The appellate court has agreed with defense attorney Mark O’Mara, and the accused George Zimmerman, that Judge Kenneth Lester is prejudiced in his rulings against Zimmerman and that George Zimmerman has reason to believe he is unable to receive a fair trial. Subsequently Ken Lester has been removed.
Opinion filed August 29, 2012 – Petition for Writ of Prohibition
Kenneth R. Lester, Jr., Respondent Judge. – Mark M. O’Mara, of O’Mara Law Group,
Orlando, and Donald R. West, of Don West Law Group, P.A., Orlando for Petitioner.
Pamela J. Bondi, Attorney General, Tallahassee and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Respondent. 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.
Florida Rule of Judicial Administration 2.330 requires a trial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)).
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.
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.
LAWSON and COHEN, JJ., concur.
EVANDER, J., dissents with opinion.
From the Orlando Sentinel: […] “… this is admittedly a close call,” wrote Judge C. Alan Lawson, but Lester’s actions, taken in total, meet the legal standard requiring him to step aside.
A second judge, Jay Cohen, agreed. The third panel member, Kerry Evander, disagreed.
Evander wrote, “Although the trial court’s order clearly manifested an exceedingly strong belief by the trial judge that Zimmerman had ‘flouted’ and ‘tried to manipulate’ the system, I do not believe the order ‘crossed the line’ so as to require the granting of his motion.’
The order was released late Wednesday afternoon. The Office of Florida’s Attorney General, which had handled the appeal and asked that Lester stay on the case, issued a short statement, saying it would not appeal further.
Special Prosecutor Angela Corey’s office had no comment.
The next step is for the chief judge of the circuit, Circuit Judge Alan Dickey in Sanford, to appoint a new judge. That could happen Wednesday evening, and it’s expected to be Circuit Judge Debra S. Nelson, 59, another felony trial judge in Sanford.
Zimmerman is the 28-year-old Neighborhood Watch volunteer who shot and killed Trayvon Martin, an unarmed black 17-year-old in Sanford Feb. 26, setting off weeks of civil rights rallies by people demanding his arrest.
Six weeks after the shooting, Zimmerman was arrested and charged with second-degree murder by a special prosecutor.
Defense attorney Mark O’Mara had pressed for a new judge, arguing that Zimmerman does not believe he would be treated fairly by Lester because of a July 5 bond ruling.
In that nine-page order, Lester set Zimmerman’s bond at $1 million but also accused him of showing “blatant disregard for the judicial system” and “manipulating the system for his own benefit.” (continue reading)