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The Trayvon Martin Killing

Motion for New Judge should be granted– The legal standard for most motions for a new Judge (technically called a Motion to Recuse the current Judge) is not whether there is actual prejudice in the mind of the Judge presiding over the case, but whether, in the mind of the average person viewing the facts, there is an appearance of impropriety. This objective standard controls over the subjective standard of whether the Judge currently controlling the case has, in his mind, any preconceived notion about the guilt or innocence (or any other preconceived notion) of the case. When there is a Motion to Recuse filed, a different Judge is appointed to hear the facts and rule on the motion.

In the case against George Zimmerman for the killing of Trayvon Martin, the factual basis for the request to recuse is that the husband of the current Judge is a law partner with an attorney who was first approached by Zimmerman's family, but he declined to represent Zimmerman. The family then retained the current lawyer.

However, it is reasonably foreseeable that some facts were disclosed by Zimmerman's family to the first lawyer, and it may have happened that the first lawyer conveyed some or all of those facts to his law partner, who is the husband of the Judge. Whether or not any further communication took place between the husband and the Judge as to those facts, the appearance of an impropriety is present. So, the Judge should be recused (or recuse herself), and there should be another Judge appointed to preside over George Zimmerman's trial for murder.

In cases like this one, on motions to recuse, Judges should err on the side of being conservative, to avoid the risk of the appearance of impropriety which leads to a lack of confidence in the judicial system by the public. Unfortunately, balanced against a better guideline of being conservative, is the very real temptation of a Judge to stay in media headlines and stories for political reasons, in order to increase his or her visibility and name recognition for the next election.

Motion to Seal RecordsZimmerman's lawyer also made a motion to seal the records regarding the case, including the police investigation records. That motion will should be granted, and the records should be sealed. Although such records are typically open to the public in Florida, one of the grounds to allow such records to be closed is whether or not they need to be sealed in order for the defendant to receive a fair trial. Because of the widespread publicity regarding the case, it will be difficult to get a jury panel whose members have not read or heard something about the case, and who have, in many instances, developed a preconceived notion of the guilt or innocence of Zimmerman before they walk into the courtroom. Unfortunately, every experienced criminal defense lawyer knows, many prospective jurors will admit to having a slight preconceived notion, many will not, because they want to be on the jury.

Therefore, the wise thing to do to help avoid that problem altogether and to minimize the continued spread of publicity about the case, especially by the release of the police investigative reports, which are often slanted against the citizen-accused, is to seal the records. Although the U. S. Constitution provides for a "public trial," that right is primarily for the protection of the defendant to avoid being tried in secret behind closed doors.

The Motion to Unseal the Records is being filed by the media. Although the media also has an interest in a criminal trial being public the sealing of the records will not prevent the trial from being open to the public. If it were ordered that the doors to the courtroom be locked to shut people out, including the members of the media, that would be a different matter. But that is not the case here. The only issue is whether the records should be sealed temporarily, as the contents of the records will be revealed during the trial and the trial will be open to the public.

For the above reasons, the defense Motion to Seal the Records should be granted.

The author, Arch McColl, is a Criminal Defense Lawyer based in Dallas, Texas.

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