George Zimmerman Case- Response by FloridaDA to Request for Recusal

7/31/2019 George Zimmerman Case- Response by FloridaDA to Request for Recusal

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

GEORGE ZIMMERMAN,

Petitioner,

v. CASE NO. 5D12-3198

STATE OF FLORIDA,

Respondent.

_____________________________/

RESPONSE TO PETITION FOR WRIT OF PROHIBITION

COMES NOW, the Respondent, State of Florida, pursuant to this

Courts August 14, 2012, order to respond and states:

PROCEDURAL AND FACTUAL STATEMENT

Petitioner is charged by information with one count of second

degree murder for the shooting death of Trayvon Martin on February

26, 2012. (Pet. Appx. Page 1). Petitioner filed a Motion to

Disqualify Trial Judge on April 16, 2012, pursuant to Florida Rule

of Judicial Administration 2.330(d)(2), i.e., that the judge is

either an interested party to the matter, related to an interested

party, related to counsel, or is a material witness for or against

one of the parties to the cause. (Appendix A). In it, Petitioner

argued that the first assigned judge, who is married to a law

partner of the Nejame Law Firm, should be disqualified because Mark

Nejame had been consulted by Petitioner and his family prior to

Petitioner hiring his current attorney. Id. The first trial judge

granted the motion on April 18, 2012, finding the cumulative effect

of events provided a legally sufficient basis for the Court to

E-Copy Received Aug 23, 2012 2:


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grant the motion. (Appendix B). However, the first trial judge

found the individual bases argued, i.e., that the courts husband

is a partner at the Nejame Law Firm and Mark Nejame is acting as a

legal analyst for CNN, were legally insufficient. (Appendix B).

Moreover, the allegation that Mark Nejame spoke to Petitioner and

his family and received confidential information was also legally

insufficient as Petitioner admitted he had no knowledge of any

communications between Mark Nejame and the judges spouse. Id.

On April 20, 2012, Petitioner was before the successor judge,

Circuit Court Judge Kenneth R. Lester, Jr., upon a motion to set

bond filed by Petitioner. (Pet. Appx. Page 65). At the hearing,

counsel for Petitioner advised the court that he was providing the

court with Petitioners current passport which was the only

passport he had. (Pet. Appx. Page 363). Petitioners wife testified

after being sworn. (Pet. Appx. Pages 367-368). Shellie Zimmerman

testified that she had no income and no major assets that could be

liquidated to assist in raising money for a bond. (Pet. Appx. Pages

370-371). She also was aware that they were seeking to have her

husband declared indigent because they had no financial means to

assist in paying for costs. (Pet. Appx. Page 371).

The State asked Shellie Zimmerman about Petitioners ability

to make bond amount. Petitioners wife said they had no money.

(Pet. Appx. Page 382). The State inquired about the website, butShellie Zimmerman indicated she currently did not know how much

money had been raised; that her brother-in-law would know. (Pet.

Appx. Page 382). She also denied even having an estimate of the


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1At the hearing held on June 29, 2012, the accountantexplained that a check for $122,393.00, dated April 25, 2012, wasdeposited into counsels trust account on April 27, 2012. (Pet.Appx. Page 143). The difference between the total amounttransferred from the PayPal account into the Zimmermans accountsand the money deposited into counsels trust account is $49,486.96.(Pet. Appx. Page 144).

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amount of money raised in the website or having spoken with her

brother-in-law about the money. (Pet. Appx. Page 383). After

argument of counsel, the judge set the bond at $150,000.00. (Pet.

Appx. Pages 65,475,480,481,483).

At a hearing held on April 27, 2012, on various motions,

counsel for Petitioner disclosed the fact that approximately

$204,000.00 had been donated to Petitioner via the internet into a

PayPal account. (Pet. Appx. Page 96). Counsel further advised the

court that when Petitioner was before the court at the April 20,

2012, bond hearing, approximately $150,000.00 was available that

was not disclosed to the court by the family. (Pet. Appx. Pages

96,97). However, according to counsel, Petitioner had not divulged

this information to counsel until after the bond hearing. (Pet.

Appx. Pages 95-96). Counsel explained that the money had been

placed in a trust account under his control, and there was

$150,000.00 available to the family as of last Friday.1 (Pet. Appx.

Page 97).

The State argued that there was a change in circumstances

involving the bond and asked that the court address the matter as

the family had represented they had no money when, in fact, they

did have money. (Pet. Appx. Page 98). The trial judge, while


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recognizing that false websites are created during disasters and

such, asked counsel to discover the genesis of the account, who was

in charge of the account, the date of any payments made to the

account, and who has authority on the account. (Pet. Appx. Page

99). The judge instructed the defense to turn over that information

to the State. Id. The court was unsure of its authority to order

Petitioner to deposit or move any funds and needed to know who has

authority over the account. (Pet. Appx. Pages 99-100).

The trial judge entered an order on April 30, 2012,

referencing these matters addressed at the April 27, 2012, hearing,

regarding a gag order. (Appendix C). In it, the trial court noted

that documents with protected information should be filed in

redacted form for the public record and in unredacted form under

seal for in camera review. (Appendix C).

On June 1, 2012, the State filed a motion to revoke bond.

(Appendix D). In it, the State alleged that Petitioner and his

family members misled the trial judge as to his possession of a

United States passport as well as his and his familys financial

circumstances. (Appendix D). The State set forth Shellie

Zimmermans testimony at the bond hearing wherein she testified

under oath that she and her husband had no financial means or

assets they could liquidate to assist in paying for a bond.

(Appendix D, Pages 3-4). She also had testified on cross-examination that she was aware of the website but did not know the

amount of money that had been collected. (Appendix D, Page 4).

Furthermore, the State cited to transcript excerpts of


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recorded jail conversations prior to the bond hearing between

Petitioner and his wife. While incarcerated at the Seminole County

Jail, Petitioner had discussed with his wife the amount of money in

the website account and that it was transferred into Petitioners

credit union account and then, at Petitioners direction, into

Shellie Zimmermans personal account. (Appendix D, Pages 4-6).

According to the credit union statements, on April 19, 2012,

Shellie Zimmermans account reflected over $135,000.00 (Appendix D,

Page 7). The State asserted that Petitioner intentionally deceived

the court with the assistance of his wife. Id. The State also

contended Petitioner and his wife spoke in code in order to

disguise what they were doing. Id. The State further alleged that

all of this occurred prior to the sworn bond hearing testimony on

behalf of Petitioner that he was indigent and his wife had no

money. Id.

The State pointed out that Petitioner also represented to the

court, through his attorney (who the State was not alleging was

privy to what Petitioner was doing), that he was turning in his

United States passport when, in fact, Petitioner possessed a second

valid passport. Id. The State asked that the judge revoke the bond

set at $150,000.00 based upon false representations by Petitioner

and his family, or increase the bond substantially. Id.

A hearing was held on June 1, 2012, at which the Statesmotion to revoke bond was addressed. (Pet. Appx. Pages 236-349).

The judge noted its surprise that the State had not filed anything

against Petitioners wife as there was no doubt she was aware of


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what had transpired. (Pet. Appx. Pages 350-351). Referencing

Florida Rule of Criminal Procedure 3.131, the judge noted that in

subsection 5 all information provided by a defendant in an attempt

to obtain bond shall be accurate, truthful and complete without

omissions to the best knowledge of the defendant. (Pet. Appx. Page

350). The judge asked if the jail conversations predated the bond

hearing and the State indicated they had, as they were conducted on

April 12th, April 15th, April 16th and April 17th. (Pet. Appx. Page

351). The judge stated that Petitioner was not entitled to sit

quietly allowing his wife to testify falsely or his attorney to

unknowingly make misrepresentations. (Pet. Appx. Page 351). The

judge revoked the bond in that good cause existed based upon the

material misrepresentations relied upon by the court. (Pet. Appx.

Page 352). The trial court also informed Petitioners counsel that

he could reset the case for a bond hearing to allow Petitioner to

explain to the court what happened. Id.

On June 11, 2012, an order revoking bond was rendered based on

Petitioners lack of candor. (Pet. Appx. Page 115). In the order,

the trial court held as follows:

The Defendant, charged with second-degreemurder, was released on $150,000 bond on April20, 2012. At the hearing, the Court heardtestimony regarding the Defendants financialmeans from Shelly Zimmerman, the Defendantswife. She testified under oath that she and

the Defendant had no financial means andshould be declared indigent for costs. Sheacknowledged the existence of a legal fund,administered by her brother-in-law, which hadcollected online donations, but she furthertestified that she had no knowledge of howmuch money was presently available in that


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fund. It was also affirmatively representedthat the Defendant had turned in his passport.The Defendant gave limited testimony at thebond hearing on different matters, but did notcontradict or supplement his wifes testimonyabout his financial resources or possession of

a passport.

The State filed a Motion to Revoke Bond whichwas heard on June 1, 2012. At the hearing onthe motion, the State alleged that, contraryto the testimony provided at the bond hearing,she and the Defendant had discussed the amountof money in the fund and how to gain access toit. The State cited excerpts from recordedconversations made at the jail between theDefendant and his wife to support itsassertions of deception. With regard to theDefendants present financial means, the State

notes that they spoke in code to make itsound like they were talking about negligiblesums of money. To the contrary, the evidenceshows that, in the five days prior to the bondhearing, approximately $135,000 wastransferred to the legal fund into theZimmermans bank account. This was notdisclosed at the bond hearing.

Also, it was alleged that the Defendant wasuntruthful regarding his possession of a validpassport. At the bond hearing, the Defendantsurrendered passport number 301813125, whichhad been issued on May 22, 2002, and had anexpiration date of May 21, 2012. The defenseasserted that this was the Defendants onlypassport. However, it was later discoveredthat the Defendant was actually in possessionof another passport, number 017355779, whichhad been issued on March 26, 2004 and expiredon March 24, 2014. It was issued as areplacement when the Defendant notified theDepartment of State that he had lost passportnumber 301813125. Neither the Defendant norhis wife mentioned the existence of this

second passport during their testimony.The State argued against setting a bond forthe Defendant on the basis that thecircumstances of this case demonstrate that heis a serious threat to the community, basedupon his prior violent history, the repeated


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refusal to respect law enforcementsdirectives, and the fact that he is chargedwith killing an unarmed teenager. The Court,based upon the information presented,determined that $150,000 was an appropriatebond to ensure the Defendants presence in

court and also to protect the community. TheDefendant was also allowed to leave the stateand keep his location confidential in order toensure his personal safety.

Had the Court been made aware of the truefinancial circumstances at the bond hearing,the bond decision might have been different. Abond that a Defendant cannot afford istantamount to no bond at all. While the Courtwould have been authorized under State v.Arthur, 390 So. 2d 717 (Fla. 1980), to keepthe Defendant in custody without granting a

bond, the Court exercised its discretion andset what was believed to be a reasonable bond.In determining the reasonable bond amount, theCourt balanced the Defendants right to befree from custody, while still ensuring hisappearance in court, with the communityssafety if he were to be released. Hisfinancial status was a key factor in thisbalancing test.

(Pet. Appx. Pages 115-116)(citation omitted). The trial court

weighed several factors both for and against revocation, giving

much weight to Petitioners lack of respect for the law or the

integrity of the judicial process, noting that the valid passport

and bank account were relevant to Petitioners access to means of

flight. (Pet. Appx. Page 117). The judge explained that this factor

was dispelled based upon evidence from the Department of State. Id.

The trial judge revoked Petitioners bond. Id. Petitioner made no

objection to this order revoking bond and certainly did not

thereupon seek recusal of the court. Instead, he filed a second

motion seeking bond, to be decided by the very same judge.


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A hearing was held on June 29, 2012, upon, inter alia,

Petitioners motion to reset bond. (Pet. Appx. Pages 118,132).

Petitioner presented the testimony of an accountant regarding the

monies owed by Petitioner and his wife as well as the incoming

funds from the website account which had a net total worth of

$197,567.91. (Pet. Appx. Pages 135-144). There were seven or eight

transfers of money from the PayPal account into Petitioners

account in increments less than $10,000.00; for example, in amounts

of $9,999.00 and $9,000.00. (Pet. Appx. Pages 139,149,151). Those

same funds were then transferred into Shellie Zimmermans accounts

and then, a couple days later, transferred back into Petitioners

account which then found their way into counsels trust account.

(Pet. Appx. Pages 141,142-143).

On cross-examination of the accountant, the State inquired

whether the accountant would ever refer to $9,000.00 as nine

dollars. (Pet. Appx. Page 145). The accountant indicated he would

not and agreed with the State that in doing so, the only conclusion

would be that the persons were speaking in code. Id. On April 17,

2012, Petitioner had approximately $80,000.00 in his account, while

his wife had $50,000.00, for a total of $132,000.00. (Pet. Appx.

Page 153). On April 17th, money was transferred from Petitioners

account to his wifes account so that less than $20,000.00 was left

in Petitioners account and his wifes account reflected$110,000.00. (Pet. Appx. Page 154). Further transfers were made on

April 18th so that Petitioners account showed a balance of about

$10,000.00, and the wifes account reflected a balance around


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$120,000.00. (Pet. Appx. Pages 154-155). More money was transferred

out of Petitioners account before the bond hearing and the money

was returned to Petitioners account after the bond hearing. (Pet.

Appx. Pages 155-156). The accountant agreed this was done to make

it appear that he didnt have the money. (Pet. Appx. Page 157).

The money in the PayPal account was transferred through

Petitioners e-mail account with a password, so whoever had access

to Petitioners e-mail and password was the person transferring the

funds. (Pet. Appx. Page 161).

The defense presented other evidence and then indicated it was

counsels intent to allow Petitioner to speak to the court without

being subject to cross-examination. (Pet. Appx. Pages 229,230). The

State objected to being foreclosed from cross-examination. Id. The

judge suggested this was a back-door attempt to avoid some harsher

penalties pursuant to section 903.035, but counsel denied trying to

back-door it. (Pet. Appx. Pages 230,232). Counsel suggested the

trial court could inquire after Petitioner made his statement, but

the judge stated that the State should have the opportunity to

question Petitioner since this issue is not personal to the judge,

but has to do with what he did to the system and the process. (Pet.

Appx. Pages 230-231). Thus, the judge concluded, Petitioner could

testify but he would be subject to cross-examination. (Pet. Appx.

Page 231). However, Petitioner was also free to invoke his FifthAmendment right. (Pet. Appx. Page 232). The State made it clear it

wanted the opportunity to cross-examine Petitioner. Id.

After consultation, the defense did not call any more


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witnesses. Id. Upon argument of counsel, the judge indicated it

would await the additional evidence and make a ruling. (Pet. Appx.

Pages 232-252).

Less than a week later, on July 5, 2012, the trial court

entered a lengthy order setting bail. (Pet. Appx. Pages 254-261).

The questions before the court were whether a defendant is entitled

to bail when he presents false testimony at a prior bond hearing

and what recourse there is when a defendant has shown a blatant

disregard for the judicial system. (Pet. Appx. Page 255). The trial

court, echoing statements which had been made to various media

outlets by Petitioners counsel regarding Petitioner having been

less than fully candid with the court, (Appendix E, Page 8), held:

Under any definition, the Defendant hasflouted the system. Counsel has attempted toportray the Defendant as being a confusedyoung man who was fearful and experienced amoment of weakness and who may also have actedout of a sense of betrayal by the system.Based upon all of the evidence presented, thisCourt finds the opposite. The Defendant hastried to manipulate the system when he hasbeen presented the opportunity to do so. He isan adult by every definition; Trayvon Martinis the only male whose youth is relevant tothis case. The Defendant has taken courses incriminal justice with the intention ofbecoming a police officer, an attorney, ajudge, or a magistrate like his father. He hasbeen arrested before, having entered andsuccessfully completed a pre-trialintervention program. He has also obtained aninjunction and had an injunction entered

against him. The injunction against him hasobviously been dissolved at some point for himto have validly obtained a permit to carry thefirearm used to shoot Trayvon Martin. He alsohad the wherewithal to set up a website tocollect donations to help defray the costs ofhis defense. Thus, before this tragic


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incident, the Defendant had a verysophisticated knowledge of the criminaljustice system over and above that of theaverage, law-abiding citizen.

Moreover, any sense of betrayal would be

unreasonable. He was cooperative with theSanford Police Department in that he did givenumerous statements upon request. The Statenotes that his stories changed each retelling,but on the surface he should be deemed to havebeen cooperative. However, he clearlyunderstood that he was being investigated forcommitting a homicide and, while he believesthat he was justified in his actions, therehas been nothing presented which indicatesthat he was misled into believing that hewould not be charged with a crime. Contrary tobeing betrayed, the Defendant received normal,

reasonable treatment and was grantedreasonable bail.

Contrary to the image presented by theDefendant not by the evidence but only byargument of counsel, it appears to this Courtthat the Defendant is manipulating the systemto his own benefit. The evidence is clear thatthe Defendant and his wife acted in concert,but primarily at the Defendants direction, toconceal their cash holdings. They spoke inrudimentary code to conceal the true amount ofmoney they were dealing with. Adam Magill, theDefendants forensic accounting expert, didnot dispel this Courts concern that theDefendant was seeking to hide assets. Headmitted that one interpretation of theDefendants actions was to hide money, butalso stated that it was not a very effectiveway to do so because all of the banktransactions were traceable. The Defendantalso neglected to disclose that he had a validsecond passport in his safe deposit box.Notably, together with the passport, the moneyonly had to be hidden for a short time for him

to leave the country if the Defendant made aquick decision to flee. It is entirelyreasonable for this Court to find that, butfor the requirement that he be placed onelectronic monitoring, the Defendant and hiswife would have fled the United States with atleast $130,000 of other peoples money. The


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fact that they have spent the moneyresponsibly (i.e., without going out toexpensive dinners or splurging onnonessentials) is of no consequence in thisanalysis. The Defendant didnt present anywitness to affirmatively state that the

Defendant has not received funds from anyother source.

(Pet. Appx. Pages 255-256). The trial court, while admitting the

analogy was not exact, compared Petitioners deception at the bond

hearing to violating a bond condition. (Pet. Appx. Pages 256-258).

The court found its discretion limited by State v. Paul, 783 So. 2d

1042 (Fla. 2001). (Pet. Appx. Pages 257-258). The court addressed

each of the factors set forth in section 903.046(2), Florida

Statutes, and concluded that a bond of $1,000,000.00 was fair based

upon the changed circumstances. (Pet. Appx. Pages 258-261).

In his Motion to Disqualify Trial Judge dated July 13, 2012,

Petitioner alleges he has a reasonable fear he cannot get a fair

trial or stand your ground hearing in that the trial courts order

setting bail included gratuitous, disparaging remarks about Mr.

Zimmermans 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. Zimmermans

head the threat of future contempt proceedings. (Pet. Appx. Page

266-274). The State filed a response to the motion arguing that the

allegations were legally insufficient and that some of the facts

asserted in the motion were inaccurate, misleading or incomplete.

(Appendix E).

The trial court issued an order on August 1, 2012, denying the


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motion as legally insufficient. (Pet. Appx. Pages 280-281). In a

footnote, the trial court noted that this was not the first motion

to disqualify a judge filed by Petitioner. (Pet. Appx. Page 280).

Petitioner had filed a motion to disqualify the first judge

assigned to the case on the basis that the judge was related to an

interested party. Id. However, the first judge found the grounds

legally insufficient in that she did not have an interest that

could be substantially affected, nor was there any allegation that

she would be exposed to extra-judicial information because of her

husbands employment. Id. As such, arguably, the first judge

disqualified herself pursuant to subsection Florida Rule of

Judicial Administration 2.330(d)(1), rather than (d)(2). Id. Yet,

in an abundance of caution, the successor trial judge applied the

standard for an initial motion to disqualify, rather than a

successive motion. Id.

On August 13, 2012, Petitioner filed a petition for writ of

prohibition seeking review of the order denying the motion to

disqualify. On August 14, 2012, this Court issued its order to

respond to the Petition for Writ of Prohibition.

MERITS

The writ of prohibition is an extraordinary remedy by which a

court may prevent a lower court from acting outside of its

jurisdiction. Mandico v. Taos Construction, Inc., 605 So. 2d 850,853 (Fla. 1992). Prohibition is the appropriate avenue for relief

after the denial of a motion to disqualify a trial judge because of

bias or other reasons. Castro v. Luce, 650 So. 2d 1067 (Fla. 2d DCA


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1995). Rule 2.330(d)(1) provides "[a] motion to disqualify shall

show . . . that the party fears that he or she will not receive a

fair trial or hearing because of specifically described prejudice

or bias of the judge . . . ." A judge considering a motion to

disqualify is limited to determining the legal sufficiency of the

motion itself and may not pass on the truth of the facts alleged.

Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); Fla. R. Jud.

Admin. 2.330(f).

The standard for viewing the legal sufficiency of a motion to

disqualify is whether the facts alleged, which must be assumed to

be true, would cause the movant to have a well-founded fear that he

or she will not receive a fair trial at the hands of that judge.

See Gore v. State, 964 So. 2d 1257 (Fla. 2007); see also 38.10,

Florida Statutes (2011); Fla. R. Jud. Admin. 2.330(d)(1). A motion

to disqualify will be dismissed as legally insufficient if it fails

to establish a well-grounded fear on the part of the movant that he

will not receive a fair hearing. Griffin v. State, 866 So. 2d 1,

11 (Fla. 2003). Moreover, "mere subjective fear[] of bias will

not be legally sufficient, rather, the fear must be objectively

reasonable." Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005)

(quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)).

The standard of review of a trial judge's determination on a

motion to disqualify isde novo

. Chamberlain v. State, 881 So. 2d1087, 1097 (Fla. 2004), cert. denied, 544 U.S. 930 (2005). Whether

the motion is legally sufficient is a question of law. Barnhill v.

State, 834 So. 2d 836, 843 (Fla. 2002).


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However, where a previous motion to disqualify has been

granted pursuant to subdivision (d)(1), a successor judge shall not

be disqualified unless the successor judge rules that he or she is

not fair or impartial and may rule on the truth of the allegations

in the motion. See Fla. R. Jud. Admin. 2.330(g). An order denying

a motion to disqualify a successor judge is reviewed under an abuse

of discretion standard. King v. State, 840 So. 2d 1047 (Fla. 2003).

Legal sufficiency:

To warrant recusal, a motion for disqualification must

concretely allege a well-founded, reasonable fear on the part of

the defendant that he or she will not receive a fair trial before

a particular judge. See Asay v. State, 769 So. 2d 974, 980 (Fla.

2000); Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998); Jackson

v. State, 599 So. 2d 103, 107 (Fla. 1992). A judge is not required

to abstain from forming mental impressions and opinions during the

course of the presentation of evidence. Mobil v. Trask, 463 So. 2d

389, 390 (Fla. 1st DCA 1985). Here, assuming the allegations are

true as required by the rule, the complaints raised by Petitioner

are legally insufficient.

The term legal sufficiency encompasses morethan mere technical compliance with the ruleand the statute. The standard for viewing thelegal sufficiency of a motion to disqualify iswhether the facts alleged, which must beassumed to be true, would cause the movant to

have a well-founded fear that he or she willnot receive a fair trial at the hands of thatjudge. See Fla. R. Jud. Admin. 2.330(d)(1).Further, this fear of judicial bias must beobjectively reasonable. See State v. Shaw, 643So. 2d 1163, 1164 (Fla. 4th DCA 1994). Thesubjective fear of a party seeking the


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disqualification of a judge is not sufficient.See Kowalski v. Boyles, 557 So. 2d 885 (Fla.5th DCA 1990). Rather, the facts and reasonsgiven for the disqualification of a judge musttend to show the judge's undue bias,prejudice, or sympathy. Jackson v. State, 599

So. 2d 103, 107 (Fla. 1992); see also Riverav. State, 717 So. 2d 477, 48081 (Fla. 1998).Where the claim of judicial bias is based onvery general and speculative assertions aboutthe trial judge's attitudes, no relief iswarranted. McCrae v. State, 510 So. 2d 874,880 (Fla. 1987). Parker, 3 So.3d at 982.

Krawczuk v. State, 37 Fla. L. Weekly S270 (Fla. Apr. 12, 2012).

In Waterhouse v. State, 792 So. 2d 1176, 1192(Fla. 2001), the trial judge issued a muchmore egregious statement to the Florida Parole

and Probation Commission to the effect thatthe subject is a dangerous and sick man andthat many other women have probably sufferedbecause of him. We rejected the claim thatsuch a statement by a trial court judgeprovided a basis for the recusal of the trialjudge in subsequent proceedings:

[T]he comment to the Commission didnot constitute a prejudgment of anypending or future motions that thedefendant might file, and was notmade outside the official post-sentence investigative process in amanner indicating a predisposed biasagainst the defendant. Given thefacts in this case, the statement tothe Commission indicates nothingmore than the judge's opinion afterhaving heard evidence relating totwo exceedingly cruel and brutalmurders of women who were sexuallyassaulted. The circumstances ofthese murders, coupled withWaterhouse's own admission that he

had a problem with sex andviolence, would lead any reasonableperson to conclude that Waterhouseis a dangerous and sick man.

Id. at 1195; see also Rivera v.State, 717 So. 2d 477, 480-81 (Fla.


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2Pursuant to Rule of Judicial Administration 2.160(e), amotion for recusal must be filed within a reasonable time not toexceed 10 days after discovery of the facts constituting thegrounds for the motion. Clearly some of these claims, filed morethan ten days after the complained-of rulings, are untimely.

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1998) (finding that the writtenresponse by the trial judge to aparole commission inquiry that I aminalterably opposed to anyconsideration for Executive Clemencyand I believe the sentence of the

court should be carried out as soonas possible was insufficient todisqualify the judge from furtherpresiding over the case).

Doorbal v. State, 983 So. 2d 464, 476-77 (Fla. 2008).

Petitioner complains about rulings in the past in his

background section, but it is well established that [t]he fact

that the judge has made adverse rulings in the past against the

defendant, or that the judge has previously heard the evidence, or

allegations that the trial judge had formed a fixed opinion of the

defendant's guilt, even where it is alleged that the judge

discussed his opinion with others, are generally considered

legally insufficient reasons to warrant the judge's

disqualification. Rivera, 717 So. 2d at 481 (quoting Jackson v.

State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d

494, 496 (Fla. 2d DCA 2003)(It is well established that a trial

courts prior adverse rulings are not legally sufficient grounds

upon which to base a motion to disqualify). Moreover, any objection

to some of these rulings is untimely2. As such, the background

complaints regarding past rulings by the trial court, especially

those that were also contrary to the States position, are legally


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insufficient and untimely.

However, Petitioners primary complaints are with the trial

courts findings in the order granting bond that he manipulated the

system and demonstrated a disregard for the system. Of course, this

finding was made after it was established that Petitioner and his

wife knew they had received donations of more than $200,000.00 from

a website prior to the first bond hearing, and that they had moved

the money from Petitioners account to his wifes account before

the hearing and then back to Petitioners account after the bond

hearing. Furthermore, it was unrefuted that Shellie Zimmerman knew

to the contrary when she testified under oath at the first bond

hearing that neither she nor her husband had any income and no

major assets that could be liquidated to assist in raising money

for a bond. (Pet. Appx. Pages 370-371). Mrs. Zimmerman also

indicated she was aware the defense was seeking to have her husband

declared indigent because they had no financial means to assist in

paying for costs. (Pet. Appx. Page 371).

It is unrefuted that this testimony was, at best, less than

honest if not intentionally misleading especially in light of the

audiotapes which reveal Shellie Zimmerman and Petitioner

discussing, prior to the first bond hearing, the website money at

the jail in code by referring to the amounts, for example, as nine

dollars rather than $9,000.00. Defense counsel conceded during hisargument in the second bond hearing that they didnt tell you the

truth about the money. (Pet. Appx. Page 251). Thus, Petitioner has

shown himself willing to play the system, if possible. In its order


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setting bond, the trial court simply chastised Petitioner in an

attempt to get his attention so that it would not happen in the

future, just like a judge chastising a defendant who has violated

a bond condition or violated his probation.

Petitioner also asserts that the court continues to hold

over Petitioner the possibility of contempt proceedings. (Pet.

Appex. Pages 12-13). However, examination of the courts order

indicates that Petitioner has taken this reference out of context;

the courts reference to its declination to exercise contempt

powers comes directly after a discussion of the Third District

Court of Appeals opinion in State v. Washington, 37 Fla. L. Weekly

D1535 (Fla. 3d DCA June 27, 2012), wherein the list of potential

remedies of bond conditions, which include the arrest and

commitment of a defendant. . . harsher conditions of pretrial

release. . . increase the amount of bond. . . pretrial detention.

. . [or] direct or indirect criminal contempt. Id. (Pet. Appendix

Page 350). Immediately after quoting this language from Washington,

the trial court discussed each alternative including, but not

limited to, the possibility of contempt proceedings. Id. The so-

called threat, if there was one, was contained in the language

taken verbatim from Washington.

Notably, the trial court did not label Petitioner a liar;

instead, the court found he had manipulated the system. Whilegranting the motion to set a bond, the judge also chastised

Petitioner for having allowed misrepresentations about his passport

and financial situation to be presented to the court, facts which


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are unrefuted and which clearly affected the trial courts ruling

on bond. This does not require disqualification of the trial judge.

See, e.g., Bert v. Bermudez, 37 Fla. L. Weekly D1465 (Fla. 3d DCA

June 29, 2012)(trial judges admonitions of counsel and threat to

hold counsel in contempt did not require disqualification as judge

expressed no views as to credibility, made no comment suggesting he

had pre-judged any issue, harbored any bias, or said anything to

support finding that the petitioners fear is reasonable).

According to Petitioner, the comments of which he complains

were gratuitous. Even assuming this to be the case,

[g]enerally, mere characterizations andgratuitous comments, while offensive to thelitigants, do not in themselves satisfy thethreshold requirement of a well-founded fearof bias or prejudice. See Oates v. State, 619So. 2d 23, 26 (Fla. 4th DCA), review denied,629 So. 2d 134 (Fla. 1993); Nassetta v.Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA1990). "A judge may form mental impressionsand opinions during the course of presentationof evidence, as long as she does not prejudgethe case." Brown v. Pate, 577 So. 2d 645, 647(Fla. 1st DCA 1991)."

Wargo v. Wargo, 669 So. 2d 1123, 1124-1125 (Fla. 4th DCA 1996).

Remarks regarding a court's feelings after having heard

evidence, even if gratuitous, are not grounds for recusal unless

there is an objectively reasonable basis for concluding that the

judge is personally biased or will in the future fail to be

impartial.The facts and reasons given fordisqualification of a trial court judge mustbe such that the actions of the trial courtjudge show personal bias or prejudice. SeeLevine v. State, 650 So. 2d 666 (Fla. 4th DCA


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1995). The remarks of the trial court judge inthe present case fail to demonstrate personalbias or prejudice and cannot be interpreted ascreating in the petitioners an objectivelyreasonable well-grounded fear that thepetitioners will not receive a fair and

impartial trial.

The facts here are more analogous to the caseof Nassetta v. Kaplan, 557 So. 2d 919 (Fla.4th DCA 1990), where, in response to a motionto reduce bail, the trial judge's comment,that he did not care whether the lawyer,charged with fraud and grand theft, got out ofjail, did not require recusal. In ruling on amotion for disqualification, the FourthDistrict held that the trial judge's"gratuitous remarks" did not require recusal.See Nassetta, 557 So. 2d at 920; see also

Benson v. Tharpe, 685 So. 2d 1363, 1364 (Fla.2d DCA 1996) (holding that judge's commentthat his "hands were tied" did not establishthat he was predisposed to impose adultsanctions for juveniles, but meant that hisrulings were contingent upon a decision by theappellate court). Likewise, the remarks of thetrial judge here, "I'm not going to bethreatened" and "I don't care what the ThirdDistrict does with this case," do not requiredisqualification. The first is a gratuitouscomment showing the judge's attempt to remainneutral, and the second indicates that he willabide by a decision from this Court directinghim on whether to set the case for trial.Neither comment is grounds for the granting ofa petition for writ of prohibition."

Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA

2008)(footnote omitted).

Likewise, we recently pointed out that a "mere'subjective fear' of bias will not be legallysufficient, rather, the fear must be

objectively reasonable." Arbelaez v. State,898 So. 2d 25, 41 (Fla. 2005) (quoting Fischerv. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). Wedo not find Mansfield's allegations of fear tobe objectively reasonable. See also Asay v.State, 769 So. 2d 974 (Fla. 2000). Our casessupport the trial court's denial of the motion


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to disqualify, and we affirm thetrial judge'sorder.

Mansfield v. State, 911 So. 2d 1160, 1171 (Fla. 2005).

Moreover, the authority relied upon Petitioner is

distinguishable in that the judges in those cases stated

categorically that they did not find the party credible and would

not believe the party either now or in the future. Brown v. St.

George Island, Ltd., 561 So. 2d 253, 257 (Fla. 1990)(Judge Rudd,

without having heard testimony from Stocks, tossed the affidavit

back and said, If [the party] were here I wouldn't believe him

anyway.); Campbell Soup Co. v. Roberts, 676 So. 2d 435 (Fla. 2d

DCA 1995)(After examining the affidavit, [the court] expressed

doubt as to its reliability, commenting that [I]f the president

of Campbell Soup were to file a similar affidavit, I don't know how

much credence I would give it if it had the same things in it.);

Owens-Corning Fiberglas Corporation v. Parsons, 644 So. 2d 340, 341

(Fla. 1st DCA 1994)(trial judge made a comment about a party's

believability with the court is about as thin as a balloon); and

Deauville Realty Co. v. Tobin, 120 So. 2d 198, 202 (Fla. 3d DCA

1960), cert. denied, 127 So. 2d 678 (Fla. 1961)(judge stated post-

trial that he would not believe an agent of one of the parties who

the judge believed had lied on the stand). Here, there has been no

such statement by the trial judge and the unrefuted truth is that

Petitioner did allow others to mislead the court into granting him

a very beneficial bond which authorized him to leave the State

despite being charged with second degree murder and facing a


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potential life sentence.

Similarly, the judge mentioned the courts contempt power and

section 903.035(3), Florida Statutes, in an attempt to get

Petitioners attention that his actions in allowing others to

mislead the court about his passport and financial situation

constituted a manipulation of the system and to ensure it would not

happen again. Notably, the judge ruled in Petitioners favor and

granted him a bond revealing that the court is fully capable of

following the law even after finding Petitioner manipulated the

system. Cf. Brown, 561 So. 2d at 257 n. 7 (We hasten to add that

our holding should not be construed to mean that a judge is subject

to disqualification...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...there must be a

clear implication that the judge will not believe the complaining

partys testimony in the future.). The comments now complained of

certainly do not indicate any predisposition as to future motions,

and indicate nothing more than the judges opinion after having

heard evidence.

None of the comments by the trial court rise to the level of

being legally sufficient to establish an objectively reasonable

fear by Petitioner that he will not receive a fair trial by the

judge. Instead, the judge was simply giving Petitioner a welldeserved tongue lashing for allowing others to mislead the court

about his passport and his financial situation. Moreover, the trial

court did not rule against Petitioner. The judge again set a bond


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for Petitioner, and Petitioner is currently out on bond. Thus, the

grounds listed by Petitioner in his motion are facially

insufficient.

Reducing the claim to its true essence, the trial judge set a

bond on a defendant charged with murder, the judge learned that

circumstances were not as previously represented, the judge revoked

bond, and, upon motion of Petitioner, set a new higher bond. In a

nutshell, when new facts were revealed, the trial judge increased

the bond, the defense is unhappy with that ruling, and filed a

motion to disqualify the judge who set the higher bond.

WHEREFORE, based upon the above, Respondent submits that the

motion to disqualify in this case is legally insufficient and,

thus, the trial court properly denied the motion. The petition for

writ of prohibition should be denied.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

Response to Petition for Writ of Prohibition and Index to Appendix

has been furnished via delivery by U.S. Mail to counsel for

Petitioner,Mark OMara, Esquire, at OMara Law Group, 1416 East

Concord Street, Orlando, Florida 32803, and Donald R. West,

Esquire, at Donald West Law Group, P.A., 636 West Yale Street,

Orlando, Florida 32804; the Honorable Kenneth R. Lester, Jr.,

Circuit Judge, Seminole Criminal Justice Center, 101 BushBoulevard, Sanford, Florida 32773; and Bernie de la Rionda,

Assistant State Attorney, Office of the State Attorney, 220 East

Bay Street, Jacksonville, Florida 32203, this 23rd day of August,


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2012.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this

response is 12-point Courier New, in compliance with Fla. R. App.

P. 9.100(l).

Respectfully submitted,

PAMELA JO BONDIATTORNEY GENERAL

_________________________PAMELA J. KOLLERASSISTANT ATTORNEY GENERALFla. Bar. No. 0775990444 Seabreeze Blvd.5th FloorDaytona Beach, FL 32118(386) 238-4990Fax (386) [email protected]

COUNSEL FOR RESPONDENT

Documents

George Zimmerman Case- Response by FloridaDA to Request for Recusal