McBride case: Judge refuses defense motion to recuse herself

April 5, 2014

Saturday, April 5, 2014

Good afternoon:

The Detroit Press and Guide is reporting this morning:

The judge in the case of a Dearborn Heights man accused of killing a woman on his front porch won’t step away.

Wayne County Circuit Judge Qiana Lillard denied a motion by Theodore Wafer’s attorneys to recuse herself from the case Friday morning. They claim Lillard’s ties to the Wayne County Prosecutor’s Office — she worked in the office before being appointed to the bench last year — create an “appearance of bias.”

Circuit Judge Timothy Kenny, the head of the court’s criminal division, will hear an appeal on April 25.

Wafer’s attorneys are not likely to get a change of venue on this ground unless she was employed by the prosecutor’s office when Wafer shot and killed McBride. That would create a conflict of interest that would require the judge to recuse herself.

Most judges are former prosecutors, so merely having worked for a prosecutor’s office is not going to be sufficient grounds to require a judge to step down.

The motion for a change of venue will likely be denied without prejudice, which means that it can be raised again during jury selection if most of the venire are familiar with the case and have formed opinions about Wafer’s guilt or innocence.

The motion to permit the defense to attack McBride’s character will likely be denied pursuant to Rule 404, although I will give defense counsel credit for phrasing it creatively to get it within the exception permitted by the rule.

My prediction: Good effort. Motion Denied.


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News Organizations File Motion To Unseal Court File In Zimmerman Case

April 16, 2012

As I predicted late last week after I found out that the court file in the George Zimmerman case was sealed at the request of the defense, various news organizations in Florida, including the AP and the Miami Herald, filed a motion today in the Seminole County Circuit Court to unseal the file. The file contains a full set of police investigation reports, the autopsy report, and transcriptions of witness statements.

The reports were in the file because they become public information after a case has been filed, unless sealing the file is necessary to protect the defendant’s right to a fair trial and there are no other alternatives that will accomplish the same objective. Pursuant to Press-Enterprise Co. vs. Superior Court of California, 464 U.S. 501, 510 (1984), must identify and articulate an overriding interest based on findings that a seal is essential to preserve higher values and is narrowly tailored to serve that interest.

The news organizations contend that the court did not follow the proper procedure and its blanket order is too broad to meet the “narrowly tailored” requirement.

This matter has not been scheduled for a hearing because defense counsel has filed a motion to recuse the judge to whom the Zimmerman case has been assigned.

Mark Schneider at the Huffington Post describes the situation this way,

Circuit Judge Jessica Recksiedler last week revealed the potential conflict in the case that relates to her husband, who works with Orlando attorney Mark NeJame.

NeJame was first approached by Zimmerman’s family to represent the neighborhood watch volunteer. But the attorney, who also is serving as a CNN legal analyst in the case, declined and referred them to O’Mara.

“What I don’t want to happen is to wait a month or two, and then we find out that what we thought is a potential conflict is an actual conflict,” O’Mara told reporters outside the Seminole County Criminal Justice Center.

Having been in Mark O’Mara’s (Zimmerman’s lawyer) situation several times, including the Green River Killer serial murder case, I know he is concerned about the effect that some of the information in the court file might have on Zimmerman’s right to be tried by a fair and impartial jury, if that information becomes public before the trial.

As an onlooker, for reasons that I have previously expressed, I am most interested in the autopsy report, forensic reports on blood spatter, the gun, and the 911 tapes.

O’Mara’s concern is legitimate, given the firestorm of publicity about this case already. It will be interesting to see how the judge who eventually decides the motion splits the baby between Zimmerman’s right to a fair trial and the public’s right to know that is protected by the First Amendment.

A hearing on the request to unseal the file cannot be scheduled for a hearing until the motion to recuse is decided.

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