ORLANDO (CBS4/AP) — The judge presiding over the case of a former neighborhood watch volunteer charged in the fatal shooting of a South Florida teenager should be removed from the case, a three-judge panel ruled Wednesday.
The Fifth District Court of Appeals granted a defense motion asking that Judge Kenneth Lester should enter a motion to disqualify himself in George Zimmerman’s second-degree murder case. Zimmerman is charged with the shooting death of Trayvon Martin on February 26.
Zimmerman’s attorney Mark O’Mara asked the court earlier this month to overturn a previous ruling by Lester not to leave the case.
O’Mara had argued that Lester should disqualify himself after he said the judge made disparaging remarks about Zimmerman’s character and advocated for additional charges against him in setting his $1 million bond in July.
Zimmerman remains free on bail, accused of fatally shooting Martin in a Sanford neighborhood in February. He has pleaded not guilty and claims he shot the 17-year-old in self-defense.
Phone messages left with O’Mara and the state attorney’s office seeking comment were not immediately returned.
Appeals judges C. Alan Lawson and Jay P. Cohen wrote the concurring opinion granting the defense’s petition. Judge Kerry Evander dissented.
The concurring opinion said that Florida Rule of Administration 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.'”
“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,” the opinion said.
In his dissent, Evander wrote that “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.”
During the July 5 bond hearing that the defense cited as a basis for why Lester should step down, the judge said Zimmerman and his wife “flaunted the system” by failing to disclose how much money he’d raised through donations before his initial bond hearing, in which his bail was set at $150,000.
Lester also said that it appeared Zimmerman was preparing to flee to avoid prosecution for the second-degree murder. For that reason, he increased Zimmerman’s bond to $1 million.
Zimmerman posted bail a few days later and was released. He has remained in an undisclosed location since then.
The state attorney opposes having the judge step down and wrote in a response to the defense’s request that “the judge was simply giving (Zimmerman) a well-deserved tongue lashing for allowing others to mislead the court about his passport and financial situation.”
Should Lester step down, it would be the second time a judge has left the case.
The original judge in the case, Jessica Recksiedler, stepped down shortly before Zimmerman’s first bond hearing in April. Recksiedler’s husband works with Orlando attorney Mark NeJame, who was first approached by Zimmerman’s family to represent him.
NeJame declined, but referred them to O’Mara.
After a hearing last week in which Lester granted Zimmerman permission to leave Seminole County to visit his attorneys, O’Mara said that the outcome of the appeal could affect their preparation for trial going forward.
He said that could include re-filing past motions with a new judge.
“Of course, there’s always a concern to make sure everything that comes up in this case is dealt with appropriately to begin with,” O’Mara said last week. ” … We’re gonna protect that right.”
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