A Full Nelson?

On November 6 of this year, Americans who are registered to vote will have the opportunity to elect the next president of the United States. This may or may not include hundreds of thousands of illegal aliens and half the roster of dead people in the city of Chicago, but that has nothing to do with the context of this post.

If President Barack Obama prevails, he will have another four years in the White House. If Mitt Romney wins, he will be sworn in as the 45th president on January 20, 2013 — Inauguration Day. How this election fits in with the topic du jour is quite simple. There will be a smooth transition between the outgoing and incoming members of the executive branch. It’s the same as it’s almost always been since the inception of this great country. Every four or eight years, we witness this peaceful transference of power, and the country never skips a beat.

It’s the same with the George Zimmerman case. In a 2-1 vote, the Fifth District Court of Appeal rendered its decision regarding Judge Kenneth R. Lester, Jr. 

PER CURIAM.

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition…[.] Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

PETITION GRANTED.

While some may gloat over the decision to remove Lester from this case, I most certainly do not. I feel that the judge scolded Zimmerman and nothing more. I am convinced that he would have soldiered on, putting that reprimand behind him. He would heve continued to rule judiciously and fairly, but that’s old news now; what’s done is done. There’s no point in arguing over the how and why of it. While we had our discussions and disagreements over the motion to recuse and subsequent writ of prohibition, today, it is nothing more than water under the bridge, and it’s time to move on.

I am convinced that, just like our election process, there will be a very smooth transition from Judge Lester to the person Chief Judge Alan A. Dickey names as his successor. Who will it be…?

First of all, let me explain what I know about the inner workings of a courthouse, having some experience in it. 

At the very beginning of the Casey Anthony case, Ninth Circuit court Chief Judge Belvin Perry, Jr. asked several judges if they’d be willing to take the case. One by one, they said their dockets were too full. Keep in mind that these were judges working the criminal division, not civil. Judges routinely rotate between criminal and civil every two years or so. No one wanted the case. Perry then turned to someone else. He made a wise choice when he asked Judge Stan Strickland to take the case. You are one of my best judges and, most certainly, extremely qualified to handle it. Strickland agreed, despite having recently moved from criminal to civil. It’s important to note that Strickland continued to hear civil cases, too. Judges, like criminal defense attorneys and prosecutors, are not narrow-minded or restricted. Like servers in a restaurant, they can wait on more than one customer at a time. Trust me, to Judge Lester, the Zimmerman case was just a job and nothing more. What happened to him is part of the process.

When the first judge in the Casey Anthony case was asked to step down, he did so without argument. Why he did it is of no relevance in the Zimmerman case. What matters now is, where do we go from here? When Judge Strickland removed himself from the bench, what happened next was somewhat revealing and it will be similar, if not identical, to the type situation that Judge Dickey is faced with today.

[Since this writing, Judge Debra Nelson has been named to replace Judge Lester.]

During the Anthony mess, media pundits were reporting that, generally, chief judges take on highly problematic cases. Judge Belvin Perry certainly did end up doing just that, but in the interim, it was far from as simplistic as the news actually reported. Behind the scenes, Perry was asking his Orange County circuit court judges to take over the case. I will never reveal how I know that, but it came from more than two sources — all at the top. One-by-one, they turned him down. Do you see the caseload I’m sitting on? I’ve got over 3,000 cases on my docket right now, was the common mantra. Ultimately, Perry was left with no choice. It was, after all, a most problematic case and, reluctantly, he decided to take the helm. The rest, they say, is history.

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In one of his recorded phone calls from jail, Zimmerman discussed what judge he wanted with his wife, Shellie. This was just as Mark O’Mara signed on to defend him, so it was an early conversation. Zimmerman hoped to get retired judge O.H. Eaton. Eaton has a sterling reputation as a fair judge, levelheaded and extremely knowledgeable in law. What Zimmerman knew about him then is a mystery, but even I was aware of it.

He ain’t gonna end up with Judge Eaton. And I’ll tell you why I think that. Eaton is a retired judge. That’s not to say he’s too old. It has nothing to do with that. Retired judges are not salaried. Retired judges are freelancers. They make a lot more $ per hour than sitting judges. This trial is at least a year away. Would the taxpayers of the 18th District, particularly voters in Seminole County, agree to that kind of arrangement? Granted, you couldn’t end up with a better judge, but would he be willing to take on the task if asked? He doesn’t need it. He’s the kind of retired judge who listens to cases to take the burden off other judges, but they are not major cases like this one. If Dickey runs out of judges in Seminole County, better yet that he would discuss this matter with some of his active judges in Brevard County before handing it over to someone outside of his circuit. Technically, Eaton is no longer active.

One of the names being bandied about is Seminole Circuit Judge Debra S. Nelson. She is every bit as qualified as Judge Lester to sit in judgement of Zimmerman. As a matter of fact, she is most deserving because she is also a no-nonsense judge who was appointed to the 18th Judicial Circuit in 1999 by then-governor Jeb Bush.

In 2007, Judge Nelson presided over a rape case. The accused male, then 41, was eventually convicted of dragging a 10-year-old girl into the woods, choking and raping her. It might be interesting to note that the perpetrator, Antonio Rosales, was in the United States illegally. Also, during the trial, he confessed to murdering a woman in Tucson, Arizona.

While his trial was under way, he went berserk in the courtroom:

His defense attorney, Tim Caudill, moved for a mistrial. He claimed that the outburst tainted the jury. Judge Nelson rejected that, and upon sentencing, she did something unusual. Let me preface this first. Because of the girl’s age, in rape convictions, the charge carries a mandatory life sentence. Judge Nelson decided to take it two steps further. She added two additional life sentences, but she never gave a reason why. To this day, the sentence stands. (See also: Orlando-area jury convicts illegal immigrant of 2003 child rape)

What’s most interesting to me is that Judge Nelson has a reputation for setting harsh sentences. In George Zimmerman’s case, he’s facing a mandatory 25-years to life in prison. That’s because of the 10-20-life law enacted by Governor Jeb Bush in 1998. It’s sometimes referred to as “Use a gun and you’re done” law. According to Florida’s 10-20-life statute, anyone who pulls a gun during a crime receives:

• Felon in possession of a gun - mandatory minimum 3 year prison sentence
• Brandishing a gun in the commission of a crime - mandatory minimum 10 year sentence
• Discharging a gun in the commission of a crime - mandatory minimum 20 year sentence
• Injuring or killing another person in the commission of a crime, by discharging a firearm - 25 years to life in state prison

Just ask Marissa Alexander, a young Jacksonville mother who was convicted of three counts of aggravated assault and sentenced to 20-years for firing a warning shot into a wall during an argument with her husband. She lost her Stand Your Ground motion and she had, what appears on the surface, to be more of an excuse for pulling the trigger than Zimmerman will ever be able to conjure up. Incidentally, the prosecutor during that case was none other than Angela Corey. She said that Alexander was angry and reckless the night of the shooting, not fearful of her life. She will bring the same argument into court when Zimmerman files his immunity motion. Was he more angry or afraid? If in fear, was is objective or subjective?

Judge Lester ruled judiciously and so will his successor. Whoever Zimmerman ends up with, that’s it. There will be no more musical benches, and who he gets will not be singing anything in his ears. He may be laughing today, but his silly games are now over.

Just for your information, In 2012, Judge Lester was deemed the best judge in Seminole County (in all categories) by his peers of criminal defense attorneys and prosecutors. So was another judge in Orange County back in the day. Oh well. If Judge Dickey decides to take the case, it’s not going to be any easier than Nelson or anyone else. Judges are not amused by the antics of George Zimmerman. Of course, that’s my opinion, but I am allowed to be judgmental… or let me say, I am allowed to say so. So will the next judge. Zimmerman is plum out of dismissal motions.

Click to enlarge image

ORDER GRANTING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY JUDGE

This article was written prior to the court’s decision regarding Judge Debra Nelson.

Gun Power

There’s been plenty of talk around the blogs and forums of late about working out a plea deal. You know, why not let George Zimmerman plead guilty to a reduced charge of manslaughter and get it over with? It would save the state of Florida a lot of money, and that’s what this was all about to begin with, right? Well, yes, it would save money but, no, it was not what the state had in mind at all. Well, maybe there’s one major detail, which I’ll explain later.

To begin with, I now agree with what former lead investigator Chris Serino said about the manslaughter charge. He actually knew what he was talking about, but before any of you throw racial darts my way, or missiles of any kind for any reason, you’d better keep an open mind and read the entire article or you’ll be spending some time left out in the cold during one of the most brutal summers on record.

Yeah, George, take the plea!

No, don’t!

Any way you look at it, if he is convicted of second-degree murder, it goes without saying that it would be a felony conviction. But what about manslaughter? Would it be a felony or a misdemeanor if he’s convicted of that instead? Murder is a piece of cake to explain. It means that malice aforethought must be present, whereas in manslaughter, it’s absent. Absence of malice. OK, that’s easy enough to grasp, but what makes it a misdemeanor or felony?

Involuntary manslaughter means causing the death of another person without intent. Generally speaking, it’s caused by an improper use of reasonable care while carrying out a lawful act, or while in the commission of an unlawful act not amounting to a felony. Let’s say drag racing with your car that results in a homicide. You took an unreasonable and high-degree of risk and that’s considered criminally negligent manslaughter. On the other hand, let’s say you’re chopping down a tree and accidentally hit someone with the ax — killing him — there’s nothing criminal about it. In many states, depending on the degree of involuntary manslaughter, it could be a misdemeanor or a felony.

In the case of voluntary manslaughter, we’re talking about an intentional killing that’s accompanied by added circumstances that mitigate the killing, not excuse it. In its most common form, it occurs when a person is provoked to commit the homicide. This is felony manslaughter, and it goes to the very heart of the Trayvon Martin shooting death, whether it’s considered manslaughter or second-degree murder. Either way, if George Zimmerman is convicted, it will be a felony conviction. Interestingly, the Orlando Sentinel reported that the paperwork originally sent to prosecutors stated that there was probable cause to charge Zimmerman with manslaughter. The Sentinel article went on to say that it “was signed by lead Investigator Chris Serino and his boss, then-Sgt. Randy Smith, but it was the department’s official position and had the support of [former Sanford police Chief Bill Lee Jr.] said Capt. Bob O’Connor, who oversees the department’s major-crimes division and also was part of the investigation.”

Well, what’s all this hubbub about manslaughter or murder? Why is the public split on it? I mean those in the Martin camp. You see, it really doesn’t matter and that’s why some attorneys believe the state overcharged. Of course, that major detail I said I’d explain later could be as simple as getting him to plead to something — PLEAD DOWN — but it’s not. It can’t be.

You see, back in the late 1990s, George Bush’s younger brother, Jeb, was governor of the great state of Florida. He pushed through a law, Florida Statutes, Section 775.087 (2)-(4), that became effective on July 1, 1999. What was it, you ask, that could have come from a conservative, gun-respecting, NRA-allied Republican; the same Jeb Bush who signed SB 436, better known as “Stand Your Ground” into law in 2005?

Why… the legislation enacted his initiative providing mandatory sentences for felony convictions of crimes in which a gun was used. Plain and simple.

For pulling a gun during a crime, a mandatory minimum sentence of 10 years is imposed. For certain felony crimes or attempted felonies, the 10 year mandatory sentence is authorized if the criminal possessed a gun (or destructive device). For firing the gun during a crime the mandatory minimum sentence is 20 years. For injuring or killing a victim by firing the gun during a crime, a mandatory minimum sentence from 25 years to life in prison is authorized. (See: Mandatory Sentences Under the 10-20-Life Law and Experts: Florida’s ‘10-20-Life’ empowers prosecutors but handcuffs judges, juries, defense attorneys)

So you see, forget about whether it’s second-degree murder or felony manslaughter because, either way, they are both felonies and if you are in Trayvon’s camp, all you want is a conviction. Stop worrying about a plea. The least Zimmerman could get would be 25-years. That sort of changes the perspective on Mark O’Mara now, doesn’t it?