The Curious Case of Benjamin Crump

Natalie Jackson, Dave Knechel and Benjamin Crump

The maelstrom that’s surrounded George Zimmerman since February 26 of last year reached a crescendo in the courtroom last week. Sort of. Then it waned. That his defense team has worked hard for him is something worthy of recognition, but little has been achieved during the course of the O’Mara reign — not that I’m doubting the defense team’s crowning victories; removing two judges from the bench.

What’s so interesting about the hearing to compel Benjamin Crump to be deposed (MOTION REGARDING DEPOSITION OF BENJAMIN CRUMP, ESQUIRE) is not so much that it was a loss to Zimmerman’s attorney, Donald West, who argued for it; it was that, even with a grant by the judge, what would have been gained? What would Crump have to offer other than opinion laced with innuendo?

In his response affidavit, Crump stated that he telephonically interviewed Witness 8, but before making the statement, he laid a foundation explaining what brought the interview about. For anyone to believe that he did so for the prosecution’s sake would be a fool. He did so at the behest of Trayvon Martin’s parents — for future civil litigation against the defendant. It is the interests of his clients that he considers. Yes, this includes some semblance of justice, but, to be specific, he was under no legal obligation to make the interview public, nor was he bound by law to turn it over to the prosecution or defense. Certainly, he was right when he did so. 

6. On or about February 28, 2012, after local authorities refused to arrest Defendant, my law firm and I were engaged by Trayvon’s parents to, inter alia [Latin for “among other things.”], zealously pursue, defend and protect their rights as the next of kin of a homicide victim, as well as any wrongful death and other civil claims that they or Trayvon’s estate may have — including, but not limited to, statutory, common law and constitutional claims against Defendant and others arising out of or related to Trayvon’s tragic death, access to public records, and the criminal prosecution of Defendant (collectively, the “Litigation”).

In essence, this means Trayvon’s parents have every right to legally pursue in civil court the person who admitted to shooting and killing their son. Whether this was murder or self-defense will be decided in criminal court.

7. The broad scope of my engagement in regard to the Litigation has remained the same at all times material to the instant case and, since February 2012, my reputation has been continuous and remains ongoing. From the outset through the present, I have gathered factual information and performed legal research from which I have formed — and continue to form — my own legal opinions, conclusions, mental impressions and theories of liability in regard to the Litigation.

There it is, in stark black and white — OPINIONS! As noted by Bernie de la Rionda at the hearing on February 22, there was never anything substantially factual to be gained by deposing Crump and Judge Nelson soundly agreed. She continued to badger the defense, West, in particular, about relevance. To what purpose would it serve?

In my opinion, the judge took Crump’s affidavit at face value. She believed him. (It’s also interesting to note that West rebuked Crump’s title of Esquire in open court, yet used it in the title of his deposition motion.) She reminded the defense that, while Crump did interview Witness 8, he was not present at the shooting. He wasn’t listening in on the phone call between Trayvon or Witness 8, either.

In her order, Judge Nelson cited several cases supporting her decision. I believe this is to back her up later on if there is an appeal.

One of the problems West brought up about Witness 8 was the way Crump described her age. Was she 16 or 17 at the time of the recording? While I agree with the defense on this one, I side more with the judge. She scolded West and O’Mara by telling them they’ve had 10 months to depose that witness. Why haven’t they done so? You see, and this is my thought, why put the cart before the horse? Why not ask the witness first? Then, if you have questions, file a motion to depose Crump. Now, it’s too late. The defense lost this round.

But did they lose? Not really. While I understand the motion, I saw nothing to be gained had they won; nothing at all. The relevancy precluded it. Crump never had much more to offer than opinion, and there still remains that strong element called attorney/client privilege. And neither side would dare put him on the witness list.

§

Along similar lines, tomorrow will mark the one-year anniversary of Trayvon’s untimely death. Battle lines are drawn, although there are no real fights in the physical sense. We’ve got www extremists on both sides that believe they are the one true authority. Well, that’s simply not true. The court is the only one that counts. Period. The rest is pure conjecture.

Zimmerman’s supporters believe Tracy Martin verbatim when he was questioned about the horrible cries for help heard on at least one of the 9-1-1 tapes. No, he initially said, that’s not Trayvon; however, he was under duress at the time, having just lost his son. Later, he rescinded that statement. What matters is what he will say on the stand, under oath, not what Internet people opine online. 

What no one seems to relate to is that fathers have no intuitive instincts compared to mothers. What, you say? What is it about mothers waking up in the middle of the night before their babies start to whimper, let alone cry, yet fathers sleep right through it? Trayvon’s mother immediately recognized her son’s voice in those calls, so why isn’t that an important piece of the puzzle to Zimmerman loyalists? When Trayvon was growing up, did Tracy hear the cries of his son like Sybrina, who mended his cuts and bruises; who rocked him in her arms? 

This is my point completely. Simply said, it’s wrong to make any assumption based on nothing more than presumption. Who knows for a fact right now whose voice screamed out in the dead of night clouded by light rain? The witnesses that spoke first and later changed their minds? George certainly knows. Sybrina, too, in her mind, and she will say so when it matters most — in the courtroom.

Why is it that the fans of Zimmerman question where Trayvon was “lying in lurk” when he had plenty of time to run home, yet couldn’t care less that George had nearly a minute to get back to his truck after crossing the “T” on the rebound where he claimed he was attacked? What was he really doing? He was still on the phone with dispatch!

You see, it’s not my point to prove what happened that night because I can’t, although I have walked the walk inside the Retreat at Twin Lakes and recorded it on video. I see what adds up and what doesn’t. Because of this, I think it was totally wrong for the defense to seriously consider that Crump could have offered anything more than his opinion on the homicide. Other than Zimmerman, the next best thing has been Witness 8. All along.

Pay attention to 4:56 in on the following video, NEN Call and Trayvon’s Walk. It documents the time based on statements given to the Sanford Police Department by George Zimmerman.

The Prince and the Pea: Subjective or Objective Fear in the Petitioner?

In his ORDER SETTING BAIL on July 5, 2012, Judge Kenneth Lester made several stipulations clear about what attorney Mark O’Mara’s client, George Zimmerman, could and could not do. For instance, he would be able to travel anywhere he wants as long as it’s within the boundaries of Seminole County. If he finds it necessary to leave the county, all he has to do is pass it by the court for authorization. It’s a rather plain and simple directive and something a five-year-old should be able to comprehend.

However…

In his MOTION TO MODIFY CONDITIONS OF RELEASE dated August 22, 2012, Mr. Zimmerman, through his attorneys, cited two issues pertaining to matters addressed in the judge’s above order. Call them problematic. The Court, for instance, must realize by now, due to the great amount of national and international publicity, not to mention notoriety and animosity, that Zimmerman “and his entire extended family have had to live in hiding, fearing for their own safety.” Therefore, he should be able to move out of the county, too.

I disagree with Mr. O’Mara’s choice of words. He exaggerates. How? In many ways, but for now, here’s a ‘for instance.’ It’s one thing to complain about the woes that have befallen his client, but his client and only his client was responsible for the big mess he’s in — not his family. Daddy did not hold his hand the night he pulled the trigger. Therefore, why bother bringing up any issue over his family’s fears for their own safety? It’s not that I don’t care, it’s just that there is nothing stopping them from moving out of the area any time they please. There are no restrictions on them whatsoever, and to suggest in that motion, albeit indirectly, that the Court was somehow responsible for this problem is, well, not showing a clear sense of responsibility. There is no way the Court can magically order the public to leave the Zimmerman family alone.

This is George’s unfavorably conducive style; his M.O. These are his edicts, sua sponte, not necessarily those of his attorneys. While his motions are filled with innuendos that tend to absorb what little substance they hold, it’s when he opens his mouth that we see him for what he is.

Full of Zimmermanure.

He not only speaks with a forked tongue, he also twists his tongue when he speaks. A good example of this came during his Hannity interview on FOX News. When asked if he would have done anything any differently, given ample opportunity to think about it now, he said he really hadn’t had the time to think about it, but after thinking about it, he wouldn’t have changed a thing. He regretted nothing and it was God’s plan. He had nothing to feel sorry about. Did that make sense? Wait. It gets worse.

Later in the broadcast, he turned and faced the camera, and in his best “My fellow Americans…” presidential-style address, he apologized to the nation, his wife, and everyone involved in the case, including Trayvon Martin’s parents. In my opinion, it was, at best, sickeningly insincere. Incidentally, a truly biased judge would have called him on the carpet for addressing Trayvon’s parents because, in his order, Judge Lester wrote:

“The Defendant shall not have any contact with the victim’s family, directly or indirectly, except as necessary to conduct pretrial discovery through his attorneys[.]”

Redundancy

My complaint, while being about the Petitioner, also includes his attorney and how he’s handling the case; his motions, in particular. In this very same Motion To Modify Conditions Of Release, O’Mara wrote:

“One of the conditions of release is that Mr. Zimmerman is not to leave Seminole County without prior authorization by this court.”

Right, Mr. Knechel, you already said that. Well, yes I did, but so did the judge and Defense, and just to clarify, this is a two-part motion. The second part addressed traveling outside the county, not moving out. The judge’s order covered it and the defendant acknowledged it, so what was the point of this final statement in Zimmerman’s latest motion?

“The restriction of Mr. Zimmerman not to leave Seminole County has had a deleterious effect on his ability to assist in the preparation of his own defense. Communications have been unnecessarily limited to telephone and occasional visits by counsel. Mr. Zimmerman must be able to travel to meet with his lawyers, and to attend to various other necessary matters to prepare this matter to move forward.”

Hmm… deleterious… injurious to health; pernicious, hurtful, destructive and noxious according to dictionary.com. My, what $5.00 words he uses that won’t impress any sitting judge let alone little old me. While I realize the motion also asked that Zimmerman be allowed to move outside of Seminole County, a request the Court denied, the rest of it is redundant. Here, verbatim, is what the judge wrote in his July 5 order:

“The Defendant shall not leave Seminole County without prior authorization by this Court[.]”

How much clearer can one get? All the defense had to do was ask. Why was it necessary to dedicate the brunt of this motion on something that was already covered a month-and-a-half earlier? And if O’Mara were really fearful of Zimmerman’s safety while residing somewhere in the entire county of Seminole, how much safer should he feel while his client is sitting in his office in downtown Orlando? Talk about deleterious! I’m serious.

Here’s the way I see George Zimmerman. When he doesn’t get what he wants, he whines and cries. He feels boxed in and claustrophobic. He gets restless and can’t sleep at night. His mattress turns lumpy. You see, George is starting to remind me of The Princess and the Pea with one major difference. He cannot get a comfortable night’s sleep until all his demands are met. The pea, in this case, is Kenneth R. Lester, Jr. who must be removed and replaced by a fairy tale friendly judge so Prince George, his friends, his family and his fellow American loyalists will be allowed to live happily ever after.

Fearing Fear Itself

In Nit-Picking Nit-Writ, I addressed the PETITION FOR WRIT OF PROHIBITION filed by the Zimmerman defense. I pointed out how O’Mara had offered evidence about the shooting on the night of February 26 and why it was not only unnecessary, it was useless. A writ of prohibition, in this case, only pertains to why the trial judge should be recused. It’s not for anything else. What O’Mara did was inflate a very weak document with superfluous fluff, like adding TVP to a package of fatty, grisly hamburger meat, and I don’t feel the appeal court is going to buy any of it. 

I do believe that Assistant Attorney General Pamela Koller offered up a much meatier argument against the Defense appeal. I will elaborate on that a bit and address the finer points of the State’s RESPONSE TO PETITION FOR WRIT OF PROHIBITION. In particular, I want to look into the two types of fear that the district court will examine — objective and subjective.

In 2005, I wrote a post about how slants change your views of the news. Titled, An unbiased look at news slants, I last updated it in February of 2010. I think it should give you a foundation on objectivity and subjectivity.

Objective information strives to remain unbiased. Dictionaries and other materials of reference, such as encyclopedias, generally provide factual information. Traffic lights are red, green and yellow. Yellow means caution, green means to go and red means to stop.

Subjective information is formed by personal opinion. Editorial sections in newspapers are subjective. While editorials and letters to the editor can be based on fact, opinions are usually based on personal interpretations of facts. Humans are responsible for global warming. Global warming is caused by natural earth cycles, such as the Ice Age. In these cases, separate and valid viewpoints can be substantiated by citing legitimate sources.

We know that George and Shellie Zimmerman lied to the Court about access to money and a second passport they claimed they didn’t have. The judge acknowledged that in his order revoking bond and Team Zimmerman then proceeded to call it biased, including the judge’s reprimand. (It’s interesting to note that the defendant still managed to post bail despite the Court setting it much higher than what was originally granted.) The fact that bail was granted at all after the second request could be considered a testament to the judge’s fairness. 

The Judge’s Order Setting Bail infuriated the Defendant and his counsel. How dare the Court look at his lies at all, let alone “judge” his actions and lack of respect for the court. To do so was nothing short of biased, they claimed, so they filed their writ of prohibition with the higher court. The bottom line now is how the Fifth District Court of Appeal will look at this motion — as an objective or subjective complaint — and rule accordingly, based on objectivity. Does Zimmerman have a leg to stand on? Is his distress based on a paranoid fear of persecution in general (subjective) or has this judge exhibited (objective) behavior in the past that truly legitimizes his concerns?

Let’s look at this objectively. In its response to the writ, the State wrote:

Petitioner complains about rulings in the past in his background section, but it is well established that “[t]he fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or ‘allegations that the trial judge had formed a fixed opinion of the defendant’s guilt, even where it is alleged that the judge discussed his opinion with others,’ are generally considered legally insufficient reasons to warrant the judge’s disqualification.” Rivera, 717 So. 2d at 481 (quoting Jackson v. State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d 494, 496 (Fla. 2d DCA 2003) (It is well established that a trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify).

In other words, this is not merely a complaint about Lester’s language in the bail order, it’s also about his prior rulings in Zimmerman’s pretrial motions. This is something that should be taken up post-conviction, if necessary, not now, and it epitomizes my description of superfluous fluff; not worth the paper it’s printed on. What the defense wants to do is set a silly precedent; that every single defense motion denial is biased. This would then have to include every case that has ever come before a court. Overturn every verdict because motions were denied! All in the name of George! Clearly, this is subjective thinking. “I think,” O’Mara could opine, “every motion that was turned down was done so by judicial bias.”

Of course, it’s every defense attorney’s dream, but most are smart enough to know it’s nothing more than a whimsical flight of fancy. Cheney Mason tried the same thing during the Anthony case and got nowhere.

The State cited Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA 2008):

Likewise, we recently pointed out that a “mere ‘subjective fear’ of bias will not be legally sufficient, rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). We do not find Mansfield’s allegations of fear to be objectively reasonable. See also Asay v. State, 769 So. 2d 974 (Fla. 2000). Our cases support the trial court’s denial of the motion to disqualify, and we affirm the trial judge’s order. 

Notwithstanding, Lester had every right to keep Zimmerman behind bars because the State went on to say that:

The judge again set a bond for Petitioner, and Petitioner is currently out on bond. Thus, the grounds listed by Petitioner in his motion are facially insufficient.

… and that the Petitioner is manipulating the system. From Cf. Brown, 561 So. 2d at 257 n. 7:

(“We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification…simply because of making an earlier ruling in the course of a proceeding which had the effect of rejecting the testimony of the moving party. At the very least…there must be a clear implication that the judge will not believe the complaining party’s testimony in the future.”).

While the assistant attorney general cited many examples of why this particular writ of prohibition is without merit, it is, by its very nature, nearly as subjective as the writ itself. Both sides came to their respective conclusions based on their own interpretations of case law. As the appellate court looks at this issue with complete objectivity, it should see that Judge Lester has not been prejudiced against George Zimmerman — and most assuredly, not personally. In my opinion, based on what the Defense and State both submitted, the original motion to disqualify the trial judge in this case was legally insufficient. Judge Lester made the right choice, and so will the appellate judges,  C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.

Poor Prince George is not just afraid of a li’l old pea, he’s also afraid of his shadow. Oh, and don’t even get me started on (d)(1) and (d)(2). That’s a whole “nother” bedtime story.

Cross posted at the Daily Kos

Nit-Picking Nit-Writ

This article will focus on the writ of prohibition filed by George Zimmerman’s defense attorneys, but before I do that, I’ve got to get something off my chest. It’s something I haven’t read much about elsewhere and it’s been bugging me in subtle ways for several months. As far as I’m concerned, it gets to the heart of the matter and why any motion to dismiss (in lieu of SYG) may be problematic for the defense.

I think most people will agree that Zimmerman has given several conflicting accounts of what transpired on February 26, the night Trayvon Martin died by a perfectly placed gunshot wound to the chest.

While his imagination has run wild, there’s one part of his stories that has remained consistent. He prefaces each and every 911/non-emergency call with, “We’ve had some break-ins in my neighborhood…” or words to that effect. Why does he start each one with that statement? Is it an excuse for what may transpire before the police arrive? Cover your butt? Let me tell you why I did it, in other words, by setting up his version du jour. In my opinion, it lays down a foundation as either of two things. Or both.

• He criminally profiled Trayvon, which is what the State claims, and he knows it.
• There was premeditation. By premeditation, I mean, as soon as he spotted the boy, his mind clicked into some sort of mutated high-gear attack mode and that’s when he began to stalk his prey with a vengeance. They always get away. NOT THIS TIME. In my book, it’s malice prepense, or malice aforethought — premeditation, pure and simple. 

Whether he intended to shoot Trayvon or not, he began a deadly game of cat and mouse. A killer cat pseudo-cop. Have gun, will shoot. And he did just that.

§

If you’ve ever seen video footage of babies falling out of chairs, they always look around. If someone is there, they immediately begin to wail and wait for mommy or someone else to run over and comfort them. If no one is there, they shrug it off and continue going about their business, climbing back up for more fun. Of course, I mean this only when there is no real harm done. It’s human nature and we learn at a very early age how to gain sympathy. In George Zimmerman’s case, he’s lived this way all his life. Someone has always been around to comfort him, and he’s forever gotten away with everything. He reminds me so much of Casey Anthony in the sense that her mother, Cindy, let her get away with murder. Don’t ask me if I mean that figuratively or literally. 

Zimmerman handily dismissed the first judge, Jessica Recksiedler, and he’s working on another. To be fair, I believe the motion to remove Recksiedler was Mark O’Mara’s idea, and he seemed to be careful when he constructed the recusal motion, just in case he needed to do it again.

Uh oh, he did it again.

This time, it was due to the “scorching” language the new judge, Kenneth R. Lester, Jr., wrote in an order denying bond after he discovered Zimmerman and his wife lied in court about a large sum of money they had in an account she only acknowledged existed. She denied knowing how much was in it when, in fact, she knew it was more than $130,000. There was also the issue of a tucked away passport they both failed to mention but openly discussed in coded jail house phone calls to each other prior to the initial bond hearing.

Oh my, judges do not like to be lied to, no matter how many inane explanations a defense attorney can conjure up.

Granted, the judge’s wording was quite tough, but did it reach the plateau that separates a legal reprimand from a personal one? It depends on which side of the fence you live on. Actually, it depends on what benches the three appellate judges sit on. That would be judges C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.

After Lester revoked Zimmerman’s bond, the defense filed a new motion to set bond. Of course, the State objected, but in the end, it was granted to the tune of $1,000,000. In his ORDER SETTING BAIL, the judge noted that:

… the Defendant did not offer any explanation of or justification for his deception that was subject to cross examination… As noted, the Defendant spent a substantial portion of the hearing presenting evidence relating to self-defense in an effort to counter the State’s case because, in the initial order, the Court characterized the State’s case as “strong.” Notably, at the initial bond hearing, this Court had only limited evidence; to that point, the State showed the Defendant had shot and killed Trayvon Martin. There was other evidence presented through the probable cause affidavit and the testimony of Dale Gilbreath, an investigator with the State Attorney’s Office, that the Defendant’s actions were imminently dangerous to another and that he acted with a depraved mind regardless of human life. The Defendant certainly indicated through cross-examination that he acted in self-defense, but he put forward no evidence of such. As a consequence, this Court found as a preliminary matter that the evidence against the Defendant was “strong.”

The order further stated that:

Since the June 29, 2012 hearing addressed whether to reinstate bond was not an Arthur hearing, the presentation of evidence attacking the State’s case is of limited relevance at this stage of the proceedings… The actual questions before this Court at this time are: is the Defendant entitled to bail when he presents false testimony at a prior bond hearing and what recourse there is when the Defendant has shown blatant disregard for the judicial sysyem.

In other words, the judge maintained throughout that the reason he stated the evidence against the defendant was strong was because the defense offered up nothing substantial to prove otherwise up to that point, and since the defendant lied to the court, was granting bail the proper decision? The argument that Zimmerman claims in his PETITION FOR WRIT OF PROHIBITION isn’t worth the paper it’s printed on:

There was little evidence regarding the strength of the State’s case at the initial bond hearing other than the bare-bones probable cause affidavit… and the testimony of State Attorney Investigator Dale Gilbreath, a witness called by the defense… Gilbreath acknowledged that the State had no evidence to contradict the conclusion that Trayvon Martin was the aggressor and threw the first punch and no evidence to contest that Mr. Zimmerman was headed back to his car when Mr. Martin attacked him.

Herein lays the problem, whether you see it or not. While the writ of prohibition does make mention of the judge’s strong language, the rest of it is filled with smoke and mirrors. Why, you may ask? Because it doesn’t stick to the matter at hand, as I clearly pointed out above. The writ reads more like a motion for dismissal.

Granted, the judge did make strong statements, but the defense virtually ignored the reasons why. The fact remains, George lied, whether by remaining silent as his wife directly lied to the court, or by proxy. By that, I mean he authorized his wife to lie. Sadly, the writ includes the issue over his wife being charged with perjury. Zimmerman and O’Mara blame it on the judge, who mentioned it in his bond revocation order. Well, she did lie! She did break the law! Is that the judges’s fault? No, but Team Zimmerman thinks so.

Getting back to the June 29 bond hearing, O’Mara deviates from the truth in his writ:

On June 29, 2012 a hearing was held on Mr. Zimmerman’s Motion to Set Reasonable Bond. At this hearing, Mr, Zimmerman presented evidence… in support of his claim of self-defense. This tidal wave of evidence…

A tidal wave of evidence? In his later Order Setting Bail, Judge Lester noted that:

Argument by counsel is not evidence.  See e.g. Wheeler v. State, 311 So. 2d 713 (Fla 4th DCA 1975) (noting that counsel’s opening statement is not evidence).

In plain English, it means that this tidal wave of evidence was nothing more than dirty bath water going down the drain. To clarify, the evidence was presented by O’Mara that day, not by the defendant. Sadly, the defense was aware of that, too, before it wrote the writ. 

ON COURT ETIQUETTE AND ETYMOLOGY

The writ of prohibition states that:

The court chose language in its July 5, 2012 Order to describe the Defendant in ways that reflect the court’s opinion of Mr. Zimmerman’s character as much as his conduct. In its Order, the trial court said, “[u]nder any definition, the Defendant has flouted the system.”

Ouch! Poor Zimmerman threw a pity party over it because:

“Flouted” is defined at Merriam-Webster.com as “to treat with contemptuous disregard; to indulge in scornful behavior.”

In Zimmerman’s case, the court was correct in that assessment. He did flout the system. It continues…

The court went on to say that, “[t]he Defendant has tried to manipulate the system when he has been presented the opportunity to do so”… and again that “… it appears to this Court that the Defendant is manipulating the system to his own benefit”… The court also accused Mr. Zimmerman of showing “blatant disregard for the judicial system.”

The strange thing about the above statement is that every quote by the court is true. Interestingly, one of the defense team’s only ways to counter the court’s language is to camouflage it with claims of what transpired the night of February 26, which really has no bearing on the writ. Meanwhile, the defense laments that:

The court completely ignored Mr. Zimmerman’s voluntary disclosure of the alleged wrongdoing and failed to acknowledge Mr. Zimmerman’s surrender of those donated funds to his lawyer…

The problem is that Zimmerman was caught with his grubby hands in the cookie jar and something tells me he’s always been a sneaky little bastard, pardon my language, who immediately apologizes when he gets caught. See? All better. This is the type of creep who will admit to nothing if he gets away with it, and the more and more we get to know him, the more we recognize it as one of his strongest traits.

I can go on and on citing the examples the defense used in attacking the judge. I can write about harsh language the judge used in his bail order, but consider what he also wrote:

The State notes that his stories changed [with] each retelling, but on the surface he should be deemed to have been cooperative. However, he clearly understood that he was being investigated for committing a homicide and, while he believes that he was justified in his actions, there has been nothing presented which indicates that he was misled into believing that he would not be charged with a crime. Contrary to being betrayed, the Defendant received normal, reasonable treatment and was granted reasonable bail.

That sounds fair to me, but Zimmerman disagrees:

Of particular relevance in the instant case is the legitimacy of Mr. Zimmerman’s belief that the trial court has prejudged his guilt regarding the alleged (by the trial Judge) violation of Florida Statute Section 903.035(3), and how it may carry over to guilt in the underlying second degree murder case.

The way I look at this is no different from any other scolding. Just like parents disciplining their child, they get over it and move on. My God, if parents held grudges, how could they ever treat their children fairly? Even O’Mara admitted when questioned during his writ of prohibition news conference that Judge Lester is a professional and fair. Basically, he contradicted his writ.

I am convinced that this judge can proceed from here and fairly preside over the entire George Zimmerman case. In his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, Lester made it clear that the DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE was legally insufficient. He further stated that:

The Defendant moved to recuse Judge Recksiedler on the basis of Fla. R. Jud. Admin. 2.330(d)(2), which mandates recusal when a judge is related to an interested party… [The] Defendant also argued language associated with Fla. R. Jud. Admin. 2330(d)(1). However, in an abundance of caution and based on the “totality of the circumstances,” she recused herself. This would indicate that her recusal was, in fact, based upon Fla. R. Jud. Admin. 2.330(d)(1), making this a successive motion under subsection (g) of that rule. Should that be determined, this court is prepared to rule on the facts alleged in support of the motion.

What that means is simple. The lower court is ready to show the higher court what this writ may be all about. Uh huh. Judge shopping.

The "Gratest" Show on Earth

I’m in the middle of researching the obvious — whether or not it’s feasible for the Zimmerman camp to file a motion to appeal Judge Lester’s order yesterday, to not recuse himself. I will look deeply into the logistics of such a move, but in the meantime, I want to give my old (and original) blog a shameless plug. Please take a peek. Meanwhile, isn’t this case starting to grate on your nerves?

FROM THE GALLERY…

Who would ever do such a thing?

Lester: No Judge to Rush

I could be wrong, but I do think it’s rather revealing that Judge Lester has taken his good old-time deciding whether or not he’ll step down from the bench. Granted, he’s been on vacation, but Zimmerman’s recusal motion was filed on July 13, well over two weeks ago, and as far as I’m concerned, the accused hasn’t had enough time to get nervous yet. He still thinks he’s the boss. Now, if I were in charge, I’d make him wait the full 30 days that’s allowed under the law before rendering a decision. Really rattle him. Then, I’d drop the bomb — that the judge has decided to remain on the case.

I’m not saying this because I expect Lester to be personally biased against the defendant. No, that’s hardly the reason. I just don’t think it’s right that George should get his way this time, like he’s been used to most of his life. Throw a tantrum. After all, he’s the one who lied to the court by ordering his wife to hide the truth. That means that he’s responsible for his wife facing a perjury charge. Now, he blames the court for it.

Even his attorney, Mark O’Mara, said his client lost his credibility. Soon after Zimmerman’s bond was revoked, he told Charlie Rose on CBS This Morning, “Judge Lester gave us all a very strong signal that he and he alone will run the courtroom and that everyone is going to tell the truth. So I’m certain that not only the Zimmerman family but all other witnesses that come before Judge Lester had better tell the truth and nothing but the truth if they’re going to be treated fairly.”

He readily accepted the judge’s fairness. Treat me right, I’ll treat you right.

According to a USA Today report, O’Mara said, “He [Zimmerman] should have jumped up and said she is lying. He should have done something, and he didn’t.”

I could go on and on with remarks made by Zimmerman’s own defense, but the fact remains, he lied and that’s all there is to it. O’Mara acknowledged that it would take a lot of work to regain the judge’s trust, and he admitted it was a huge mistake. He expected the judge to have a strong opinion. Rightfully so! This is nothing new, and it leads me to believe that, had the more prudent O’Mara prevailed, he would have worked out the messy kinks because he knows how much the judge and most in the legal field admire his honesty and professionalism. I believe the motion to recuse was Zimmerman’s idea, and his alone; just like taking command of his Website again. Not to mention his parents’.

Here’s the deal, in my opinion. Judge Kenneth Lester will “Stand His Ground” and remain seated. Why? Because Florida and federal law is on his side, and I don’t think he will relinquish anything to a punk, whether it’s “appealing” or not. He doesn’t strike me as a quitter.

According to The Law of Judicial Disqualification or Recusal, Florida Rules of Disqualification: Rule 2.330. Disqualification of Trial Judges, Zimmerman’s defense cites:

(d) Grounds. — A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

I can clearly understand the first motion to recuse against Judge Reckseidler based on (d)(2), but will the motion against Lester stand on the merits of (d)(1)? On his motion against Lester, Zimmerman added:

(f) Determination — Successive Motions. — The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

This means if the judge denies the defense request, no explanation is to be given. A simple “NO” will suffice. End of story. Time to move on.

As I wrote in my first article, Why Judge Lester Will Refuse to Recuse, a defendant cannot simply lie to a judge and get away with it. If a judge cannot respond without showing any kind of opinion regarding said lie, what’s the court to do? Evidence proved Zimmerman lied and the judge responded with disdain. Lying in court is against the law, and if all a person has to do is lie to the judge to get him/her recused for voicing concern, it would be anarchy in the courtroom. This would mean that every time a judge cries, “May God have mercy on your soul” after a death sentence is pronounced, the defendant should get the case thrown out of court. Not guilty on a technicality. The judge voiced his opinion on the verdict and a personal belief in religion. Separation of church and state!

Now, we come to a matter of law. Let’s quickly examine Section 455 of Title 28 of the United States Code, Disqualification of Justice, Judge, or Magistrate Judge. The most important part of this section is that in order to warrant a recusal, the judge’s expressions of opinion about the merits of the case must have originated outside the case.

Held: Required recusal under §455(a) is subject to the limitation that has come to be known as the “extrajudicial source” doctrine [or factor]. Pp. 3-16.

The general rule is that a judge should be disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…” This pertains to a prior opinion, and that would mean Judge Lester would have to have had an interest in the case before it was assigned to him. Surely he heard about it in the news? That’s not relevant. (See: Liteky v. United States (92-6921), 510 U.S. 540 (1994).) Under Liteky, the judge is expected to form opinions based on what is presented during the proceedings, not before. Remember that a judge formulates an order based on case law, and each side presents its own case law examples. Such is the situation regarding this recusal motion and the state’s very own response.

If we go back to the Casey Anthony v. State of Florida case, we saw multitudes of examples where Judge Perry admonished Jose Baez. If ever there was a situation that appeared to be biased and prejudiced, that was the one. Had Ms. Anthony been convicted, would it have been overturned on appeal based on the less than cordial interaction between Perry and Baez? I seriously doubt it, and do you want to know why? Because, in the end, the defendant was found not guilty of murder. The End. If the judge showed any bias or prejudice toward the defendant or any of her attorneys, the jury failed to notice. Why? Because the system worked and it will work again.

Judge Lester is tenacious. He has no reason to relinquish the bench. He saw right through George Zimmerman from Day 1 and he will see him right through to the end. That’s my judgement. That’s my opinion.

Why Judge Lester Will Refuse to Recuse

I can understand why George Zimmerman’s defense attorneys, Mark O’Mara and Donald West, filed a motion for Judge Kenneth Lester, Jr. to step down. It makes sense. For one thing, had they not, it wouldn’t help pave the way for a retrial later on if Zimmerman is convicted. I’m sure he requested it, too, and no matter what, the attorneys are there to work for their client. Besides, George is used to getting what he wants, he believes this is a frivolous case, and he wants a new judge. So there. Only it doesn’t work that way, and there are some rather good and strong reasons why.

Let me first mention a few “for instances” that were mentioned in the actual motion filed by his attorneys, the VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, which can be viewed HERE, directly from the gzlegal.com Website.

On page 5, the motion says:

“Generally a statement by the judge that he feels a party has lied in a case indicates bias against the party.”

Now hold on a minute. Didn’t another judge once say something about the truth and Miss Anthony are strangers? That had nothing to do with his recusal request, did it? No, it didn’t, and as a matter of fact, look at it this way. If all I had to do was lie to a judge to get him/her disqualified for bias, I’d lie to every judge who comes rolling down the pike, and I’d never go to trial. They’d run out of judges long before the statute of limitation runs out. Like a lot of defendants, lie your way out of it.

Let’s move on to page 7:

“The Court states that the money used to post bail ‘… is not money which the Defendant has earned through his hard work and savings, so forfeiting it for failing to appear would not impact the Defendant’s life in the same manner as a similarly-situated defendant who puts his house up for collateral to obtain bond.’ Page 7, (f). However, the Court fails to note that his family’s home would thereby be forfeited if he failed to appear. Further, the Court ignores the reality that those funds are the only funds available to Mr. Zimmerman to survive, to eat, to pay for utilities and to provide his family shelter.”

Here are the problems I see. George Zimmerman not only lied to the court, he lied to his parents, who took out a second mortgage on their house to secure the bond money. What a weasel. He lied to his attorneys, too. As for food and shelter, it was clearly spelled out that the money was to be used for his defense, not to pay off credit card bills and to buy expensive guns. Aside from that, it’s a lousy excuse and a cheap argument.

From page 9:

“The Court departed from its role as an impartial, objective minister of justice when it stated on two occasions on 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. Comments like these are taken seriously by the Defendant, and further convinces him that he cannot get a fair trial from this Court. The Court made a similar comment about his wife at the June 1, 2012 bond revocation hearing when it said…”

We all know what it said, and Shellie Zimmerman was duly charged. The problem here is that the motion blames the judge and not his client. Had his client and wife just told the truth to begin with, this would not be an issue. It’s a situation that is being passed off on the judge. The fact remains that the Zimmermans lied and the judge pointed it out, including what the possible charges and penalties might be. Who is to blame for that? Was the judge merely telling the truth? Poor George says he takes the judge’s comments seriously. Well, shiver in me boots. What about the judge? He took the Zimmermans’ comments seriously, too, but according to the Book of George, he wasn’t supposed to do that? Only George is allowed? Gimme a break. I could go on and on, but…

George is responsible for his own mess. Based on the recusal motion, I see nothing that warrants the judge to step down, but that’s only part of the reason why this judge will refuse to recuse.

§

I think that most of you are aware of a role I played in a motion filed in another case where the presiding judge was asked to step down. I did an awful lot of legal studying back then, and in March of 2011, Casey Anthony’s defense filed a motion, the MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS, that had this one glaring statement:

c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.

Holy Foghorn Leghorn! Only thing is, under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.

Since this is the route O’Mara and West are taking, they should be familiar with F.S. §38.10, which states:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.

But please pay particular attention to this part:

However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

Remember the first judge? Jessica Recksiedler? She was asked to recuse herself and that’s how Judge Lester came to the bench.

After Judge Recksiedler willfully stepped down, and she could have easily remained on the bench, Judge Lester cannot be disqualified because of alleged prejudice solely based on what Zimmerman claims. The only way it would work is if Lester admits he is biased in favor of the prosecution. Even then, his admission would merely be recorded in the court minutes and the trial would proceed on schedule. Of course, this would be reviewed after a conviction (if there is one) and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different.

One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as O’Mara and West are claiming in their motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein.) You just have to prove it.

§

Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake.

Back to good old Rule 2.160…

Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!

When Judge Recksiedler disqualified herself, Judge Lester cannot be disqualified on any successive motions filed by Zimmerman’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Lester will be allowed to toss out any new dismissal motions filed on Zimmerman’s behalf.

See also: The Florida Bar Journal, Judicial Disqualification: What Every Practioner (and Judge) Should Know, Douglas J. Glaid, October, 2000 Volume LXXIV, No. 9