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Judge Denies George Zimmerman's Motion for Recusal

By Jeralyn, Section Crime in the News
Posted on Wed Aug 01, 2012 at 11:10:11 AM EST
Tags: George Zimmerman, Trayvon Martin (all tags)
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Judge Kenneth Lester has denied George Zimmerman's motion that he recuse himself from the case.

In an order entered today, Judge Lester stated Zimmerman's motion was "legally insufficient." He did not explain why. The rule on judicial disqualifications is here.

Details of Zimmerman's motion to recuse are here. As I opined then:

Put yourself in Zimmerman's shoes: The issue is how he feels, and whether his feelings are reasonable. Would you, if you were George Zimmerman, fear not getting a fair trial before Judge Lester?

I believe Zimmerman can request a writ of prohibition preventing the case from going forward while the appeals court reviews the issue.

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    Judge Denies George Zimmerman's Motion for Recusal | 87 comments (87 topical)

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    Wish he would ruled differently (none / 0) (#1)
    by Dadler on Wed Aug 01, 2012 at 11:15:33 AM EST
    I have no instinctive love for Zimmerman, except that in court he is entitled to the presumption of innocence and a zealous and competent defense, but I would rather a new judge were brought in. Lester has tended toward the oddly personal and inobjective, IMO.

    would'VE rule differently, sheesh (none / 0) (#2)
    by Dadler on Wed Aug 01, 2012 at 11:15:48 AM EST


    Parent
    At least you didn't say... (none / 0) (#17)
    by unitron on Wed Aug 01, 2012 at 01:31:02 PM EST
    ...would of. : - )

    And yeah, after that bail revocation bombshell they dropped on O'Mara, I'd just as soon ol' Ken was busy with other stuff right now and somebody new took over.

    Parent

    Judge Lester's order is certainly not (none / 0) (#3)
    by oculus on Wed Aug 01, 2012 at 11:19:57 AM EST
    expansive.  Summary denial.  

    The more he says, the easier to appeal? (none / 0) (#5)
    by Anne on Wed Aug 01, 2012 at 11:41:36 AM EST
    I'd assume that, if O'Mara appeals, Lester will eventually have to provide the legal reasoning and basis for his ruling, but at the moment, it would appear that Lester has given O'Mara nothing to go on other than "no."

    Parent
    Lester's provision is sufficient (none / 0) (#6)
    by cboldt on Wed Aug 01, 2012 at 11:55:50 AM EST
    Lester won't have to argue anything.  It's up to O'Mara to argue why the asserted facts are sufficient demonstration of bias, as a matter of law.  The state can argue the opposite, if it wants.  All assuming, of course, that O'Mara appeals.

    Parent
    Right... (none / 0) (#20)
    by bmaz on Wed Aug 01, 2012 at 01:44:57 PM EST
    Additionally, I think Lester may have have caught the gist of O'Mara's motion, regarding impertinent editorializing by the court.  I still think that was a message that had to be sent to Lester, whether he recused or not.

    Lester was already unfriendly to Zimmerman, that was clear; but the trite commentary that is not legally necessary to the issues at hand, and which poisoned Zimmerman with the public, had to stop.  Irrespective of whether O'Mara appeals or not, I think there was value to this exercise, and that is why I considered it a proper course to start with.

    Parent

    Is it just me, or do others think judges have too (none / 0) (#4)
    by sarcastic unnamed one on Wed Aug 01, 2012 at 11:38:23 AM EST
    much power in the courtroom?

    Depends on the judge, I think. (none / 0) (#44)
    by oculus on Wed Aug 01, 2012 at 07:07:59 PM EST


    Parent
    Judge Lester Can't Comment (none / 0) (#7)
    by Nettles18 on Wed Aug 01, 2012 at 12:07:43 PM EST
    Why he ruled legally insufficient. He has to say legally sufficient or illegally sufficent, if this is considered a 1st request to recuse a Judge in this case.  On the 2nd page of the order the Judge says he is considering this as a 1st attempt to recuse the Judge but would like to argue it is really the 2nd request by the defense; in which case, he can provide comment.  Note this part: The court is not permitted to deny the allegations supporting the motion as untrue, reject them as unfounded, or comment upon them at all. To do so establishes independent grounds for disqualification. Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978).  So did the Judge rule that the allegations made are legally insufficient for George Zimmerman to think he can't get a fair trial.  What defendant in the world, would want this Judge on the case given those allegations?  How does a biased Judge rule on their own bias...that seems messed up!

    He can argue the sufficiency (none / 0) (#10)
    by cboldt on Wed Aug 01, 2012 at 12:32:49 PM EST
    "He [Lester] can't comment on why he ruled legally insufficient" is false.

    The only thing Lester can't argue is the facts themselves; whatever basis movant (O'Mara/Zimmerman) use to reach the conclusion of bias.  Lester can argue that those facts don't represent a reasonable basis for thinking the court is biased.  Lester cited cases, and if it was the case (I don't think it is) he could show how the allegations in this case are parallel with the allegations in the cases he uses to support his conclusion that a reasonable person would not perceive bias in his statements.

    Parent

    The Sirica guide to recussal seems right here (none / 0) (#8)
    by Lacy on Wed Aug 01, 2012 at 12:21:12 PM EST
    What the judge has said about Zimmerman is based on the behavior of the defendant, and is a matter of fact. And just because the defendant doesn't like the judge's comments or rulings, the law does not give free access to try to find a friendly judge. See the Sirica guide to recussal.

    Many of Lesters statements are a matter of (none / 0) (#9)
    by leftwig on Wed Aug 01, 2012 at 12:30:30 PM EST
    opinion, not a reciting of established facts.  For example, is it a fact that the Zimmermans were preparing to flee following the first bond hearing?  

    Parent
    That statement convenced me he wanted off the... (none / 0) (#11)
    by redwolf on Wed Aug 01, 2012 at 12:33:56 PM EST
    case.  There's simply nothing to support it and defiantly shows bias on his part.  I haven't a clue how he expects the case to upheld on appeal.

    Parent
    It convinced me that (none / 0) (#76)
    by Tamta on Thu Aug 02, 2012 at 02:50:40 PM EST
    Lester may be using the judicial process to support the State in trying to construct a foundation for  a depraved mind that the case evidence may not actually be able to support. Lester calls Zimmerman a manipulator, a liar, disrespectful, and says that if it was not for electronic monitoring, Zimmerman and his gift cards would be gone. Initially I saw all of this as a will to publicly embarrass and discredit Zimmerman in order to undermine his success with a SYG motion, but it may be going farther than that now. Lester's decisions also sound very similar to the State's motions, however I am not a lawyer and maybe that is standard when  a judge feels a side has made a compelling argument.

    Parent
    That's not necessarily the rule in Florida (none / 0) (#12)
    by MJW on Wed Aug 01, 2012 at 12:34:56 PM EST
    See, for example, DeMetro v. Barad.

    While cautioning in Brown v. St. George Island that a judge is not subject to disqualification simply because a ruling in an earlier proceeding had the effect of rejecting a party's testimony, the supreme court made clear that disqualification is appropriate where there is "a clear implication that the judge will not believe the complaining party's testimony in the future." Brown, 561 So.2d 253, 257, n. 7. In this case, the trial judge's denouncement of the petitioners' character and believability in the prior proceeding was a strong implication that he would not believe them in future proceedings, and that he had already formed a hostile opinion as to their fitness as parents. Brown and Deauville Realty compel disqualification.


    Parent
    I'm not even on the Z-team... (none / 0) (#18)
    by unitron on Wed Aug 01, 2012 at 01:35:16 PM EST
    "What the judge has said about Zimmerman is based on the behavior of the defendant, and is a matter of fact."

    I'm not even on the Z-team and I think it's more a matter of based on his interpretation of the behavior of the defendent, for which he never really allowed any opportunity for alternative explanations to be argued.

    Parent

    problems with subjective decisions (none / 0) (#13)
    by NYShooter on Wed Aug 01, 2012 at 12:39:00 PM EST
    These rules, "in the opinion of the defendant," are always problematic. How many innocent people have been shot because, "in the opinion of the homeowner," a teenager retrieving an errant football was thought to be a burglar? I don't know how you would write a better standard but this one is subject to all kinds of mischief.

    Hypothetically, assume a defendant is guilty of the charges against him/her, and also assume that the judge indicates that he/she is skeptical of his/her defense argument. Wouldn't it be reasonable that the defendant would want a different judge?

    So, I guess it comes down to the old, "it depends on what your definition of is, is." If the defendant is actually guilty, and the judge indicates he concurs he's guilty, how can you rely on the defendant's belief as to whether he/she can get a "fair" trial to be the determinate factor?

    What is the definition of "fair?"  


    I give up. How many? (5.00 / 1) (#24)
    by Redbrow on Wed Aug 01, 2012 at 02:26:53 PM EST
    How many innocent people have been shot because, "in the opinion of the homeowner," a teenager retrieving an errant football was thought to be a burglar?

    None that I can find.

    Parent

    You're forgetting that small detail known (none / 0) (#14)
    by Anne on Wed Aug 01, 2012 at 01:02:14 PM EST
    as the presumption of innocence, and everything - including the defendant's right to a "fair trial" - flows from that.

    Which means that I don't think you even get to the hypothetical you've proposed.

    Parent

    Magic words are "legally insufficient" (none / 0) (#15)
    by rhbrandon on Wed Aug 01, 2012 at 01:25:18 PM EST
    See Barnhill v. State, 834 So.2d 836 (Fla., 2002) for one discussion of judicial recusal:

    "The motion to disqualify is legally insufficient because the supporting affidavit made by the defendant does not state the specific facts which lead him to believe he will not receive a fair trial. The oath that appears in the record merely refers to "the matters, which are contained in this motion." Barnhill did not file an affidavit stating the facts and the reasons for the belief that bias or prejudice exists. Further, the certificate of counsel of record is attached to the motion itself and states only that the statements of the defendant contained "herein" are made in good faith. The motion was technically insufficient, and the trial judge's ruling was correct." At 843.

    I have no doubt that O'Mara will file the petition for prohibition or, alternatively, mandamus. However, there is no obligation on the part of the state appellate court to grant the preliminary writ that would stay the proceedings. Extraordinary relief is extraordinarily hard to come by. I've had what I considered perfectly nice petitions shot down within mere hours. The issue may have to preserve the issue by further pretrial motion for appeal.

    Has the affidavit been posted here to look at?

    Saw the motion on the discussion site... (none / 0) (#16)
    by rhbrandon on Wed Aug 01, 2012 at 01:29:54 PM EST
    and Zimmerman's notarized signature at the end of it. Is that sufficient enough under Florida law?

    Parent
    Sufficiency depends on the facts (none / 0) (#19)
    by cboldt on Wed Aug 01, 2012 at 01:37:38 PM EST
    I don't believe there are any formal deficiencies in O'Mara's motion for disqualification, and the motion cites particular facts, with specificity, so the issue isn't lack of specificity as to facts that lead to a belief the judge is biased.

    Assuming those points are correct, Lester is saying that his contentions (e.g., Zimmerman planned to flee) in his motion granting bail are insufficient to cause a reasonable person to doubt that Lester is impartial.

    Parent

    it's sufficient (none / 0) (#56)
    by Jeralyn on Wed Aug 01, 2012 at 10:06:49 PM EST
    it just has to be either "sworn to by the party by signing the motion under oath or by a separate affidavit." He signed it under oath (it was sworn to) stating the facts in the motion are true. And his lawyers signed tseparately that the motion and his statements were made in good faith. That's all that's required.

    Parent
    But, as cbodt says, that... (none / 0) (#59)
    by Gandydancer on Wed Aug 01, 2012 at 10:18:36 PM EST
    ...is mere formal sufficiecy. The facts alleged must also create a objectively reasonable well-founded fear of an unfair trial. Lester got to decide that, and said no.

    Parent
    I think there's a difference (none / 0) (#23)
    by MJW on Wed Aug 01, 2012 at 02:15:55 PM EST
    In Barnhill the affidaivit seemed to be separate, and simply referenced the motion, while Zimmerman appears to be swearing to the the entire motion, which includes the allegations of prejudice against Judge Lester.

    The ruling in Barnhill seems remarkably nitpicky.

    Parent

    Everything can be found... (none / 0) (#46)
    by heidelja on Wed Aug 01, 2012 at 08:05:23 PM EST
    ...here

    Parent
    The Disqual Motion (none / 0) (#21)
    by bmaz on Wed Aug 01, 2012 at 01:48:55 PM EST
    looked plenty sufficient to me. By the same token, I thought the state's response, which was their best work product by far to date, gave enough cover to Lester is he wanted to deny the motion. It is certainly an appealable issue, not sure that such will go anywhere interlocutorily though.  

    Fodder for interlocutory decision (5.00 / 1) (#22)
    by cboldt on Wed Aug 01, 2012 at 02:02:41 PM EST
    The issue of bias is fundamental, and given that the rules stipulate no action until the motion is disposed of, I think the scheme is such that, if an adverse decision comes in response to a motion to recuse for bias, that decision is grounds for appeal before the trial.

    I thought the state's response was long on bombast and short on argument.  I think O'Mara has the better hand, as a matter of law, by far.  I don't think the Florida courts will decide this case on the law, this is a political case, not a legal case.

    Parent

    Strangely... (none / 0) (#47)
    by heidelja on Wed Aug 01, 2012 at 08:15:04 PM EST
    ...the State's response did not suggest the motion was insufficient! But then they think there is sufficient reason to charge GZ with 2nd degree murder, so what do they know?

    Simply, Lester AGAIN makes up "the law" as he goes along. As he did for the meaning of "judicial process"!

    Parent

    The State's response ends... (none / 0) (#50)
    by Gandydancer on Wed Aug 01, 2012 at 09:21:23 PM EST
    ...with the statement that Zimmerman's "claim that the Court has done anything to engender a reasonable fear of undue prejudice is absurd...", which may be false (e.g., Lester's assertion that it is reasonable to conclude that the Zimmermans "would" rather than "might" have fled certainly indicates to me an "undue" prejudice) but is certainly an assertion of legal insufficiency.

    Parent
    Interesting footnote on p. 2. (none / 0) (#27)
    by oculus on Wed Aug 01, 2012 at 03:07:35 PM EST
    Judge Lester opines on whether this is a subsequent motion under the same section as the first. Motion.

    that was addressed (none / 0) (#28)
    by Jeralyn on Wed Aug 01, 2012 at 03:26:32 PM EST
    in my earlier post on O'Maras Motion.

    This is O'Mara's second motion to recuse a judge, but the motion he 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). Although he 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) (although the state might disagree.)

    Fla. R. Jud. Admin. 2.330 (2012):

    (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.

    (g) Determination--Successive Motions. --If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.

    If Judge Lester treats the motion as the first one filed under Section (d)(1), he has to treat the facts as true. Only if he deems it a second motion under (d)(1) does he have discretion to rule on whether they are true or not.

    It was not a second motion under that subsection and Lester was smart enough to say so and take that issue off the table for appeal.


    Parent

    I interpreted the footnote as Judge (none / 0) (#33)
    by oculus on Wed Aug 01, 2012 at 05:25:26 PM EST
    Lester deciding as you stated, but welcoming the appellate court to differ.  

    Parent
    Yes (none / 0) (#35)
    by bmaz on Wed Aug 01, 2012 at 05:31:43 PM EST
    That is how I take it too. And a sound way for him to put it too, under the circumstances.  Also leaves a marker for O'Mara, letting him know that if it comes back as a second recusal motion for further proceedings, he is going to lose on that too.

    Parent
    That seems silly to me (none / 0) (#29)
    by MJW on Wed Aug 01, 2012 at 03:35:14 PM EST
    The motion O'Mara filed for the first judge specifically stated -- twice -- it was under 2.330(d)(2).  The original judge said that she didn't think she needed to disqualify herself for either of the two reasons O'Mara gave when taken alone, but that totality of the circumstances provided a legal basis for granting the motion.

    Both reasons were related to the judge's marriage to Mark Nejame, so they fall under 2.330(d)(2). Neither the motion nor the order granting the motion refer to 2.330(d)(1). Even if the judge had granted the motion under subsection (1) instead (2), I don't see how Zimmerman can be held responsible, when the motion was specifically filed under subsection (2). If the judge didn't think she was disqualified for the reasons stated in the motion, she should have denied it.

    Parent

    Judge Lester will be adjudicating (none / 0) (#30)
    by IrishGerard on Wed Aug 01, 2012 at 03:41:16 PM EST
     an immunity motion on another murder case this week where a women shot and killed her estranged husband.[Orlando Sentinel]

    Seems kind of thin for immunity? But it will be interesting to see how Lester constructs his ruling either for or against.

    this is being discussed in the forums (none / 0) (#31)
    by Jeralyn on Wed Aug 01, 2012 at 04:39:56 PM EST
    please keep this discussion to the recusal motion

    Parent
    I think the judge should have explained (none / 0) (#32)
    by Jeralyn on Wed Aug 01, 2012 at 05:03:08 PM EST
    why he found the motion "legally insufficient."

    All that's required is Zimmerman express a fear he won't get a fair trial from the judge and his reasons for that fear. The judge is only supposed to decide whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. The court has to review the motion from the litigant's perspective questioning the judge's impartiality rather than  the judge's perspective.

    From CLARENDON NATIONAL INSURANCE COMPANY v. SHOGREEN, 2008:

    [A] party seeking to disqualify a judge need only show "a well grounded fear that he will not receive a fair trial at the hands of the judge.   It is not a question of how the judge feels;  it is a question of what feeling resides in the affiant's mind and the basis for such feeling." Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938)).  

    When a motion satisfies this requirement, it is legally sufficient and the trial court judge must grant the motion and proceed no further.  MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1339 (Fla.1990);  see also Fla. R. Jud. Admin. 2.330

    Viewing Zimmerman's motion from his point of view, what was not reasonable about his fear?

    In the Campbell's Soup case cited in the defense motion, recusal was ordered where the Judge stated he thought the client was duping his lawyer. Isn't that what Lester has said a few times to O'Mara: that he has no doubt O'Mara didn't know about the bond money and was misled by his client and his wife?

    What if Zimmerman wanted to call his wife as a witness at the SYG hearing, where Lester has to decide the facts? Lester thinks she lied under oath at the bond hearing. What reasonable person wouldn't fear Lester would not be impartial at in considering her testimony?

    Regardless, the judge should have stated why he found the motion "legally insufficient."

    With an appeal of the recusal order, a subsequent stand your ground motion, and a writ of prohibition when that's denied, this case likely won't see trial for two years or more.

    What is procedure... (none / 0) (#34)
    by bmaz on Wed Aug 01, 2012 at 05:29:11 PM EST
    ...for a criminal interlocutory appeal in FL? Straight appeal of special action/extraordinary writ?  If the latter, it may move fairly quickly; if not, then maybe not.

    It is actually laid out pretty cleanly, both pleadings on the disqualification issue were sufficiently briefed, and Lester, for once, did not bugger up the pie with a goofy order. So, it is a pretty clean set up assuming O'Mara does indeed pull the trigger on taking it up.

    I just have no sufficient experience with FL law enough to know. The one FL crim atty I spoke to said it was a good motion, but didn't think it would prevail.  I do, through another civil litigator friend there, know of several lawyers that had seemingly superb recusal motions with horrible facts surrounding the judge's conduct in relation to foreclosure relief cases, that never got anywhere, at trial level or appeal, with recusal efforts.  Obviously that is different, but FWIW.

    Parent

    i think it's a (none / 0) (#55)
    by Jeralyn on Wed Aug 01, 2012 at 10:03:26 PM EST
    petition for a writ of prohibition.

    Parent
    Under the rule you cite in your link (none / 0) (#37)
    by oculus on Wed Aug 01, 2012 at 06:21:15 PM EST
    w/i this post, the judge is barred from explaining why he/she found the motion legally insufficient:

     

    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.


    Parent
    It doesn't say... (none / 0) (#53)
    by Gandydancer on Wed Aug 01, 2012 at 09:54:01 PM EST
    ...that the judge can't explain his reasoning for finding legal insufficiency. It says the judge can't provide any "other reason for denial" (such as an assertion that he isn't biased).

    Lester does explain, at least to the extent of providing citations. (Liteky, at least, is or could have been lifted from the prosection's response.)

    Parent

    Don't know if this will violate the.... (none / 0) (#40)
    by Jello333 on Wed Aug 01, 2012 at 06:54:05 PM EST
    .... "no insults" rule we have set up here. Hope not, but I gotta say this: I think Lester is WAY too arrogant and thin-skinned to be a judge.

    Parent
    Lester is very highly regarded ... (none / 0) (#49)
    by Yman on Wed Aug 01, 2012 at 09:08:06 PM EST
    ... by the criminal defense lawyers in his district.

    Parent
    The poll wasn't just of.... (4.00 / 3) (#51)
    by Gandydancer on Wed Aug 01, 2012 at 09:35:58 PM EST
    ...defense lawyers, though I suppose they outnumber the prosecutors.

    The lowest ratings were of a retiree. It would be interesting to see if his ratings were higher before his hands were pried off their balls.

    Parent

    That's my thought too (none / 0) (#58)
    by Jello333 on Wed Aug 01, 2012 at 10:17:42 PM EST
    Which is why I think what O'Mara did took some nerve. I'm not thrilled with a lot of what MOM has done, but filing to get Lester dumped was cool (seeing how MOM has to work with him on future cases).

    Parent
    Given the judge Mr. O'Mara challenged (none / 0) (#60)
    by oculus on Wed Aug 01, 2012 at 10:37:22 PM EST
    for cause decides whether the challenge should be granted, I'm not so sure this was Mr. O'Mara's best tactical decision.  Appearing in front of a judge who has been challenged but the challenge was not granted doesn't make for the best conditions for future trying of the case from the standpoint of the challenging party.  

    Parent
    Lester only gets to decide... (5.00 / 1) (#64)
    by Gandydancer on Wed Aug 01, 2012 at 10:46:30 PM EST
    ...the first impression. Writ of Prohibition next. Anyway, sucking up to the judge was tried and hadn't worked. Time to work him up and see how egregious you can get him to be, maybe, once you've identified the tendency.

    Parent
    I am assuming the standard of (none / 0) (#66)
    by oculus on Wed Aug 01, 2012 at 10:55:56 PM EST
    review on the writ is abuse of discretion.  

    Parent
    Ain't saying MOM is going... (none / 0) (#67)
    by Gandydancer on Wed Aug 01, 2012 at 11:16:54 PM EST
    ..to get help on appeal. Thought Lester was clever not to state his grounds. Gives an appeal court licence to invent the grounds that appeal to them. But if the judge is on the prosecution's team I don't see the point of playing chew toy.

    Some of MOM's best chew toy moments are quoted by the prosection in their response to his request for recusal, p.8. Embarassing.

    Parent

    no, it's de novo (none / 0) (#70)
    by Jeralyn on Thu Aug 02, 2012 at 12:11:44 AM EST
    Aberdeen, 2009
    :

    Whether a motion is legally sufficient is a question of law that is reviewed by the appellate court de novo. Barnhill v. State, 834 So. 2d 836, 843 (Fla. 2002), cert. denied, 539 U.S. 917 (2003); Chillingworth v. State, 846 So. 2d 674, 676 (Fla. 4th DCA 2003). If a judge's prejudice is
    "predicated on grounds with a modicum of reason," the judge should promptly recuse. Hayslip v. Douglas, 400 So. 2d 553, 555 (Fla. 4th DCA
    1981).

    Here's a Florida case explaining why a denial of motion to recuse is reviewable by a writ of prohibiiton, and if the writ is denied, a petition for certiorari can follow.

    Parent

    I still don't think Lester will... (none / 0) (#68)
    by Jello333 on Wed Aug 01, 2012 at 11:23:17 PM EST
    ... be on this case. Surely MOM is gonna appeal, and I can't imagine how a higher-level judge (appeals) can deny that Lester is biased. Or, from what I read, he doesn't even have to be found "actually" biased. All that's needed is that it's reasonable that George "believes" Lester is biased. And how could he NOT?!

    Parent
    Imagine it. (none / 0) (#69)
    by Gandydancer on Wed Aug 01, 2012 at 11:32:51 PM EST
    Very collegial folks, judges.

    Parent
    The respondents had no trouble ... (none / 0) (#72)
    by Yman on Thu Aug 02, 2012 at 07:12:58 AM EST
    ... being very critical of the judges who received negative reviews - you can read their comments.  The lowest ratings were not of a "retiree" - he's an active judge who's scheduled to retire at the end of the year, and there were many active judges who received mixed or negative reviews.  Comments by respondents are anonymous and I would assume he ratings themselves are, too.

    Parent
    Orlando Sentinel Scott Maxwell... (none / 0) (#88)
    by heidelja on Fri Aug 03, 2012 at 07:22:24 AM EST
    ..."said" a little more for this perspective in his blog on July 25 for a few judges scoring above 4.5. It can be found here.

    Maxwell does not mention Lester because he may have focused solely on Orange County judges and not Central Florida judges from neighboring Seminole County? Should this be seen as a backhanded slap on Lester by an often criticized liberal news commenter when he had the chance to praise him and he did not? Or is my intuitive sense correct by suggesting some judge's names are not mentioned by newspapers out "courtesy" to remain out of the limelight if they decline to do so?

    Parent

    Heck, -I- think Shellie lied... (none / 0) (#57)
    by Gandydancer on Wed Aug 01, 2012 at 10:10:06 PM EST
    ... I think the prosecution's response is correct that the judge cannot be required not to reach conclusions from what he's seen and what's on the record in his courtroom. It's when he starts jumping to wild conclusions (Z doesn't deny killing M, therefor(sic) the state's case is strong; SZ lied about having other resources and GZ had another passport, therefor(sic) they "would" have tried to leave the country had the judge not imposed GPS) that you conclude that his hotility is overpowering his impartiality.

    Parent
    I know I am sooo NAL (none / 0) (#61)
    by DebFrmHell on Wed Aug 01, 2012 at 10:38:19 PM EST
    but if I were O'Mara, I would file for that SYG hearing, ASAP.  I don't think any judge is willing to risk a career over Gorge Zimmerman.  I think it would be referred back to a jury trial.

    Appeal the SYG on a basis of bias, as shown in the Motion to Recuse?  In his denial, he has to accept the facts as written to be true, right?

    I hope that makes sense.  I have a hard time keeping up with all of you brainiacs!

    If I have it all screwed up, I freely admit... I can be a stooge.

    8-)

    Parent

    MOM is saying Lester... (5.00 / 1) (#65)
    by Gandydancer on Wed Aug 01, 2012 at 10:54:45 PM EST
    ...shouldn't preside over the SYG. Logically filing the Writ of Prohibition before the SYG is required, though the timeline may require him to file the latter with Lester anyway.

    Parent
    Lot of wiggle room in the phrase (none / 0) (#36)
    by Big Tent Democrat on Wed Aug 01, 2012 at 05:50:55 PM EST
    "well grounded."

    Please explain. (none / 0) (#42)
    by oculus on Wed Aug 01, 2012 at 07:01:56 PM EST


    Parent
    In my opinion (5.00 / 1) (#45)
    by Big Tent Democrat on Wed Aug 01, 2012 at 07:43:27 PM EST
    your question is not well grounded.

    Answer denied.

    Parent

    OK I'll take a writ. (none / 0) (#62)
    by oculus on Wed Aug 01, 2012 at 10:38:30 PM EST


    Parent
    Is It Like This Everywhere in the US? (none / 0) (#38)
    by RickyJim on Wed Aug 01, 2012 at 06:25:11 PM EST
    It seems completely obvious to me that a recusal motion is something for an appeals court, not the judge in question.  Do we want student's to grade themselves.  Defendants to judge themselves?  I can see why Supreme Court Justices decide such requests for themselves, but that is not the case here.

    No, (none / 0) (#39)
    by bmaz on Wed Aug 01, 2012 at 06:39:30 PM EST
    It is properly addressed to the trial court, usually to the trial judge himself, in some situations, to the presiding trial court judge. That is just the way it is structured, and most of the time that is more than sufficient actually.

    Parent
    Yeah, sorta like "internal police... (none / 0) (#41)
    by Jello333 on Wed Aug 01, 2012 at 06:57:28 PM EST
    ... investigation".

    Scary stuff, huh?

    Parent

    In CA state court, a challenge for (none / 0) (#43)
    by oculus on Wed Aug 01, 2012 at 07:07:11 PM EST
    cause is ruled on by a different judge.  

    link

    Parent

    Since 1927. (none / 0) (#52)
    by Gandydancer on Wed Aug 01, 2012 at 09:42:31 PM EST


    Parent
    The order by Lester that Jeralyn... (none / 0) (#48)
    by Gandydancer on Wed Aug 01, 2012 at 08:22:45 PM EST
    ...links to to ends (above the footnote wherein he suggests that Recksidler could burn the first 2.33(d)(1) even though the motion was filed as a 2.33(d)(2)) with "Accordingly, it is" (no period or continuation). Is it missing a page?

    its a two page order (none / 0) (#54)
    by Jeralyn on Wed Aug 01, 2012 at 10:01:46 PM EST
    just scroll down. The media reversed the pages but they are both there. Or read the filed version, now that it's been posted.

    Parent
    Right. (none / 0) (#63)
    by Gandydancer on Wed Aug 01, 2012 at 10:39:40 PM EST
    Silly of me not to see that.

    Parent
    Beliefs vs fears (none / 0) (#71)
    by Lacy on Thu Aug 02, 2012 at 06:42:52 AM EST
    A belief and/or fear that you're going to get convicted can also exist when you realize people, including the Judge, are "on" to the truth about you. And it is undoubtedly a very common, sincerely held, but non-actionable fear.

    I am all for... (none / 0) (#74)
    by heidelja on Thu Aug 02, 2012 at 02:02:07 PM EST
    ...spinning up "conspiracy theories"! (LOL) I have been accused for being one coming from right wing boards doing just that!

    Maybe we should look at it this way then. Since GZ had called the cops on Feb 26 and knew they were on the way, he shot TM because he beleived he had nothing to fear "hunting a black kid down like a rabbit" and then deliberately shooting him because he could talk any charges down to "2nd degree murder with a depraved mind" from "premeditated first degree murder"!

    Per your suggestion, we SEE now the judge is on to him big time! Of course, I leave out that GZ on Feb 26 never knew how manners of ones with ADD/ADHD over a period of ten weeks can go misperceived by others who do not understand how one so afflicted interprets and expresses his actions can go perceived as a liar.

    In all seriousness, I believe GZ rightly feels he will not be treated without bias if Lester remains the judge. Lester is one whose logical sense horribly twists the law to keep one guilty as charged as the State suggests. This for a case that has been undertaken by a horribly twisted sense of subjective reasoning. One that avoided a grand jury that would have steered it away from the subjective reasoning of head hunting District Attorneys. Lester is one who would never break away from the logic of the Prosecutor because he has reflected it twice since June 1 without calling for specific hearings for the defense to fully argue its side. This on top of the specificity stated in the defense motion to disqualify the judge for what they see as the biased manner of the judge.

    Parent

    i'm not sure where this fits in the forum, but ... (none / 0) (#73)
    by SuzieTampa on Thu Aug 02, 2012 at 01:05:22 PM EST
    the Associated Press looked at former Chief Bill Lee's emails and, not surprisingly, found them to be pretty nasty.

    Perhaps you should make it clear... (5.00 / 1) (#87)
    by unitron on Fri Aug 03, 2012 at 06:47:18 AM EST
    ...that you're talking about emails he received, not that he sent.

    Parent
    Jackson v State, 599 So 2d 103, 107 (Fla 1992) (none / 0) (#75)
    by heidelja on Thu Aug 02, 2012 at 02:30:36 PM EST
    is the fist case cited in the second paragraph of Lester's order. Does anyone have a link to this case?

    Link ... (none / 0) (#77)
    by Yman on Thu Aug 02, 2012 at 02:51:09 PM EST
    is here.

    Parent
    The decision includes... (none / 0) (#78)
    by Gandydancer on Thu Aug 02, 2012 at 03:38:15 PM EST
    ...the following relevant finding:
    ...allegations that the trial judge had formed a fixed opinion of the defendant's guilt, even where it is alleged that the judge discussed his opinion with others, is generally legally insufficient to mandate disqualification. [[Dragovich, 492 So.2d]] at 352.


    Parent
    Not so relevant (none / 0) (#79)
    by MJW on Thu Aug 02, 2012 at 05:05:42 PM EST
    I don't really think that's particularly relevant, because in the motion, O'Mara didn't claim Judge Lester should be disqualified because he'd formed an opinion on Zimmerman's guilt. He also didn't claim Lester should be disqualified for ruling against Zimmerman. So establishing that those aren't grounds for recusal is somewhat beside the point.

    One could argue that if those aren't grounds for disqualification, then forming a general opinion of the defendant's honesty based on a matters having little to do with the issues in the case should also not be grounds for disqualification. But why argue so indirectly? Why not cite cases directly on point? Perhaps because the Florida case law seems to go the other way.

    Parent

    Maybe a bit TOO quiet (none / 0) (#80)
    by MJW on Thu Aug 02, 2012 at 05:17:48 PM EST
    I'm surprised there's been no comment about the decision on Zimmerman's legal website, gzlegalcase.com.

    Need time to prepare a petition (none / 0) (#81)
    by cboldt on Thu Aug 02, 2012 at 05:41:16 PM EST
    I figure O'Mara would say something sooner, if he was going to go ahead without a petition for a writ of prohibition.  I speculate that the absence of remark on the defense website is a signal that he is working on that petition, and will post both the petition and remarks when/after the petition is filed in the Circuit Court of Appeals.

    But, on the other hand, if he decides to give up the issue, I think making a remark on the subject (beyond acknowledging the order and O'Mara's decision to accept it) only hurts his cause.

    I don't think he'll give up the issue.  The motion was taken in good faith, meaning that Zimmerman does not believe he is facing an impartial judge.  As you've pointed out, his argument in favor of recusal is sound, and the rebuttals have not been responsive to O'Mara's argument.

    Parent

    Not on GZ blog, but (none / 0) (#86)
    by Tamta on Thu Aug 02, 2012 at 10:34:03 PM EST
    O'Mara here

    Parent
    RSVP (none / 0) (#82)
    by Cylinder on Thu Aug 02, 2012 at 05:53:33 PM EST
    What's with the court's bizzare fascination with invitations - inviting the state to indict Shellie and George Zimmerman in seperate orders and now inviting the appealate court to allow him to judge the truth of the assertions in the motion to disqualify.

    To my layperson mind, at least, the footnote goes beyond the finding of suffeciency and takes issue with the motion itself.

    The Court is confused (none / 0) (#83)
    by cboldt on Thu Aug 02, 2012 at 06:11:36 PM EST
    Reckseidler's Order granting O'Mara's motion to disqualify conflates (d)(2) with (d)(1), too.  She correctly noted the motion was brought under (d)(2), then applied the standard for ruling (must assume all facts are true, etc.) on a (d)(1) motion to disqualify for impartiality.

    2.330(f) is very clear, "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."  That limitation doesn't appear to apply to a motion under (d)(2).

    Parent

    Is the court also (none / 0) (#84)
    by Tamta on Thu Aug 02, 2012 at 07:46:06 PM EST
    confused about future contempt proceedings against Zimmerman, as per the  Order to Reinstate Bond?

    Parent
    I would consider that indecision (none / 0) (#85)
    by cboldt on Thu Aug 02, 2012 at 08:00:28 PM EST
    As far as holding Zimmerman in contempt, I don't see that as an issue of confusion.  Assuming for the sake of argument that the court has the power to find defendant in contempt for sitting like a potted palm, the court simply is indecisive about whether or not to use its contempt power.  I think it would prefer that the state charge the potted palm with a violation of 903.035.

    Lester appears to be irked that he has to follow the Paul decision.  I think he would prefer to keep Zimmerman incarcerated; based on the strength of the state's case and dearth of evidence on the record that the use of force had any legal justification.

    Parent

    So why doesn't the (none / 0) (#89)
    by Tamta on Fri Aug 03, 2012 at 12:07:07 PM EST
    state do so?

    Parent
    Judge Denies George Zimmerman's Motion for Recusal | 87 comments (87 topical)

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