There are two schools of thought now, since the press conference held by George Zimmerman’s attorney, Mark O’Mara. In it, he announced that a writ of prohibition will be filed at the appellate level against Judge Lester. This will stop everything in its tracks, including Zimmerman’s desire to leave Seminole County.
The judge can do one of two things. He can acquiesce by stepping down, washing his hands of the mess, or he can stick to his guns and fight it like he said he would be willing to do in his order denying the recusal motion. Personally, I would fight it, but my reasons are selfish. Make Zimmerman and O’Mara squirm. Delay this mess and keep Zimmerman bottled up in Seminole County — precisely where he doesn’t want to be. After all, O’Mara did say that his client “really has to live as a hermit, unfortunately.”
He said the poor boy is living in fear and running out of money. Great! Add it all up and it’s nowhere near the split second of fear Trayvon Martin felt while staring down the barrel of a gun.
I’m going to go over the writ with a fine-tooth comb when it is published. I will add my findings here or on a new post, but just remember one thing that O’Mara acknowledged when asked. He said that he thinks Lester is a fair judge. That in response when questioned about retribution if he’s denied the writ and remains on the bench. In my opinion, it contradicts the basis of the writ. Which one is he, Mr. O’Mara? Fair or unfair? You speak with forked tongue, methinks.
This is what I wrote on my August 5 post. It explains the writ of prohibition and what happens from this point on:
THE WRIT OF PROHIBITION
According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.
While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”
In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…
FLORIDA SUPREME COURT RULE 9.310.
Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:
RULE 9.310. STAY PENDING REVIEW
(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.
(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.
(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.
What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?
That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.
One final thought on this story… Mr. O’Mara said that we are in unity that George Zimmerman’s nose was broken. NO SIR, IT WAS NOT! SHOW ME THE PROOF!