I recently blogged on my website, www.mayberryfirm.com, about the Motion to Recuse Judge Jessica Recksiedler in the Trayvon Martin case.
It seems that's old news as she's voluntarily withdrawn from the case but I've posted this blog anyway to show the considerations a Judge makes when faced with such a motion.
We’ve learned George Zimmerman’s attorney plans on filing a motion to recuse sitting Circuit Court Judge Jessica Recksiedler. Judge Reckseidler is married to a partner of Orlando defense attorney Mark Nejame, an attorney once contacted by Zimmerman.
Nejame referred the case to current attorney Mark O’Mara and will act as a contributor to CNN throughout the duration of the case. It seems O’Mara will make this request so as to prevent any appealable issue that could be asserted in that Judge Recksiedler is through several levels of separation, connected to Zimmerman’s defense team.
From a practical standpoint, this is not something that causes my eyebrow to raise, though I can certainly see where O’Mara would make the move so as to chop off at the knees, any appeal on this issue the State would have. In Florida, pursuant to Florida Rule of Judicial Administration 2.330 a motion to disqualify a judge requires the following:
RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES
(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court.
(b) Parties. Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.
(c) Motion. A motion to disqualify shall:
(1) be in writing;
(2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification;
(3) be sworn to by the party by signing the motion under oath or by a separate
(4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions.
The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.
(d) Grounds. A motion to disqualify shall show:
(1) 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; or
(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.
(e) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.
(f) Determination — Initial Motion. The judge against whom an initial 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. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.
(g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.
(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.
(i) Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.
(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.
No doubt subsection (d)(2) is where O’Mara will hang his hat. His motion will allege because Judge Recksiedler is married to a partner of CNN consultant Mark NeJame and Nejame is the referring attorney to O’Mara, that there is too much potential for conflict. My guess is that O’Mara will have no issue getting this motion granted if for nothing else but this Judge erring on the side of caution. Ultimately I don’t think this issue is of consequence regardless.
Jason Mayberry is the founding partner of The Mayberry Law Firm in Clearwater, Florida. His practice is focused in the areas of Federal and State Criminal Defense, Family Law, and Personal Injury and Medical Malpractice. For more information on Jason or The Mayberry Law Firm, go to www.mayberryfirm.com or contact Jason at 727-771-3847.