I can understand why George Zimmerman’s defense attorneys, Mark O’Mara and Donald West, filed a motion for Judge Kenneth Lester, Jr. to step down. It makes sense. For one thing, had they not, it wouldn’t help pave the way for a retrial later on if Zimmerman is convicted. I’m sure he requested it, too, and no matter what, the attorneys are there to work for their client. Besides, George is used to getting what he wants, he believes this is a frivolous case, and he wants a new judge. So there. Only it doesn’t work that way, and there are some rather good and strong reasons why.
Let me first mention a few “for instances” that were mentioned in the actual motion filed by his attorneys, the VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, which can be viewed HERE, directly from the gzlegal.com Website.
On page 5, the motion says:
“Generally a statement by the judge that he feels a party has lied in a case indicates bias against the party.”
Now hold on a minute. Didn’t another judge once say something about the truth and Miss Anthony are strangers? That had nothing to do with his recusal request, did it? No, it didn’t, and as a matter of fact, look at it this way. If all I had to do was lie to a judge to get him/her disqualified for bias, I’d lie to every judge who comes rolling down the pike, and I’d never go to trial. They’d run out of judges long before the statute of limitation runs out. Like a lot of defendants, lie your way out of it.
Let’s move on to page 7:
“The Court states that the money used to post bail ‘… is not money which the Defendant has earned through his hard work and savings, so forfeiting it for failing to appear would not impact the Defendant’s life in the same manner as a similarly-situated defendant who puts his house up for collateral to obtain bond.’ Page 7, (f). However, the Court fails to note that his family’s home would thereby be forfeited if he failed to appear. Further, the Court ignores the reality that those funds are the only funds available to Mr. Zimmerman to survive, to eat, to pay for utilities and to provide his family shelter.”
Here are the problems I see. George Zimmerman not only lied to the court, he lied to his parents, who took out a second mortgage on their house to secure the bond money. What a weasel. He lied to his attorneys, too. As for food and shelter, it was clearly spelled out that the money was to be used for his defense, not to pay off credit card bills and to buy expensive guns. Aside from that, it’s a lousy excuse and a cheap argument.
From page 9:
“The Court departed from its role as an impartial, objective minister of justice when it stated on two occasions on its Order that in the Court’s personal opinion there is probable cause to believe that the Defendant committed a violation of Florida Statute 903.035(3), a third degree felony punishable by five years in prison. This is tantamount to instructing the State that Mr. Zimmerman should be prosecuted for this offense. Comments like these are taken seriously by the Defendant, and further convinces him that he cannot get a fair trial from this Court. The Court made a similar comment about his wife at the June 1, 2012 bond revocation hearing when it said…”
We all know what it said, and Shellie Zimmerman was duly charged. The problem here is that the motion blames the judge and not his client. Had his client and wife just told the truth to begin with, this would not be an issue. It’s a situation that is being passed off on the judge. The fact remains that the Zimmermans lied and the judge pointed it out, including what the possible charges and penalties might be. Who is to blame for that? Was the judge merely telling the truth? Poor George says he takes the judge’s comments seriously. Well, shiver in me boots. What about the judge? He took the Zimmermans’ comments seriously, too, but according to the Book of George, he wasn’t supposed to do that? Only George is allowed? Gimme a break. I could go on and on, but…
George is responsible for his own mess. Based on the recusal motion, I see nothing that warrants the judge to step down, but that’s only part of the reason why this judge will refuse to recuse.
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I think that most of you are aware of a role I played in a motion filed in another case where the presiding judge was asked to step down. I did an awful lot of legal studying back then, and in March of 2011, Casey Anthony’s defense filed a motion, the MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS, that had this one glaring statement:
c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.
Holy Foghorn Leghorn! Only thing is, under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.
Since this is the route O’Mara and West are taking, they should be familiar with F.S. §38.10, which states:
Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.
But please pay particular attention to this part:
However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.
Remember the first judge? Jessica Recksiedler? She was asked to recuse herself and that’s how Judge Lester came to the bench.
After Judge Recksiedler willfully stepped down, and she could have easily remained on the bench, Judge Lester cannot be disqualified because of alleged prejudice solely based on what Zimmerman claims. The only way it would work is if Lester admits he is biased in favor of the prosecution. Even then, his admission would merely be recorded in the court minutes and the trial would proceed on schedule. Of course, this would be reviewed after a conviction (if there is one) and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different.
One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as O’Mara and West are claiming in their motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein.) You just have to prove it.
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Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake.
Back to good old Rule 2.160…
Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!
When Judge Recksiedler disqualified herself, Judge Lester cannot be disqualified on any successive motions filed by Zimmerman’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Lester will be allowed to toss out any new dismissal motions filed on Zimmerman’s behalf.