Judge shopping not likely to work out for George Zimmerman's lawyer

George Zimmerman appears with his attorney,
Mark O'Mara, at his bond hearing in the Seminole
County (Florida) Court June 29, 2012.
(Reuters/Joe Burbank) George Zimmerman's lawyer filed a motion last week to have the judge in his client's case replaced on grounds of bias expressed in an order to increase bail. No surprise. And not much chance the motion will be granted. That, at least is the view of some lawyers, including Kendall Coffey, a former U.S. attorney for the Southern District of Florida. He told Washington Post columnist Jonathan Capehart:

That's not going anywhere. [...] Judges are allowed to say someone's untruthful. That's their job. To say this manifests bias or prejudice is routinely rejected.

So what does defense attorney Mark O'Mara have in mind? He may be calculating, as Capehart and other observers speculate, whether to go ahead with a hearing under Florida's contentious stand-your-ground statute. Or to bag it.

Zimmerman claims that after becoming suspicious of Trayvon Martin on Feb. 26 and following him into a gated community in the central Florida city of Sanford, the unarmed 17-year-old attacked him, knocking him down and slamming his ahead against a sidewalk repeatedly. To defend himself, Zimmerman told police, he pulled a pistol from his waistband holster and fired a single shot, killing Martin.

The Castle Doctrine has long given people the right to defend themselves in their homes or workplace without retreating. For the past half-dozen years in Florida, and more recently in over a score of other states, that doctrine has been extended to anywhere an individual has a legal right to be. Under the statute, individuals have the right to a pre-trial stand-your-ground hearing during which all charges can be dismissed. No prosecution and, of course, no trial.

Of necessity, however, such hearings often amount to presentation of a mini-trial, without a jury.

A mini-trial is what O'Mara chose to present instead at a bail hearing for his client two weeks ago. He may well have been testing the waters to see whether a stand-your-ground hearing would have a reasonable chance of success. When Circuit Court Judge Kenneth Lester issued his bail ruling July 5, O'Mara got his answer: A stand-your-ground hearing would probably not produce a ruling in his client's favor.

Zimmerman's bail had been revoked when it was discovered that he and his wife had concealed assets and made the claim they were essentially broke so he could obtain low bail. That subterfuge worked until it was discovered otherwise. Judge Lester revoked bail and ordered Zimmerman to surrender to authorities. In the three-hour bail hearing, O'Mara mostly addressed issues related to what he viewed as exculpatory matters leading up to the shooting. Only minimal time was spent on the issue the judge had asked to be addressed, that being whether Zimmerman and his wife, Shellie, now charged with perjury, tried to hide assets and deceive the court.

Although Judge Lester granted bail, he upped it from $150,000 to $1 million, stating, among other things:

The Defendant has tried to manipulate the system when he has been presented the opportunity to do so. [...] Contrary to the image presented by the Defendant not by evidence but only by argument of counsel, it appears to this Court that the Defendant is manipulating the system to his own benefit. The evidence is clear that the Defendant and his wife acted in concert, but primarily at the Defendant's direction, to conceal their cash holdings. They spoke in rudimentary code to conceal the true amount of money they were dealing with. [...] The Defendant also neglected to disclose that he had a valid second passport in his safe deposit box. Notably, together with the passport, the money only had to be hidden for a short time for him to leave the country if the Defendant [chose to] make a quick decision to flee.[...]

His lack of candor was not limited to representations made to the Court.

O'Mara's motion for Judge Lester to take himself off the case stated:

In said Order, the Court makes gratuitous, disparaging remarks about Mr. Zimmerman's character; advocates for Mr. Zimmerman to be prosecuted for additional crimes; offers a personal opinion about the evidence for said prosecution; and continues to hold over Mr. Zimmerman's head the threat of future contempt proceedings. In doing so, 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 Court departed from its roles as an impartial, objective minister of justice when it stated on two occasions in its Order that in the Court's personal opinion there is probalbe 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.

Disparaging, no doubt. But hardly gratuitous. And the case law that O'Mara cited had to do with instances when a judge's remarks were unrelated to the issue at hand. Judge Lester's comments were directly related to Zimmerman's deceptions. He attempted to flout the system and he got caught.

Under Florida's pre-trial release rule:

All information provided by a defendant in connection with any application for or attempt to secure bail [...] shall be accurate, truthful, and complete, without omissions, to the best knowledge of the defendant. Failure to comply with the provisions of this subdivision may result in the revocation or modification of bail.

That statute also refers to potential penalties for intentionally providing false or misleading material "in connection with an application for bail or for modification of bail." Judge Lester was merely stating the facts. The prosecutor might indeed look at such facts and choose to add a felony or misdemeanor charge to the second-degree murder charge. But that doesn't mean, as O'Mara claims, that the judge was urging such prosecution. Judge Lester stuck with legal analysis without making unrelated editorial comments.

Even so, he might choose to take himself off the case to avoid the appearance of prejudice and give the defense a hook upon which to seek a reversal should Zimmerman be convicted at trial. Whether presided over by Judge Lester or someone else, that trial will not happen for months, likely not before 2013.