R.I.P. Senator Specter, You Will Be Missed

/25 Comments/in , , , , , , , /by

The Snarlin has ceased; via CBS News:

US Senator Arlen Specter, whose political career took him from Philadelphia City Hall to the US Congress, died Sunday morning at his home in Philadelphia at the age of 82 from complications of non-Hodgkins Lymphoma. He was born February 12, 1930.

His career was marked by what the pundits and Specter himself called “fierce independence.” But long before Specter ever stepped onto the Senate floor in Washington DC, he made it into national prominence by serving as assistant counsel for the Warren Commission, which investigated the 1963 assassination of Pres. John F. Kennedy.

Specter postulated the controversial “single-bullet theory” that was eventually embraced by the panel and still stands to this day, despite the cry of conspiracy theorists who say there was more than one gunman in Dallas that November day.

“Admittedly a strange path for a bullet to take, but sometimes truth is stranger than fiction,” Specter said.

We have had a complicated relationship with Arlen Specter here at Emptywheel, sometimes castigating him, sometimes praising him, sometimes laughing at him, sometimes laughing with him. Specter engendered all those things. But I always sensed a very decent heart beating underneath Specter’s surface, even if it was all too often masked by his votes for, and often vociferous support of, ever more destructive policies of the right.

For this, Specter earned the nickname “Scottish Haggis” here in the annals of Emptywheel. The term had its root in Mr. Specter’s predilection for Scottish Law, and goes all the way back to the original incarnation at The Next Hurrah. For a number of reasons, offal and otherwise, it was a nickname that stuck and seemed appropos and seemed to reflect the complicated nature of Senator Specter.

On a personal note, I did not have an abundance of interaction with Sen. Specter and his office, but in that which I did have, I found him and his office to be beyond both kind and professional. One instance stands head and shoulders above the others, and surrounded the Obama scuttled nomination of Dawn Johnsen to be head of the Office of Legal Counsel (OLC). It was my contention from the outset that the whip count votes were there to confirm Professor Johnsen for the job she was perfect for. And, in the roiling aftermath of the Bush/Cheney unitary executive excesses, the country desperately needed Johnsen’s intellectual sense of honesty and Constitutional integrity.

The only reason Dawn Johnsen did not get confirmed as OLC head was Barack Obama used her as false bait and cat nip for the more noisy progressive liberals. It was a glaring sign of depressing things to come from the not nearly as Constitution minded Barack Obama as had been pitched in his election run. Not only could Johnsen have been confirmed, as I pointed out before, she could also have been recess appointed by Obama. Despite all the ridicule I took at the time, that point has been proved conclusively by the later recess appointment of Richard Cordray to be head of the CFPB (another instance of Obama using a supremely qualified progressive, Elizabeth Warren, as bait and then hanging her out to dry).

The point was never that Dawn Johnsen couldn’t be confirmed, it was that Barack Obama and the insiders of his White House did not want her confirmed into leadership of the OLC. I knew that from talking to several inside the DOJ and Senate Judiciary Committee, but that was all off the record. When I found an obscure old comment from Arlen Specter indicating he was willing to support a cloture vote for Johnsen as far back as his second meeting with Dawn Johnsen on or about May 12, 2009, it was by then an old, and quite obscure comment. Specter could have walked it back or dissembled on the subject.

Arlen Specter didn’t walk it back or dissemble, instead he personally confirmed it to me. With the already in the bag vote of Sen. Richard Lugar, that was the 60 votes for Dawn Johnsen at OLC. Specter knew it would infuriate both the GOP and the Obama White House, and he knew exactly what story I was writing. He stood up. Oh, and, yes, he knew about “Scottish Haggis” too. The man had a sense of humor.

For the above vignette, and several others, I will always have a soft spot in my heart for Snarlin Arlen Specter. His life and work in government spanned over five decades, he has got my salute today.

Sen. Specter repeatedly had to fight off serious cancer, and he did so with aplomb, courage and his good humor. He also was a tireless champion for the NIH and funding of cancer and stem cell research. When confronted with the last battle, the one which finally took him, Specter was upbeat, defiant and determined to get back to his part time hobby of stand up comedy. May the Scottish Haggis have many laughs wherever he may travel.

Share this entry

It’s Actually Not about the West Wing–It’s about Rule of Law

/11 Comments/in , /by

[youtube]v52FLMOPSig[/youtube]

I have a confession: I never, ever watched the West Wing. I don’t think I’ve watched a single episode.

So many of you will probably enjoy–or at least understand–this video more than me.

But if it has gotten your attention, please consider donating to the woman it supports: Bridget Mary McCormack.

McCormack is a University of Michigan Professor and Law School Dean for Clinical Affairs running for MI’s Supreme Court.

I’ve met McCormack just once: at a Michigan ACLU Dinner. I met her through an old ultimate frisbee friend, Dave Moran; the two of them co-direct University of Michigan’s Innocence Clinic (which specializes in cases where there’s not exonerating DNA evidence).

And if that’s not enough to convince you she supports the same things this blog does, check out the “Rule of Law” tab on her website.

Bridget Mary McCormack is committed to the rule of law. She understands the responsibility of courts to apply the law to the facts of every case. Our law is grounded in the Constitution—the bedrock of our legal system that all judges must follow.

Specific laws are made by the political branches of government, not by judges, and courts are duty-bound to apply those laws as written by the legislature. Michigan citizens and businesses alike must be able to count on our courts as the branch of government that provides stability and consistency for our legal system. Judges therefore must interpret and apply the law neutrally to the cases before them, and not put their thumb on the scales of justice to reflect their own opinions or beliefs. This is essential for our State’s highest court.

[snip]

Bridget understands that our legal system is designed to provide stability and protection for Michigan’s citizens. That system works best when judges do the hard work necessary to resolve complex legal issues. She is committed to work tirelessly to ensure that the Michigan Supreme Court gets it right.

Bridget Mary McCormack has–as I understand it–a kickass ad. But it doesn’t even begin ot address what a remarkable person she’d be on MI’s Supreme Court.

If you can afford it, please consider supporting McCormack.

Update: Somehow last night I replaced one Irish name with another. Fixed now.

Share this entry

Mitt Romney Guilty Of A Hate Crime

/20 Comments/in , , , /by

Yes, I am absolutely serious about the implication in the title of this post.

I was scrolling through my twitter feed about lunchtime here, after doing some work, and found this exchange between two people I follow, Carrie Johnson and Dan Froomkin:

Well, after reading the article Froomkin referred to in his tweet, an AP report on an Amish hate crimes conviction handed down today, I thought there were clear parallels with Mitt Romney’s known pattern of misconduct. Here is the key gist of the AP report on the Amish hair cutting hate crime:

Sixteen Amish men and women were convicted Thursday of hate crimes including forcibly cutting off fellow sect members’ beards and hair…….A federal jury found Samuel Mullet Sr. guilty of orchestrating the cuttings of Amish men’s beards and women’s hair last fall in attacks that terrorized…

Hmmmm, where do I remember a completely similar, in every way, violation of a human individual’s sanctity and rights to individualism and free expression, not to mention of course, forced hair cutting, under the Constitution of the United States? Oh, yes, it was from the once and always juvenile and self entitled Mitt Romney:

Many of today’s principals would be likely to throw the book at a student who pinned down a classmate and clipped his hair, as Republican presidential candidate Mitt Romney did as a high school senior in 1965.

Romney was not disciplined at the time. If such an attack happened in the public schools of 2012, it would probably lead to suspension and might also be referred for expulsion, a number of local school leaders said following a Washington Post report of the incident involving Romney.

Yes, one would hope that “today’s principals” might treat the brutish otherism and hatred of Willard “Mitt” Romney a bit different today. But, seriously, the same intellectual, moral and character deficits that are present now, were present to any competent mind then. Mitt Romney’s hate crime conviction worthy act was not mere misguided words, as so many engaged in at during those times, but instead it was a violent and injurious physical felonious assault. You can call it partisan to say this, and you would be a bloody ignorant and simpering fool to do so. I trust most of you in the national, main stream media, who actually have the time and claimed IQ to actually read this and react intellectually.

This is the “intellect” and “mind” that now seeks to lead the, still, most powerful nation on earth? Mitt Romney would be headed to federal prison if past were but falsely discarded prologue.

Mitt Romney is now, and always has been, a self important, self entitled, brutish chameleon that blithely does whatever he wants, and is willing to say whatever it takes, to get over on others. That is not a leader; it is the mark of a congenitally entitled power mad, craven, flip flopping, and hollow shill.

It is the mark of a man who is a pliable and troubled soul in need of counseling, and the antithesis of a leader for the enlightened and informed free world. Which also kind of explains Mr. Romney’s craven and supremely self serving attempt to try to capitalize on the death of US ambassador Chris Stevens while the event was still very much in play as an United States foreign relations interest.

That is not the mark of a leader, it is the mark of a cowardly lout. Such was, and is, the best the GOP had to offer in their self proclaimed can’t lose year of destiny.

For any halfway informed citizen, and certainly for the supposedly intelligent members of the political press, the foregoing are some things you ought to consider and report. To report a false horserace that is serving to yourself (as Romney always is to himself) is one thing; but to ignore facts in craven servitude thereof is yet another. I know leading members of the press will see this, where will you go? Have you even the small balls to follow on?

There are choices in the political landscape. They may be constrained to where it is a choice between the lesser of two very much evils. That is indeed the choice before the nation today. The problem is the evils are painted as equal, and that is a lie.

Where will the national press go? I think I know, and I suspect it is to feign ignorance. But just to make the stakes clear, if the national press covered the facts and results of Matthew Shephard, and now are willing, through AP or otherwise, to report on the Amish hair cutting hate crime, then YOU NEED to make the analogy to the current man who is guilty of the same effective conduct and hate crime, and who now seeks to be elected President of the United States.

Really, it is the least you can do national press. Can you keep up national press? Can you truly exercise your duty of fair reportage and duty to the American people? Can you? Show your work.

Can the major media pick up on the resolute similarity, and absolute analogy, of these cases? I am not sure the national media has that root awareness, nor public responsibility in their bones.

It will be interesting to see where the national press really stand. I have no illusions of intelligence in that regard. We shall see.

Gosh, silly me, for condoning, much less expecting, such honesty.

[Impossibly perfect graphic by the one and only twolf. Seriously, twolf is our friend; follow him!]

Share this entry

Hedges NDAA Indefinite Detention Decision Stayed By 2nd Circuit

/11 Comments/in , , , , , /by

As much as I, and most who care about Constitutional protections and Article III courts still having a function in balance of power determinations, the recent 112 page ruling by Judge Katherine Forrest in SDNY (see here and, more importantly, here) had fundamental issues that made review certain, and reversal all but so.

The first step was to seek a stay in the SDNY trial court, which Judge Forrest predictably refused; but then the matter would go to the Second Circuit, and the stay application was formally filed today.

Well, that didn’t take long. From Josh Gerstein at Politico, just filed:

A single federal appeals court judge put a temporary hold Monday night on a district court judge’s ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.

U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge’s injunction until a three-judge panel of the court can take up the issue on September 28.

Lohier offered no explanation or rationale for the temporary stay.

Here is the actual order both granting the temporary stay and scheduling the September 28 motions panel consideration.

This is effectively an administrative stay until the full three judge motions panel can consider the matter properly on September 28th. But I would be shocked if the full panel does anything but continue the stay for the pendency of the appeal.

Share this entry

DOJ Files Appeal: Further Thoughts On Hedges and The Lawfare/Wittes Analysis

/8 Comments/in , , , , , , /by

Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.

I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.

As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.

I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.

Wittes makes three main critiques. The first:

So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power.

Secondly:

Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.

Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:

Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.

First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any Read more →

Share this entry

Chris Hedges et. al Win Another Round On the NDAA

/12 Comments/in , , , , , , , , , /by

You may remember back in mid May Chris Hedges, Dan Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, Birgetta Jonsdottir and the US Day of Rage won a surprising, nee stunning, ruling from Judge Katherine Forrest in the Southern District of New York. Many of us who litigate felt the plaintiffs would never even be given standing, much less prevail on the merits. But, in a ruling dated May 16, 2012, Forrest gave the plaintiffs not only standing, but the affirmative win by issuing a preliminary injunction.

Late yesterday came even better news for Hedges and friends, the issuance of a permanent injunction. I will say this about Judge Forrest, she is not brief as the first ruling was 68 pages, and todays consumes a whopping 112 pages. Here is the setup, as laid out by Forrest (p. 3-4):

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the Read more →

Share this entry

Vilma Vanquishes Goodell & NFL; Saints Players Reinstated

/10 Comments/in , , , /by

There is some early Trash from the National Football League breaking within the last hour. The four New Orleans Saints players suspended in “Bounty Gate”, led by Jonathan Vilma and Scott Fujita, dissatisfied withe the league ruling handed down by Roger Goodell, first filed suit in the Easter District of Louisiana and then appealed to a special appellate panel available under the relatively new collective bargaining agreement.

This afternoon, the special appellate panel unanimously ruled in favor of the players and ordered them reinstated:

The four players suspended by the NFL for their involvement in the New Orleans Saints’ “bounty” program had their suspensions overturned by a collective bargaining agreement appeals panel Friday, NFL Players Association spokesman George Atallah said.

While the suspensions are vacated immediately, NFL Commissioner Roger Goodell can go back and suspend the players if he proves there was an intent to injure. NFL spokesman Greg Aiello said all players are eligible to play, starting with this weekend, until Goodell does so.

“Consistent with the panel’s decision, Commissioner Goodell will, as directed, make an expedited determination of the discipline imposed for violating the league’s pay-for-performance/bounty rule,” Aiello said in a statement. “Until that determination is made, the four players are reinstated and eligible to play starting this weekend.”

Here is a full copy of the written decision.

This is pretty significant news on a lot of fronts. First off, of course, the Saints get two key players back, including Vilma who is the quarterback of their defense and a critical team leader. Secondly, it is a slap in the face to Roger Goodell, and an equally big win for the NFL Players Association. Thirdly, this is an appeal process that the league agreed to and the first time it was taken out for a test spin, they got clobbered by it.

And a rebuke like this could not happen to a more deserving group of arrogant folks (see: refusal to make deal with referees) than the NFL and its owners.

That said, the ruling is not quite as huge a win as you might think at first blush, as it still leaves room for punitive action by Goodell against the players. Here is the key language from the ruling:

While we agree, then, that the Commissioner had jurisdiction to discipline the Players in this case, we are uncertain that the discipline handed down was attributable, in any part, to that aspect of the Program which lies within the exclusive jurisdiction of the System Arbitrator. While we could speculate, it is not clear from the record before us whether the Commissioner had the distinction we draw in mind at the time he disciplined the Players.
…
In light of the serious nature of the penalties imposed, we believe caution is appropriate. Therefore we vacate the Players’ discipline and remand the matter directly to the Commissioner for expeditious redetermination.

What this means is that Goodell can still take punitive action on these players via his “redetermination”, but he is going to have to do it under a provision different than he originally relied on. According to Albert Breer at NFL.com, who did fantastic reporting this afternoon and first posted the written opinion, Goodell will now have to base any punitive action on “intent to injure”, and that is how I read it too. That is a significantly tougher evidentiary burden to prove up legally.

Now the question is will Vilma et. al cut a deal with Goodell or keep fighting? Jonathan Vilma is very bright, and a very proud, tough fellow. It will be interesting to see if he has any inclination to deal. With Judge Berrigan still proceeding in EDLA, and having indicated she would rule in favor of Vilma if she could, I would not bet on Vilma being willing to cut any deals with the Commissioner.

Share this entry

Mess at DHS: The ICE Lady Goeth and Thoughts On The Real Story

/17 Comments/in , , , , /by

As Marcy appropriately pointed out, there was a LOT of news dumped in the waning moments and bustling milieu of a Friday afternoon; not just pending a holiday weekend, but with a press corps still hung over from, and yammering about, the empty chairs and empty suits at the GOP National Convention. I have some comments on the cowardice of justice by DOJ on Arpaio, but will leave that for another time.

But the declination of prosecution of Joe Arpaio was not the only Arizona based story coming out of the Obama Administration Friday News Dump. Nor, in a way, even the most currently interesting (even if it ultimately more important to the citizens of Maricopa County, where Arpaio roams free to terrorize innocents and political opponents of all stripes and nationalities). No, the more immediately interesting current story in the press is that of Suzanne Barr, DHS and Janet Napolitano. Not to mention how the press has bought into the fraudulent framing by a Bush era zealot to turn a garden variety puffed up EEO complaint into a national scandal on the terms and conditions of the conservative, sex bigoted, right wing noise machine.

And what a convoluted tale this is too. It is NOT what it seems on the surface. The complainant referenced in all the national media, James Hayes, had nothing whatsoever to do with the DHS official, Suzanne Barr, who just resigned. There is a LOT more to the story than is being reported. And there are far more questions generated than answers supplied. What follows is a a more fully fleshed out background, and some of my thoughts and questions.

You may have read about this DHS story already, but here is the common generic setup from the mainstream media, courtesy of the New York Times:

The accusations against Ms. Barr came to light as part of a discrimination lawsuit filed by James T. Hayes Jr., a top federal immigration official in New York, against Ms. Napolitano, contending that he had been pushed out of a senior management position to make room for a less-qualified woman and then was retaliated against when he threatened to sue. The lawsuit also accused Ms. Barr of creating “a frat-house-type atmosphere that is targeted to humiliate and intimidate male employees.”

The resignation — amid a three-day holiday weekend sandwiched between the Republican and Democratic national conventions — came at a time when the public was likely paying little attention to events in Washington. But Representative Peter T. King of New York, the Republican chairman of the House Homeland Security Committee, released a statement in which he vowed to continue to scrutinize the matter when Congress returns from its August break.

“The resignation of Suzanne Barr raises the most serious questions about management practices and personnel policies at the Department of Homeland Security,” Mr. King said, adding that the committee would review “all the facts regarding this case and D.H.S. personnel practices across the board.”

The Complaint of James T. Hayes, Jr: So, Suzanne Barr really must have laid one on this Jimmy Hayes chap, right?? Uh, no. Not really. Not at all. Let’s take a look at the actual complaint as legally pled. These are my thoughts, as a Read more →

Share this entry

Immunizing Crimes: Blankfein, Zirbel, and Arpaio, but Whither Corzine?

/23 Comments/in , , , , /by

DOJ has been doing a lot of immunizing of late. There’s Lloyd Blankfein, who not only ripped off his clients with “one shitty deal,” he then lied to Congress about it. There’s Matt Zirbel,* the CIA officer who had Gul Rahman doused with water and left to freeze to death in the Salt Pit. And there’s Joe Arpaio, who used the Maricopa County Sherriff’s office to investigate his political enemies.

DOJ immunized all these men in the last month, in spite of a vast amount of publicly available evidence clearly showing their crimes. And while DOJ had the courage to announce their decision about Blankfein and Goldman Sachs on a typical news day, not so their announcements about Zirbel and Arpaio–DOJ slipped those announcements into the journalistic distraction of Paul Ryan’s dishonest speech and Clint Eastwood’s empty chair, and the more generalized distraction of an imminent holiday weekend.

But with these grants of immunity, DOJ cleared the board of most of the politically contentious cases of immunized criminals just in time for election season. The Goldman banksters could donate with no worries, the NatSec types wouldn’t pull an October surprise, and Republicans couldn’t claim Arpaio was caught in a witch hunt because of the witch hunts he himself conducted.

DOJ cleared most, though not all, of the politically contentious cases they plan to clear though. The exception may prove the rule.

Read more →

Share this entry

Appeals Court Grants Zimmerman Judge Disqualification Motion

/17 Comments/in , /by

I have long maintained the George Zimmerman criminal case ongoing in Florida, and the nature of Florida law and procedure, is far different than most in the media and blogosphere understand. The initial investigation was not particularly “botched” at all, the actual known facts and statements do not indicate particular racial animus on Zimmerman’s part, the known facts and statements relating to the actual physical “confrontation” are far different than generally painted and arguably do indicate Martin was the aggressor, and Florida law is rather, shall we say, unique in many regards.

One of the areas I have delved into, although not here, is the disqualification motion made by Zimmerman defense attorney Mark O’Mara. The motion was aimed at Judge Lester and, go figure, was denied by him. But O’Mara appealed via a Writ of Prohibition and, what do you know, the Florida Court of Appeals For The Fifth District just granted the writ and ordered Judge Lester to recuse himself:

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition.

Florida Rule of Judicial Administration 2.330 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.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well- founded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)). Although many of the allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test,1 and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

It was not unanimous, but was, rather, a 2-1 decision. The State of Florida, now operating for appellate purposes, through AG Pam Biondi’s office, may well file a petition for review with the Florida Supreme Court, we shall see.

Here is what I said in another forum on July 16th, just after the original motion to disqualify was lodged:

It is a Florida case and, yes, their law is a bit different. But what Lester has done would be outrageous in any jurisdiction. Denial of a defendant’s due process right to be present for a non-emergency bond revocation is a denial of due process anywhere, even in New York I would hope.

That said, in most jurisdictions, including here [where I practice], I think this motion to disqualify would not stand a great chance of success, although I certainly would file it for tactical purposes and to make a record of objection to the court’s conduct.

In Florida, however, there is a very good chance the motion is granted. Indeed, there is an argument it MUST be granted.
Fla. R. Jud. Admin. 2.330 (2012):

(f) Determination–Initial Motion. –The judge against whom aninitial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.

That is exactly the subsection O’Mara filed under and, although there was a previous disqualification of a judge in this case, it was under a different subsection. The burden in FL, believe it or not, is whether or not the defendant – Zimmerman himself – believes the judge will not be fair and impartial. That sure as hell is not the standard here [where I practice], but it is there, and it is very easily made in Zimmerman’s case due to the gratuitous editorializing done by Judge Lester. If Lester is so impertinent as to refuse the motion, I think it would be appealed and reversed.

I have delved rather deeply into the Zimmerman fact set and, as I said above, it really is quite a Read more →

Share this entry