationship is . . . preposterous."The MN court says prosecutors are especially trustworthy:We do not believe that the institutional loyalty of a prosecutor-spouse could reasonably appear to affect the impartiality of the judge-spouse. As noted above, a judge's own prior legal employment and whatever loyalties it might have created is something that the courts presume judges are capable of putting aside unless they personally participated in the same matter
Even from the institutional perspective, we note that prosecutors are not merely advocates but also "ministers of justice" charged with protecting the rights of the accused as well as the rights of the public.The MN court also cites a Michigan case for the proposition that prosecutors offices operate under a "traditional credo" that the office prevails when "justice is done," not merely when it wins a case.
So, because the judge's wife is prosecutor rather than a private lawyer, and because prosecutors are especially high-minded public servants, without a financial stake in the outcome, so long as the judge's wife isn't personally involved in the case, it's no more problematic than if she worked for the man on the moon. There's no appearance of a conflict or bias.
Nor according to the vast majority of states, would a reasonable person have a concern that the judge and his wife might discuss aspects of the case, or that he might be exposed to or influenced by pro-prosecution views on the case outside of the courtroom. Or that she might know and share with him details of her office's prior prosecution and dropping of charges against Zimmerman. Or that she would discuss the case with her husband and perhaps without realizing it, pass along helpful tips to others in her office who might pass them on to those prosecuting or investigating the case.
O'Mara won't challenge this judge, he's unlikely to win. And he needs to get moving on the bail motion, which even this Judge, in my view, is likely to grant. But considering the case as a whole, as between a judge whose husband is partners with a criminal defense lawyer who goes on TV, and a judge whose wife is a chief homicide prosecutor in the adjoining county, he can't be happy with outcome. I sure wouldn't be.
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