Prosecution: Defense motion for judge's recusal in Zimmerman case 'absurd' and brimful of 'bombast'

George Zimmerman, left, with his attorney,
Mark O'Mara. (Reuters/Joe Burbank) The prosecutor in the murder case against George Zimmerman has replied with a scathing response to a defense motion for Circuit Court Judge Kenneth Lester to recuse himself. Defense Attorney Mark O'Mara argued in his motion filed last week that Lester is biased against Zimmerman, and that the 28-year-old defendant fears he will not get a fair trial if Lester presides. The prosecution's response all but calls the motion nonsense and challenges O'Mara's interpretation of both the law and court precedent regarding recusal:

Despite supposedly being biased against him, the Court has TWICE granted him bond in this high-profile homicide case, and in fact has exercised its discretion on numerous occasions to grant Defendant benefits not ordinarily enjoyed by the criminal accused. For example, Defendant has been permitted to live outside the State of Florida, to have witnesses testify telephonically, and to appear in court in civilian clothing and without shackles even while he was incarcerated."

On Feb. 26, Zimmerman shot and killed an unarmed 17-year-old, Trayvon Martin, in a gated community in Sanford, Florida. Zimmerman had viewed Martin as suspicious and had followed him. He claims he only defended himself by drawing a concealed pistol after Martin attacked him. Zimmerman was originally released on $150,000 bail, a low level obtained because of phony claims that he and his wife were practically broke. The court soon discovered the deceit. Judge Lester revoked bail, ordered Zimmerman jailed again and held another hearing. He subsequently reset bail at $1 million. In his bail order, the judge took a dim view of the Zimmerman couple's deception.

Language in that order was what O'Mara said had prompted the filing of the recusal motion. In it, he wrote that Judge Lester had used "gratuitous" and "disparaging" remarks that proved his prejudice in the case.

The prosecution's response filed Tuesday, and written by Assistant State Attorney Bernardo de la Rionda, states that the defense motion is "long on conjecture and irrelevant and inaccurate bombast," misrepresents case-law regarding justification of recusal for bias, and omits inconvenient evidence. It is "absurd" and "devoid of legal merit."

De la Rionda writes that making findings "averse to Defendant is not sufficient to warrant disqualificaton." He cites a case in which a judge went way beyond anything Judge Lester has said, but whose statements the court ruled did not require recusal:

[...] the trial judge issued a much more egregious statement to the Florida Parole and Probation Commission to the effect that "the subject is a dangerous and sick man and that many other women probably suffered because of him." We rejected the claim that such a statement by a trial court judge provided a basis for recusal or the trial judge in subsequent proceedings.

In another cited case:

Second, opinions formed by the judge on the basis of facts introduced or events occurring int he course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical of disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge.

De la Rionda states that Zimmerman "complains of 'misinformation' being conveyed" about the case. "It is, of course, Defendant who was responsible for the 'misinformation' conveyed at the hearing he requested, both through his active presentation of a witness who is now charged with perjury [Zimmerman's wife, Shellie] and his intentional omission of any corrective measure at the hearing."

Perhaps most telling of all is de la Rionda's claim that O'Mara has misrepresented the legal standard by failing to provide the context in his citing of the case of Brown v. St. George Island several times. In that case, O'Mara stated in his defense motion, "a statement by a judge that he believes a party has lied indicates a bias against the party."

But, writes de la Rionda, that only applies under narrowly construed circumstances not applicable in the Zimmerman case. In Browne, the trial judge stated about the absent defendant, "If Mr. Stocks were here I wouldn't believe him anyway." That, the court held, was indeed indicative of bias requiring recusal. However, it added in its ruling:

We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification under section 38.10 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, before section 38.10 can be successfully invoked in this context, there must be a clear implication that the judge will not believe the complaining party's testimony in the future.

De la Rionda points to many public statements made by O'Mara himself in various media interviews that acknowledge Zimmerman's lack of credibility. "'Ironic' is perhaps an understatement in that context," de la Rionda states.

Judge Lester is expected to issue his ruling by week's end.