Motion to Recuse a Judge

November 25, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Throughout the duration of the Parkland Shooting trial, we’ve covered several issues brought on by the case. As the first-ever trial for a mass school shooter, the trial was widely viewed by the public. Since the trial and sentencing phases have now both been completed, Broward Circuit Judge Elizabeth Scherer drew criticism from the defense team—specifically for hugging members of the prosecution after the proceedings ended.

In the last week, several motions for recusal were filed against Scherer with the Broward Public Defense Office. This article will provide details about the motions filed, along with information on the process of recusal of a trial judge in Florida.

Example Case – Parkland Trial

The Parkland trial’s defense team—along with over 140 defendants—filed motions last week against Judge Scherer to the Broward Public Defender’s Office. Following the end of the trial, head defense attorney Melisa McNeill complained that the victims’ families had harsh criticisms of the defense, even claiming it went as far as making illusions to the attorney’s children.

As the Broward Public Defender’s Office was appointed to the case, they were legally obligated to provide the defense for defendant Nikolas Cruz, the shooter in the case. Despite the prosecution seeking the death penalty, Cruz was sentenced to life in prison in October.

According to the complaints against Scherer, the judge downplayed McNeill’s objection during the trial. Scherer was also accused of scolding Assistant Public Defender David Wheeler after he insinuated that the judge would not tolerate the same references received by the defense to her own children.

The defense motions claimed that the court “treated counsels’ concerns with disdain and contempt, dismissing defense attorneys from the table and the podium.” In addition, the motions stated that the public defenders’ work and the integrity of the justice system were demeaned by the court.

So far Judge Scherer has denied several of the motions without explanation. According to Florida law, Scherer would only be required to comment on the legal sufficiency of a motion for recusal. If there were any additional comments made, it could result in cases getting removed from the judge’s docket. 

Process of Motion to Disqualify

Under Rule 2.330 of the Florida R. Jud. Admin., a party can seek the disqualification of an assigned trial judge if the party feels they will not receive a fair trial or hearing. The reason for concern over a fair trial can be due to a specifically described prejudice or bias of the judge.

The rule states that upon the receipt of a legally sufficient motion to disqualify, “the judge shall immediately enter an order granting disqualification and proceed no further in the action.”

The application of the rule can only be applied to county and circuit judges in all matters in the division of court when acting alone as the sole judicial officer in a trial or appellate proceeding. The rule cannot apply to justices, appellate-level judges, or county and circuit judges who sit on a multi-appellate panel.

According to Rule 2.330, the grounds for the disqualification of a judge must address the specific evidence and facts upon which the judge’s impartiality may be questioned. The following lists potential circumstances in which to file a motion to disqualify a trial judge:

1. The party fears they will not receive a fair trial/hearing due to the bias or prejudice of the judge; or
2. Either the judge, the judge’s spouse, or a person within the third-degree relation to the judge:
   1. Has an interest in the subject matter in controversy, or is a party to the proceeding, or is an officer, director, or trustee of a party;
   2. Is an acting lawyer in the proceeding;
   3. Has more than a de minimis—something small and unimportant—economic interest that could be affected by the proceeding; or
   4. Is likely to serve as a material witness or expert in the proceeding.
3. The judge has served as a lawyer or acted as the lower court judge in a matter of controversy, or a lawyer in the matter had previously practiced law or served with the judge; or
4. The judge had prior bias or personal knowledge regarding the disputed evidentiary facts concerning the proceeding.

Once it is time for the determination, the judge who has the disqualification motion against them has no more than 30 days to act. They may only determine the Legal Sufficiency of the Motion. Meaning that the motion complies with the minimum requirements by law. If the motion is not denied within 30 days, the motion is deemed granted. After it’s granted, the moving party may seek an order from the court to direct the clerk to reassign the case.

Under the same rule, the motion to disqualify must have the following components:

• The motion must be in writing;
• The motion claims the specific facts and reasons upon which the movant relies as the grounds for disqualification, and identifies the precise date when the constituting facts of the motion were discovered by the party or party counsel;
• The motion is to be sworn to or affirmed by the signing party of the motion, or by attaching a separate affidavit;
• The motion must include any dates of previously granted motions to disqualify filed under the same rule, and the dates of the orders granting those motions; and
• The motion must include an additional certification by the attorney for the party, if any, that both the client’s statements and the motion are in good faith.

The best way to figure out how to handle a trial and any issues with a judge is to work with a skilled defense attorney in your area.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a crime in the state of Florida, your first move should be to speak with a legal professional. Between an initial arrest, charges, and trial, the legal world is a scary place to navigate. Having an experienced Tallahassee criminal defense lawyer on your side can ease the process, along with building a strong defense for your case.

Don Pumphrey and his team at Pumphrey Law Firm have years of experience representing clients in Florida. Our attorneys will be by your side throughout the entire process and will fight for your future. Contact us today for a free consultation at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

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