Appeal court removes judge in Zimmerman case
The defense had asked for the trial judge to be removed, saying he had shown bias against the neighborhood watch volunteer who killed Trayon Martin during a scuffle.
08/29/2012 5:00 AM
09/08/2014 6:02 PM
George Zimmerman’s attorneys got a second judge kicked off his murder trial Wednesday, when the Fifth District Court of Appeal ordered the sitting jurist to step down from the controversial case.
In a 2-1 ruling that the appellate court acknowledged was a “close call,” Seminole County Circuit Judge Kenneth Lester was ordered to recuse himself and ask the chief circuit judge to name a replacement.
The decision came after Zimmerman’s attorney, Mark O’Mara, accused Lester of being so biased against his client that the former neighborhood watch volunteer had lost faith in the court.
In July, Lester wrote a scathing bond ruling, in which he said the defendant had manipulated the court and suggested that he was guilty of other crimes. O’Mara took particular umbrage at comments the judge made suggesting that he could some day hold Zimmerman in contempt of court.
Later, Lester ordered the release of nearly 150 taped jailhouse calls, even though he had suggested in court that only phone calls which prosecutors had transcribed should be made public.
The judge also decided to release a statement by a woman who came forward to say Zimmerman touched her sexually when they were both children. Lester released the statement, even though both the defense and prosecutors agreed that it was highly prejudicial, O’Mara said.
In the opinion posted on the court website late Wednesday, the appeal judges said the weight of all the defense complaints together helped sway the Daytona Beach appellate court.
“Although many of the allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency,” the majority of the judges wrote.
One judge disagreed and said Lester did not cross the line in his decisions.
Zimmerman faces one count of second-degree murder for the Feb. 26 killing of Miami Gardens teenager Trayvon Martin.
Zimmerman said he found the teen suspicious in light of a rash of burglaries in his Central Florida townhouse complex, and got out of his car to see where he went. Minutes later they tussled on the grass, and Zimmerman shot Trayvon once in the chest.
Zimmerman told police that Trayvon punched him in the face hard enough to break his nose and banged his head on the concrete. He is claiming self defense.
The Sanford Police department’s decision not to arrest Zimmerman triggered protests nationwide. When the case finally went to court six weeks later, the defense attorney asked the initial trial judge to step down, because her husband worked for the same law firm as Mark NeJame, a CNN legal analyst Zimmerman consulted early in the case.
Judge Jennifer Recksiedler agreed to recuse herself.
The next judge in the rotation, Judge John D. Galluzzo, told the court that he had his own conflict of interest: a personal and business relationship with the defense attorney.
Lester came up next.
He lasted just three months before O’Mara asked him to step down, too.
The request came after Zimmerman’s wife got caught lying in a bond hearing about how much money the couple had raised online.
Prosecutors provided audio tapes of Zimmerman and his wife talking in detail about the deluge of donations that had arrived via PayPal — and how they planned to hide it.
Lester revoked Zimmerman’s bond and, after a hearing, allowed him back out on a $1 million bond.
His $1 million bond order included what the Florida Attorney General’s Office called a “tongue-lashing.” A passport plus a secret stash of money led Lester to say Zimmerman had been prepared to run.
In an eight-page decision where he accused Zimmerman of “flouting” the system, the judge warned that Zimmerman could be tried for other crimes and said he could be held in contempt of court.
“The trial court departed from its role as an impartial neutral arbiter of justice” O’Mara wrote. “Comments like these are taken seriously by the defendant and further convince him that he cannot get a fair trial from the trial court.”
By law, O’Mara had to show sufficient legal grounds to show Zimmerman feared the judge’s bias.
In a response on behalf of the prosecution, Assistant Attorney General Pamela J. Koller said the judge’s comments did not meet the legal threshold.
“This does not require disqualification of the trial judge,” Koller wrote. “ None of the comments by the trial court rise to the level of being legally sufficient to establish an objectively reasonable fear by Petitioner that he will not receive a fair trial by the judge. Instead, the judge was simply giving Petitioner a well deserved tongue lashing for allowing others to mislead the court about his passport and his financial situation.”
Proof that Lester wasn’t biased, Koller argued: He let Zimmerman out of jail, and he’s out free now.
O’Mara declined to comment on the appellate decision Wednesday, saying only that he expects a new judge to be named soon.
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