George Zimmerman wants Judge Kenneth Lester to get off his case. Literally. Mark O’Mara, the attorney for the killer of Trayvon Martin, filed a motion Friday to disqualify Lester from presiding over the second-degree murder case. After reading the jurist’s July 5 order upping Zimmerman’s bond and increasing the restrictions on his movements, I understand why O’Mara is making this move. But he is most likely stuck with him.
Zimmerman lied to Lester about his financial circumstances during his first bail hearing, but O’Mara accuses Lester of “making gratuitous, disparaging remarks about Mr. Zimmerman’s character,” among other things. As a result, O’Mara believes “the Court has created a reasonable fear in Mr. Zimmerman that this court is biased against him and because of this prejudice he cannot receive a fair and impartial trial or hearing by this Court.” The operative word here, folks, is “hearing.” A Stand Your Ground (SYG) hearing to be more precise. And on Page 11 of his motion, O’Mara gets to the heart of his client’s fear.
After all, this Court would preside over and is the trier of fact in any immunity proceeding under Florida statute 776.032. In that proceeding, the Defendant has the burden to convince the Court by preponderance of the evidence that he is entitled to the protections of the statute. . . . Those protections are significant. If the Defendant prevails at that hearing, he is immune from criminal prosecution and civil action. Mr. Zimmerman fears that the Court has already decided that he is not worthy of belief regardless of the type of proceeding or the corroborative evidence that would support his testimony.
As I wrote last month, there are risks for Zimmerman and for the prosecution in a SYG hearing. But there still remains a distinct possibility that Zimmerman could walk, escape prosecution, if he were to prove his innocence by a preponderance of the evidence, as O’Mara notes. Recent data have shown how low a bar Zimmerman would have to meet.
Yet, Lester’s July 5 order was so stinging, I immediately wondered if Zimmerman’s chances in a SYG hearing were doomed. Even Kendall Coffey, a former U.S. attorney for the Southern District of Florida, told me that he thought “the credibility gap Zimmerman has created with this judge is a concern” with such a proceeding. But he added this upon hearing about O’Mara’s motion to disqualify Lester. “That’s not going anywhere,” Coffey told me. “Judges are allowed to say someone’s untruthful. That’s their job. To say this manifests bias or prejudice is routinely rejected.”
This is a gutsy move by O’Mara, as Lester will decide whether to disqualify himself. If the motion is denied, O’Mara can appeal to the Court of Appeals for the 5th District. Coffey told me that he thought such a move “will not succeed” there, either. But Friday’s development and the moves to follow make me wonder whether O’Mara would forego a SYG hearing altogether, especially if Lester stays on the case.
In a SYG hearing the burden is on the defense to prove its case. As Coffey explained it to me previously, “There are some lawyers who would think about whether it is better to avoid such a hearing, which would subject Zimmerman to cross-examination and, if unsuccessful, could negatively impact his chances for trial.” But he went on to say, “No defendant wants to wait for a jury, but in the trial, the burden is on the prosecution. And the jury will not be informed of Zimmerman’s deceit concerning his finances.”
And the person presiding over it all will most likely be Lester.
[Correction, 9:45 a.m. Aug.10: The burden in a SYG hearing is not on the prosecution, as written in the original post. It is on the defense. The text above has been changed.]