Judge Kenneth Lester, Jr.
The judge in George Zimmerman’s trial on August 1 refused to step down, or recuse himself, denying the defendant’s motion to disqualify. In an earlier bond order, Judge Kenneth Lester Jr. had characterized Zimmerman as a manipulator who was likely to flee and expressed exasperation over the defendant’s and his wife’s failure to disclose their full income when the first bond was set.
Zimmerman’s lawyer Mark O’Mara seized on those statements to try to convince the judge he could not give the defendant a fair trial. Zimmerman faces second-degree murder charges for shooting and killing Trayvon Martin, an unarmed teenager walking in Zimmerman’s neighborhood last February. O’Mara called the judge’s statements “gratuitous, disparaging remarks,” contending that Judge Lester is refusing to consider evidence that tends to show Zimmerman is not guilty and has “already formed a negative opinion of Mr. Zimmerman.”
Refuse to Recuse
But Judge Lester was not impressed with Zimmerman’s argument, dismissing it in a brief order that merely said the charges were “legally insufficient.” Afterwards, O’Mara indicated the defense might appeal the denial, meaning an appeals court would be asked to take up the question of whether the trial judge can give Zimmerman a fair trial. “He is concerned that [Lester] would be unfair, and he still has that belief,” said O’Mara of his client.
The fight over the judge is further polarizing an already divided and rapt audience in the legal community. Some lawyers say O’Mara should continue to challenge Judge Lester’s impartiality, pointing specifically to the judge’s indication that Zimmerman could face contempt charges, which the court, not prosecutors, can level at anytime, sending the defendant back to jail. “Holding this over Mr. Zimmerman creates a profound chilling effect on this case,” according to the defense’s denied motion.
But other lawyers, including the prosecution, say any judge asked to hear this case would have to deal with the same questions concerning Zimmerman’s character and credibility. “All judges on a regular basis are asked to listen to evidence and make decisions on the evidence presented,” according to the state’s response to the defendant’s motion to disqualify. “If a party doesn’t like a court’s findings that doesn’t mean they have the right to ask for a new judge.”
Whether Zimmerman will appeal is still an open question. The only thing clear at this point is that both sides are using their motions to get in jabs at each other and continue to play out their sides of the story. The state, for instance, makes sure to mention that “this is the second judge which Defendant has moved to have disqualified” (emphasis in original).
And O’Mara, who has a keen eye for how to present his client to a conservative jury pool that seems supportive of Zimmerman, is likely playing up to these potential jurors in his motions, which become part of the public record for anyone to read. For instance, the defense complains that the affidavit used to establish probable cause failed to acknowledge Zimmerman’s self-defense claim; but there is no legal requirement that such information be included there. Was this merely a chance to mention self-defense again?
The prosecution was not shy about pointing out that possibility: “Why this and other such matters is discussed in a motion to disqualify the Judge is an open question,” reads the response. “One might ponder the motive for including irrelevant material in such a Motion; is the design merely to get sympathy for the Defendant and/or prejudice potential jurors?”
You bet, said Debbie Hines, a former prosecutor interviewed on the Lawyers.com Blog recently about Zimmerman’s wife’s legal troubles. “There is a lot of information in that pleading that wouldn’t normally be there,” she says. “Everything in this case is in the public eye.”