George Zimmerman's Pet. for Writ of Prohibiton, Response Due Aug. 23

By Jeralyn, Section Crime in the News
Posted on Tue Aug 14, 2012 at 05:28:57 PM EST
Tags: George Zimmerman, Trayvon Martin (all tags)

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Mark O'Mara has posted the Petition for Writ of Prohibition and all Appendices filed in the 5th Circuit DCA on the GZlegalcase website. The index as to what is in the Appendices is here. The Petition for Writ of Prohibition (concerning the recusal of Judge Kenneth Lester) is here.

The Appendices have transcripts of the April 20, April 27, June 1 and June 29 hearings. They also have transcripts of Investigator Singleton and Serion's interview of Zimmerman the night of the shooting and Investigator Serino's telephone call with George on 3/25/12. There's also a transcript of witness 6 ("John")'s interview with FDLE on March 20, 2012. He is the witness who saw the struggle between Zimmerman and Trayvon Martin and says Trayvon was on top and Zimmerman was struggling to get up. [More...]

There's also a transcript of Witness 11's 911 call during which the shot can be heard.

The 5th Circuit DCA docket for the case is here. It is Case Number: 5D12-3198.

An order was entered today:

ORD-Writs Show Cause w/out Reply

The due date is August 23. It says the the case will not be stayed between now and August 23.

The order says "writs" rather than "writ." I think that means two writs issued, one to Judge Lester and one to the state. (Added: The court has since published the actual order, and only the State was required to respond, not Judge Lester. Judges are permitted to file a separate response, but not required to. The "writs" does not refer to more than one writ. However, the use of the phrase "writs to show case" does not seem to be a clerical error as some have assumed. In Florida, apparently, one responds to a writ to show cause with a "response." In other words, the response is the pleading by which one shows just cause not to grant the writ.

I assume the "w/o reply" means the defense cannot file a reply to whatever Judge Lester or the State files in response, but I'm not entirely clear on that. If someone has a different interpretation, please post it in comments. The Orlando Sentinel reporter says the state was directed to reply, but I'm not convinced the court wasn't also so directed.

From the Florida statute on writs of prohibition:

81.021 Prohibition; supersedeas.— If in its judgment a prima facie case is made, the court shall issue an order directed to the body presuming to exercise jurisdiction and to plaintiff to show cause why the writ of prohibition should not issue. The order is a supersedeas and shall be served on the body presuming to exercise jurisdiction and the parties at such time as the court directs and those served shall defend within the time set in the writ. In case of failure to make an answer, it may be enforced by contempt. (my emphasis)

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George Zimmerman's Pet. for Writ of Prohibiton, Response Due Aug. 23 | 21 comments (21 topical)

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So... (none / 0) (#1)
by bmaz on Tue Aug 14, 2012 at 06:35:57 PM EST

It is in the form of a mandamus and the prima facie has been met as to response, but not the burden for TRO/injunction?

That is what appears to me to be the case. Says to me, the action is still alive, but in trouble as to likely result. Am I missing something?

Always trouble (none / 0) (#2)
by cboldt on Tue Aug 14, 2012 at 06:54:55 PM EST

Legal action is all about trouble. One side or the other will prevail.

I think your question is settled by understanding the process (not that I do), in that there is a appellate court issued formality before the state or the judge may respond. That in contrast with a right to respond.


: Heh (none / 0) (#3)
by bmaz on Tue Aug 14, 2012 at 09:00:47 PM EST

Well, yes, that is exactly what I was inquiring about.

Are you missing something? (none / 0) (#25)
by boar d laze on Wed Aug 22, 2012 at 06:08:51 PM EST

Yes.


Meaning of w/o Reply (none / 0) (#4)
by cboldt on Wed Aug 15, 2012 at 12:18:02 PM EST

I think "without reply" means that the party receiving the appellate court's order must comply with that order; and does not have the option of making a reply that purports to justify non-compliance. I don't think "without reply" affects O'Mara's right to file a surrebuttal.

The order in this case is to show cause why Lester should not recuse.

I don't read anything (about the merits of the appeal) into the absence of a stay. No stay was requested, and O'Mara doesn't anticipate facing the (lower) court for a substantive ruling until months from now.

: You're Wrong About So Many Things (none / 0) (#27)
by boar d laze on Thu Aug 23, 2012 at 01:53:19 PM EST

"w/o Reply" means that the filings are complete after the prosecution files its Response. That is, the defense should not prepare a rebuttal (aka "Reply")to the Response. Of course the Court may change alter its order and request a Reply at any time before issuing it's ruling.
The absence of a "Stay" is significant; as all sorts of things may arise from day to day during pre-trial. By way of a current example, the defense has requested the court to quash, or alternatively modify, a prosecution subpoena.

justincaselawgic (none / 0) (#6)
by Jeralyn on Wed Aug 15, 2012 at 04:21:22 PM EST

thanks for the posting the statute, but I have to delete your comment because the url is too long. Long urls skew the site. You can use html or the link button at the top of the comment box to paste in your link.

I'll reprint your comment here:

From Justincaselawgic:
Rules for Appellate Procedure are located here:

Specifically, Rule 9.100(e) is cited in the writ and it states:

(e) Exception; Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal. When a petition for a writ of mandamus or prohibition seeks a writ directed to a judge or lower tribunal, the following procedures apply:
(1) Caption. The name of the judge or lower tribunal shall be omitted from the caption. The caption shall bear the name of the petitioner and other parties to the proceeding in the lower tribunal who are not petitioners shall be named in the caption as respondents.
(2) Parties. The judge or the lower tribunal is a formal party to the petition for mandamus or prohibition and must be named as such in the body of the petition (but not in the caption). The petition must be served on all parties, including any judge or lower tribunal who is a formal party to the petition.
(3) Response. The responsibility to respond to an order to show cause is that of the litigant opposing the relief requested in the petition. Unless otherwise specifically ordered, the judge or lower tribunal has no obligation to file a response. The judge or lower tribunal retains the discretion to file a separate response should the judge or lower tribunal choose to do so. The absence of a separate response by the judge or lower tribunal shall not be deemed to admit the allegations of the petition.

jeralyn (none / 0) (#7)
by LeaNder on Thu Aug 16, 2012 at 01:05:41 PM EST

I notice all my friend have left the comment section. I am pondering to do a correspondence course on translation with special attention on law as an interesting perspective into US society. Full disclosure as a German I have always been interested in the diverse racisms.

But till then can someone explain to me what institution in Florida has to decide over "the Lester case"? Besides, my pet theory is still that Kenneth Lester wants to get rid of the case, and that was in fact the reason that made him choose his words.

The problem I have is that Lester did not turn "prejudiced" for no reason. Even someone I respected before I found myself struggling with his ardently pro-George-Zimmerman-postion, in other words the idea that surely a 17 year old could well be trained to become a killer machine e.g. as a soldier, had this to say on matters Kenneth Lester had to decide on.

IMO the judge should find George Zimmerman in contempt of court and guilty of perjury. He should then fine him in the amount of the money he lied about, Then he should grant him bail on the same basis as previously.

So this is not true, according to Zimmerman and O'Mara?

Trayvon Martin, a person described by the very court that is to review that immunity argument as "an unarmed 17 year old juvenile".

Leander, (none / 0) (#10)
by justincaselawgic on Fri Aug 17, 2012 at 03:12:17 PM EST

To your first question about which institution will decide "the Lester case", I assume you mean the writ that O'Mara filed and it is answered in the OP by jeralyn. The Appellate Court will be deciding. I subsequently provided the Rules for Appellate Procedure which govern submitting the writ, the powers/jurisdiction of the Appellate and the rules for Response by the affected party (the Judge).

Your second question is harder to answer. A contempt of court charge generally carries either imprisonment or fine with it. The fine generally does not exceed $500 if there is no statutory provision. As for a perjury charge, that would need to come from the Prosecutor and there is nothing that Zimmerman has testified to that could be seen as perjurious. Not speaking up in court is not only not illegal, it is one's right here in the states. Following your friend's illogical statement, however, in Florida a fine for perjury will not exceed $10,000. As you can see, since the premise of the question is illogical, there is no real way to answer it.

Your last statement is confusing, so I'm not sure what your driving point is.


As for the Appellate Court... (none / 0) (#11)
by heidelja on Fri Aug 17, 2012 at 06:48:20 PM EST

... it is the 5th District Court of Appeal found here1. Where currently under "Court News" can be found links RE: "George Zimmerman vs. State Of Florida"

Understand further that any appellate ruling can be appealed to the Florida Supreme Court by either party. Such an eventual appeal might not be seen as farfetched, since the case law cited (that I have read) previous to the writ seems not to cover the possible interpretation of the situation and applicable legal twists at hand - one for recusing a judge in the interloctory manner being attempted for a second time. Lester by his order took the easier course to rule on the basis it was a first time.


Make that ... (none / 0) (#12)
by heidelja on Fri Aug 17, 2012 at 07:06:49 PM EST

12-3198 ORD-Writs show cause w/o reply


heidelja (none / 0) (#16)
by LeaNder on Sat Aug 18, 2012 at 06:40:41 AM EST

Thanks for the links, heidelja.

Will you allow me to tell you that most of your comments above feel strongly below the belt to me. But I do not think it is the overall content, it's the way you put it. I am not very prudish believe me, but a certain rhetorical use of sex makes me sick.

I am aware that Jeralyn brought up the subject of Lester's wife's job, nevertheless I find it hard to embrace the argument. I can see, how it could be an issue for a lawyer or defense, but ultimately it is a generalization. To make it a problem you have to push the case into her field of responsibility or jurisdiction, but apparently it is not hers. She might have access to the case files but hasn't Lester already? So maybe I do not quite understand the argument. And I am open to details I miss as a bloody foreign nitwit.

But I'll read the petition more carefully again.


As for reason Lester turning... (none / 0) (#18)
by heidelja on Sun Aug 19, 2012 at 09:12:53 AM EST

... "'prejudiced' for no reason" I think that one needs to deeply consider what likely transpired between Apr 20 and Apr 27. (I do not do so thoroughy now.) GZ's bond was set on Apr 20 and on (or by) Apr 27 his financial status was updated (corrected) to what in hindsight to many (per the judge's reasoning driven by the State insinuations) should have been told on Apr 20. On Apr 27 the State requested his bond be reset, but Lester declined wanting "more information." If Lester had simply reset GZ's bond on Apr 27, pretty much all that has transpired seen personally prejudicial to GZ would not have occurred. (I say this because the "facts" forming the basis for crime "news" in America are the "opinions" of "authorities" who voice and/or author the legal filings. If there is an opinion suggested that an "authority" has not uttered, it is often automatically seen as baseless, or even as one of defamation by anyone not wanting to pull back the covers! Never by the media serving as a law abiding puppet of the State would the words of an "authority" go seen to be so against the one charged!)

When the grandstanding "more information" did come to Lester on June 1, Lester did not have to revoke bond! After all, GZ had done nothing to violate the conditions of his release on bond. Lester chose to rule in the manner he did on June 1 can be seen paradoxically to his ruling on Apr 27.

Lester's manner to not recuse himself now is no less paradoxical to that of Recksiedler choosing to recuse herself for reason of husband-wife relationships. While your argument is good that "To make it a problem you have to push the case into her field of responsibility or jurisdiction, but apparently it is not hers" there remain strong professional connections influencing personal associations.

Does a judge whose lawyer husband working for a media legal analyst for the case at hand have more influence on the "field of responsibility"? I think he has considerably less so. In the case of Lester both are employed by the State and in the case of Recksiedler, wife and husband are employed by two entirely different entities. One spouse is strictly private and the other publicaly funded. OMG! There are two clear differences - 1) O'Mara chooses not to go there likely for professional reasons explained by 2) Reckseidler's situation can be made public without suggestions of defamation, character assassinnation or impropriety of a person in a State Attorney's office! As you can see ("2)") that which I pondered for Lester's reasons above, responded to by Yman, cannot possibly be!


interim response (none / 0) (#19)
by LeaNder on Sun Aug 19, 2012 at 11:50:15 AM EST

but Lester declined wanting "more information."

I am a bit confused by your first paragraph, I don't quite understand were citation ends and comment starts, and whom you cite. Google may be misleading in this case.

But that's not how I remember it. I remember it as Lester stating that he needed time to look into matters from the moment he learned about it. Correct me if my recollections are completely wrong.

I will return and look more closely into the questions raised by your response. Unfortunately I have been distracted by the latest Israel must attack Iran attacks scenarios which it it can't do, and which I trust can only mean the US should attack Iran, but I'll return to your comment, after I have completely digested it, remember, I am a blood foreigner.

Till my more thorough response, thanks for your answer.


the first passage I am not sure I understand (none / 0) (#20)
by LeaNder on Mon Aug 20, 2012 at 06:02:49 AM EST

(I say this because the "facts" forming the basis for crime "news" in America are the "opinions" of "authorities" who voice and/or author the legal filings. If there is an opinion suggested that an "authority" has not uttered, it is often automatically seen as baseless, or even as one of defamation by anyone not wanting to pull back the covers! Never by the media serving as a law abiding puppet of the State would the words of an "authority" go seen to be so against the one charged!)

what you stress here, are "facts", "news", the "opinions" of "authority/ies". This may be the first passage I am struggling with.

There is a basic news standard, based on CP Scott's famous 1921 sentence: Comment is free, but facts are sacred. Unfortunately rulings are facts, if we leave out the special suspicion and ultimately opinion Lester included. That would be a more difficult issue to discuss. Fact is: money was hidden from him. Why?

I happen to agree with you that Lester "put his head far above the parapet", with the parapet signaling the safe space, and that some of what he wrote may be considered opinion. Nevertheless, it also feels to me, that Kenneth Lester was prepared to rule justly before the famous 27th, and did rule fair. The prison activities of the couple Zimmerman surely irritated him in this context. And as far as I remember, he early on concentrated on what Zimmerman's wife knew, since Zimmerman himself wasn't questioned on the topic. One can of course argue ad nauseam, that Shellie did not know the exact sum at the time she was questioned, but one can also look at her latest financial activities and, I haven't checked, find out that she in fact did the latest transaction the night before the hearing. Her offer to ask her brother in law was a wise one, but ethically, not legally it does not completely leave her off the hook. Since she could have simply said, yesterday around 11 pm it was x dollars. In context, she also said, there was no money she knew off. I have the advantage to not having had to rule on matters, and Lester took quite a bit of time to do so.

What surfaces for me above is a general distrust in the powers that be. Something I may in fact share with you somehow. But, I do not understand what covers you want to see pulled back. Reminds me of the famous man behind the curtain imagery, by the way. Which I am basically not very attracted to in spite of the fact that I am aware many, many people in the world have much more power than I have, and may well have more chances to hide specific statutory violations than I do. But I also don't believe that it is always only the powerful that commit crimes.

As an aside, have you ever thought about the influence of PR on journalism, and what exactly that means concerning the handling of facts?


: may: (none / 0) (#21)
by LeaNder on Mon Aug 20, 2012 at 06:04:33 AM EST

I think I prefer to add may here: if we leave out the special suspicion and ultimately opinion Lester may have included.

Sorry about that and thanks. (none / 0) (#9)
by justincaselawgic on Fri Aug 17, 2012 at 02:37:00 PM EST

I'll remember that for the future.


Leander, I think I understand (none / 0) (#23)
by justincaselawgic on Mon Aug 20, 2012 at 10:29:50 AM EST

your driving point regarding the description of Martin by the court. I don't see anything prejudicial about the description of Martin by the court. I do think either O'Mara or Zimmerman or both do consider it prejudicial. I think that is the weakest argument in the writ and I wouldn't have included it.

: I wish (none / 0) (#24)
by LeaNder on Tue Aug 21, 2012 at 09:24:51 AM EST

I wish there was no "I think" I understand, but instead a different narrative that gave me a new perspective, or convincing way to look on matters.
Besides, I have to admit I just pondered just-in-case-law-gic. Now what would gic be? which could be justin-case-law-gic, anyway, OKay? I'll try to keep that in the back of my mind or this? Or case law as, for the nitwit, some consent matter, provides something to remember too; the same over and over again like like Charley Caplin on the assembly line? A consent that my well bury initial meaning.
So only Lester has the problem of not being completely just, I m just realizing:
And I am truly pondering about this. What does left mean in the US? Lefties have the same mores righties have? The lefts path to career are the democrats, the conservatives the GOP? Both like to gossip? Strictly similar over here. I have to look closer at the development of the Lester-and-his-wife-theme and it's echoes, but I do not have much time now.
I am thankful, I am neither a judge nor a lawyer, by the way, although law is an interesting topic. It's the physics of human interaction.
It was a pleasure to meet you ... see first paragraph.

w/o Reply (none / 0) (#26)
by boar d laze on Wed Aug 22, 2012 at 06:19:39 PM EST

As I understand it, the "w/o Reply" part of the order on the docket is a signal to the defense.

The prosecution (and judge if he elects to Respond) must serve their Response(s) on the defense on or before the same date they file with the Court.

By saying "w/o Reply" on the docket the Court proactively lets the defense know that they don't have to waste time and money dealing with the Response.

Within the context of knowing zip about Florida appellate procedure, I think it's a sign the Court has heard all they want from petitioner, and developed an impression which they feel is unlikely to be disturbed.

comments speculating on (none / 0) (#28)
by Jeralyn on Mon Aug 27, 2012 at 08:09:52 PM EST

malfeasance between the Judge and his wife have been deleted.