Posted on 07/13/2012 1:21:19 PM PDT by abb
SANFORD --
George Zimmerman's attorneys want to disqualify the judge who is presiding over his second-degree murder trial.
The motion filed Friday says Zimmerman "has a reasonable fear that he cannot get a fair trial or a fair stand your ground hearing by this court."
The motion specifically mentions the new bail Judge Kenneth Lester set for George Zimmerman earlier this month. The motion says Lester made disparaging remarks about Zimmerman's character, says he should be "prosecuted for additional crimes," and is holding the threat of future contempt proceedings over Zimmerman's head.
The judge revoked Zimmerman's first $150,000 bond, and had him rearrested after he allegedly misled the court as to how much money he had available in a fund for his defense.
The motion also says the court is not weighing any evidence of Zimmerman's innocence in the case when determining bond, other than to say "the only issue is the viability of the defendant's self-defense/Stand Your Ground claim" but they also accuse the judge of not discussing that issue either.
The motion also says:
"The court departed from its role as an impartial, objective minister of justice when it stated on two occasions in 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."
George Zimmerman is on trial for second-degree murder in the death of Trayvon Martin last February.
bfl
If GZ fails to convince a judge at the Dennis Hearing that he more than likely acted in self-defense, his trial strategy will be revealed to the prosecution. Since it is an affirmative defense, he may also have to take the stand at the hearing, always a risky gambit; but I'm not sure on that point. Cboldt should have more info on that.
And since he has statements and videos to present as evidence, would he really have to take the stand in a SYG hearing???
Well, did any of us figure that MOM was suckering in Judge Lester to show Lester's bias right out in the open? I certainly don't think Lester saw it coming. We all thought that that MOM was a wuss at the last hearing, at least I did. J I think he may have a lot more up his sleeve than we know.
As I said, I don't know if he would have to take the stand in a Dennis hearing
O'Mara's 'motion to suppress' witness statements #9 was for 30 days. And see Sunshine Laws Fl.
“he gets this Motion today, look at what Lester does. He throws another temper tantrum.”
And apparently, FL law prohibits him from making adverse rulings until the bias complaint is settled.
When you as a judge receive from a defendant a Motion to Disqualify, you are supposed to cease further actions in the trial until the matter is resolved. Lester chose not to follow the law and wouldn't recognize a "serious and imminent threat to the administration of justice" if it did a dance on his lap.
I don't think there is a requirement for Zimmerman to take the stand in order to produce evidence. He can produce, within the Motion to Dismiss on account of 776.032 Immunity, statements of fact that he swears to be true. This is effectively the same as taking the stand, but not being subjected to cross examination.
The general rule is that a witness cannot use affidavits in lieu of taking the stand, with the objective of that general rule being to afford the fact finder an opportunity to view the witness's demeanor during questioning, and submitting the witness to cross examination.
I don't have the impression that Zimmerman is a good witness on his own behalf. He has at least minor inconsistencies among his several tellings of events, and one more telling is bound to introduce yet another set of inconsistencies. The state will be able to generate all sorts of smoke from that. Ultimately, I don't think that (not good witness, lots of smoke generated from defendant's inconsistencies) would affect a jury outcome.
A decision adverse to Zimmerman can be appealed. You can see cites to handful of appellate cases on disqualification, in O'Mara's motion. The fact that the motion was filed, at all, puts the court under a cloud of bias and partiality.
Nejame and Lester and O'Mara are all friends and as such I think Lester knew he could walk all over O'Mara without a peep from him. I think that O'Mara realized that he was the laughing stock around the courthouse, agreeing with everything Lester said and did, and leaving his client out there to hang.
He finally found his backbone, or perhaps he read the blogs and heard what everyone was saying about his incompetence, or perhaps the Zimmerman family told him to defend George or resign. Anyway he finally after three months did something that showed guts. Let's hope he follows through.
Remember that it was O'Mara who got Reckseidler to step aside, leaving George with one less disqualify the judge card. So this just might an effort in futility which has been MoM's MO all along. That's hardly a strategy.
That's good!! If I were his lawyer at an SYG hearing, I would just submit his sworn statements and leave it at that. He has already said more than he had to and those statements say enough to acquit him.
BTW I read your stuff on TL and enjoy them.
1 Guest.
I don't think he was doing that. O'Mara's a pretty good advocate, but he's not conniving like that. The putting on of evidence showing self defense was just what he said to the judge, a reaction to the judge's statement that the state's case was strong. O'Mara figures the judge is going by the book, and since there is scant self defense evidence in the record (introduced past discovery), he'll introduce it, and the judge will find that the defense is strong, too.
-- I certainly don't think Lester saw it coming. --
I think O'Mara was the one caught by surprise by the tone and tenor of the July 5 Order. I don't have a transcript, but I recall O'Mara saying, at the June 29 hearing, that he hadn't been (like as of June 1) all that familiar with Arthur (and I assume, if that's true, he also didn't know the Paul case about the necessary findings for denial of bail). Taking him at his word on that, he's covering the base by introducing evidence, and now, in the motion preceding the June 29 bond hearing, he's also telling Lester that the Paul case controls denial of bond.
I would not be surprised if O'Mara came to an understanding sometime before June 29, but after June 1, that his client was being held unlawfully. But rather than raise a stink about it by filing a habeas petition with an appellate court, he'd maintain deference to Lester, and undertake a good faith effort to present the controlling law along with evidence and argument that his client could not be denied bond under the Paul case.
Parts of the July 5 Order were exactly as O'Mara described, gratuitous conclusions, reached without full consideration of possible evidence. Zimmerman was planning to flee? Zimmerman had no reasonable basis to conclude he wasn't going to be charged? Zimmerman has to feel that the judge isn't interested in getting to the truth, and that the judge has a blind eye for the defense evidence.
Then the judge all but tells the state that Zimmerman should be charged with lying too, under the bond statute, and if that doesn't happen (if the prosecutor doesn't press the criminal charge) then Lester will exercise his contempt powers.
If Zimmerman expresses that he doesn't think he's going to get fair treatment from the court, as a presumed innocent defendant under the overwhelming weight of the state, it's an issue, and O'Mara has to address it.
The filing of the Motion to Disqualify is supposed to act as a dead stop on all substantive activities, until the Disqualification issue is settled. That is, not jest a stop to adverse rulings, but ANY rulings.
The Order denying O'Mara's motion relating to publication of W9's second statement and 140+ jailhouse calls was filed on July 12th, and did NOT come after O'Mara filed the Motion for Disqualification.
I think the judge is intentionally trying to be removed from this case!
Most of his actions have been outrageous, and grounds for dismissal if not worse.
Reckseidler was disqualified on (d)(2) basis, conflict of interest. There is an unlimited number of these available to both sides in the dispute. Zimmerman used two, sort of by accident, as the court's next pick was a judge who knows O'Mara socially (O'Mara is godfather to the judge's son).
The motion to disqualify Lester is on a (d)(1) basis, the judge is prejudiced, biased, whatever you want to call it. Each side gets one of these "for free," and after that, subsequent (d)(1) disqualifications happen only if the judge agrees he is biased.
So then Lester's disqualification should be Zimmerman's slam dunk free one.,
MMA style. is “Mixed Martial Arts”
Used in the Ultimate Fighting Championships where one sits on top of the other firing blows to the persons face and upper torso.
I'd do the same. Make sure the sworn facts are complete enough to provide a solid narrative of events, while "admitting" some uncertainty due to memory or confusion (like exactly the words exchanged, exactly how the struggle moved); and put eyewitnesses on the stand to substantiate Zimmerman's sworn narrative. I'd also submit the forensic evidence, all of which supports Zimmerman's narrative.
I'd have Zimmerman prepared to take the stand, depending on what the prosecution elicits on cross examination, and on what the prosecution gets into evidence by its own witnesses.
It would be a judgment call to put Zimmerman on the stand. I would prepare him for the possibility, and I think Zimmerman wants to tell his story in front of a judge that he believes is fair.
The state's evidence is weak, and that's charitable. I think Sybrina and the cousin are lying their butts off, and they know it. I wouldn't feel bad at all about giving Sybrina the third degree, if she takes the stand. I would be gentle with DeeDee.
Yes. Lester is limited in the terms of rebuttal. He cannot attack the factual basis, and has to rule simply whether the motion is legally sufficient, or not. If it is, he MUST disqualify himself.
If he doesn't disqualify himself, O'Mara will certainly appeal the ruling, and then Lester will get to be wrong for not disqualifying himself, and also disqualified - for bias.
If the next judge is as much of a biased simpleton as Lester, O'Mara's pretty much stuck with the judge, but can preserve errors for appeal.
The trial judge doesn't have as much "free" rope as he thinks he has. Lots of what trial judges get away with in on the basis of knowing the offended party won't appeal.
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