On August 1, Judge Kenneth R. Lester, Jr. of the 18th Circuit Court issued his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, citing the defense motion requesting his recusal as legally insufficient. That was no surprise to me, but it was to George Zimmerman. His attorney, Mark O’Mara, quickly told WKMG’s Tony Pipitone that, “We presented the motion. I think the motion was sufficient on its face. He made his decision. We’re going to review it and make a determination about whether or not to appeal it or accept it.”
I’m not surprised by O’Mara’s reaction, either, but what does it entail now? I mean, where can Zimmerman’s defense go from here? They can appeal it. Or should I say may? They may certainly appeal but it’s not all that simple, as O’Mara made clear in his second statement to Pipitone about what could happen next. The case, he said, “stays in limbo, unfortunately, for a while. We will be seeking a stay of all other matters pending until the appellate court decides, if we decide to appeal.”
The key word in the final sentence is seeking, as in “seeking a stay.” What that means is that it’s not attached to an appeal. It’s a separate request. While the appeal goes to the Florida Fifth District Court of Appeal, a stay on all other matters, quite literally, stays with the circuit court.
Here’s the first thing I thought of after learning of the judge’s decision and O’Mara’s reaction. What happens to Zimmerman’s GPS ankle monitor? What about the court order restricting him to Seminole County? I know he’s been complaining about it, and that his defense is prepared to file a motion to lift the restriction. If he files an appeal, doesn’t it put everything on hold? Well, no, but that doesn’t mean he and his team don’t have a lot of other complex things to think about.
There’s the issue of money, for instance. Filing appeals isn’t free. Just consider the time it takes to file paperwork at $400 per hour, not to mention other continuing work on the case. The appeal itself will take a long time to be heard. Where is Zimmerman’s money going to come from after his parents’ Website stops pumping oil? It will not last forever. The whole mess becomes a perplexing quandary. Does he bite the bullet and stick with Judge Lester, or does he go for the appeal with money he doesn’t really have?
WILL ZIMMERMAN DOUBLE DOWN?
The idiomatic verb form of double down means to double or significantly increase a risk, investment, or other commitment. Is Zimmerman willing to risk everything, which includes an impending money problem, in order to have a judge removed from his case? While waiting an indefinite amount of time for any other relief? Remember, filing an appeal does not mean an automatic win. The appellate court might just turn him down. Where would he go from there?
In the meantime, the defense still has the option to file an indigency motion if the well runs dry, but that means getting the JAC involved and O’Mara can kiss his $400 per hour good bye. You see, while the motion to appeal is at the appellate level, the show must go on, and Judge Lester would proceed as usual. So, while things seem like they are beyond reach for the defense, they really aren’t, but there are a number of catches. There’s the part about seeking a stay. Plus, by allowing this judge to decide motions, doesn’t it just confound the whole thing? Why let the same judge rule on anything if you want him off the bench? Right now! If O’Mara files an appeal, he’s pushed himself into a corner where he’s pretty much forced to file a stay. That’s a given, right? So what’s he supposed to do?
THE GOOD OLD INTERLOCUTORY ORDER
The Free Dictionary defines an interlocutory order as:
“Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.”
This could include the issue over the judge, but I doubt it, because, even though these types of actions are taken prior to trial, which fits in this case, and must be answered by an appellate court; there is a reluctance to make interlocutory orders unless the circumstances surrounding a case are serious enough to warrant such action. And they are restricted by courts because they don’t want to be tied up by piecemeal litigation. The clincher is that the lower court usually enters a final judgement, meaning a verdict, before it’s appealed.
If not that, then what?
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:
(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.
Yes, there’s been lots to ponder since Friday. I wonder what George thinks God’s plan is.