Attorney David A. Brener Finishes Federal Narcotics Conspiracy Trial

Fort Myers Criminal Defense Attorney David A. Brener of the Law Offices of Brener and DeMine, P.A. 239-332-1100 completed a federal criminal trial this month involving a conspiracy to possess with intent to distribute thousands of oxycocone, alprazolam and methadone pills. The jury deliberated almost three hours before reurning the verdict. The case was prosecuted by Chief Assistant United States Attorney Doug Molloy, and included the testimony of several cooperating co-defendants. Mr. Brener's client was the only defendant, of nine indicted, to go to trial.
Brener and Demine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
239-332-1100
www.justiceisourpassion.com

Lee County Criminal Lawyers Attorneys David A. Brener and Thomas E. DeMine Settle In To New Upscale Offices

Lee County Criminal Lawyers - Attorneys David Brener and Thomas DeMine (239)332-1100 - have settled into their new offices at the Suntrust Bank Building on U.S. 41 in South Fort Myers. After experiencing initial problems with internet and phone service, the Firm is now fully up and running, and there will be no interruption of providing aggressive, experienced representation to their clients.

Brener and DeMine, P.A.
12381 South Clleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
www.justiceisourpassion.com

Fort Myers Criminal Lawyers Brener and DeMine Welcomed To New Office Building

Fort Myers criminal defense attorneys David A. Brener and Thomas E. DeMine of the Law Offices of Brener and DeMine, P.A. 239-332-1100 received a warm welcome from some of the other professionals as they began their first day in their new offices on U.S. 41 in South Fort Myers today. Brener and DeMine relocated from downtown to 12381 South Cleveland Avenue in order to have a larger office with room for more staff and attorneys, and plenty of free parking for their clients. Although the convenience of walking to court will be missed, the new offices are only five miles from the justice center, and have a much more luxurious feel than the former office in a hundred year old building downtown. Brener and DeMine needed to make this move, and we're glad we did.

Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33917
239-332-1100
www.justiceisourpassion.com

Fort Myers Criminal Defense Attorneys Brener and DeMine, P.A. Relocate Offices To South Cleveland Avenue

Fort Myers Criminal Defense Attorneys Brener and DeMine, P.A. 239-332-1100 have relocated their law offices to the Sunrise Office Center, at the Suntrust Building,12381 South Cleveland Avenue. The Firm's new 2500 square foot offices in this five story Class A bank building on U.S.41 will allow the Firm to grow and to serve clients with greater ameneties, including free parking and an upscale place to confer and consult. The building, home of an eye doctor with a big eye on the top of the building facing 41, is easy to find while travelling north or south. Brener and DeMine will continue to practice state and federal criminal defense in Fort Myers, Naples, Punta Gorda, and Labelle. If you're accused of a crime, call Brener and DeMine.

Brener and Demine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, FL. 33907
239-332-1100
www.justiceisourpassion.com

Criminal Defense Attorney David A. Brener Teams Up With Former Prosecutor To Form Brener and DeMine, P.A.

Fort Myers Criminal Defense and Homicide Attorney David A. Brener 239-332-1100 has gone into partnership with former prosecutor Thomas E. DeMine, III. The Firm will now be known as Brener and Demine, P.A., and will continue to practice criminal law in state and federal court. Mr. DeMine is a former Assistant State Attorney in the 20th Judicial Circuit, who was assigned to Fort Myers. While there, he represented the State of Florida in felony and misdemeanor court, and gained invaluable experience into both the prosecution and defense of criminal cases. Since he left the prosecutor's office in 2009, he has been employed by Mr. Brener as an Associate, where he has handled a wide variety of criminal cases in felony, misdemeanor, and juvenile court. As a result of his exemplary work, after only 18 months as an Associate, Tom has been made an equity partner. He will continue to practice state and federal criminal law in Fort Myers, Naples, Punta Gorda, and LaBelle.

Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, FL. 33907
239-332-1100
www.justiceisourpassion.com

Fort Myers Homicide Attorney David A. Brener Gets Homicide Charges Dismissed Under Florida's "Stand Your Ground" Law

Fort Myers Homicide Attorney David A. Brener 239-332-1100 recently was successful in getting the homicide charges dismissed against a Pine Manor resident who was accused of the unlawful shooting of a sixteen year old gang member. Using Florida's "stand your ground" law, Mr. Brener argued that the state could not rebut, and the forensic evidence supported, that the client acted in the defense of his home. After presenting the testimony of his client and submitting and arguing a memorandum of law, the judge dismissed the charges, and the client was released from custody.
David A. Brener is a Fort Myers Criminal Defense Attorney who concentrates on Homicide and Serious Felony Cases. He is peer review rated "AV Preeminent" in Criminal Law from Martindale Hubbell, and is listed in the Bar Registry of Preeminent Attorneys.
David A. Brener, P.A.
2133 Main Street
Fort Myers, FL. 33901
239-332-1100
www.justiceisourpassion.com

Hendry County and Labelle Homicide Attorney David A. Brener Handles All Homicide Cases

Homicide attorney David A. Brener 239-332-1100 is available to handle any homicide case in Hendry County and LaBelle, Florida. David Brener is peer review rated "AV Preeminent" in criminal law by Martindale Hubbell, and is listed in the Bar Registry of Preeminent Attorneys. David Brener has handled approximately 55 murder cases, including 19 capital death penalty cases. He is one of one half of one percent (.05 %) of Florida attorneys who are qualified to act as lead counsel in death penalty cases. The Law Offices of David A. Brener, P.A. handles all degrees of homicide, including first, second, and third degree murder, manslaughter, and vehicular homicide. For more information, visit our website at
http://www.justiceisourpassion.com

David A. Brener, P.A.
2133 Main Street
Fort Myers, Fl.33901
239-332-1100

Fort Myers Criminal Defense Attorney David A. Brener (239-332-1100) Handles All State and Federal Crimes

Fort Myers Criminal Defense Attorney David A. Brener (239-332-1100) is in the Bar Registry of Preeminent Lawyers, and handles all state and federal crimes, including Murder and other Violent Crimes, Narcotics Offenses, Sex Crimes, Firearm and Weapons Offenses, Economic and White Collar Crimes, Driving Offenses/DUI, and Probation/Control Release Violations. He and his Associate, Thomas E. DeMine, III, practice exclusively in the area of criminal defense in state and federal court. The Law Offices of David A. Brener offers free initial consultation, and has flexible appointments. Call today or visit our website at http://www.justiceisourpassion.com/.
David A. Brener, P.A.
2133 Main Street
Fort Myers, FL. 33901
239-332-1100

Naples Homicide Lawyer David A. Brener Handles All Degrees of Homicide

Naples Experienced Homicide and Murder Lawyer David A. Brener (239- 332-1100) is available for representation on all homicide cases, including first, second, and third degree murder, manslaughter, vehicular homicide, and capital murder cases. David Brener is listed in the Bar Registry of Preeminent Attorneys, and is peer review rated "AV" - the highest rating in legal ability and ethical standards - in criminal law. David Brener is one of approximately one half of one percent (.05%) of criminal lawyers in the State of Florida who is permitted to act as lead counsel in capital death penalty cases. He has handled approximately 55 murder cases, including 19 capital murder charges. David A. Brener is the Chairperson of the Criminal Law Practice Section of the Lee County Bar Association, the current President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers, and a long-standing member of the National Association of Criminal Defense Lawyers. He offers free consultation and flexible appointments.
David A. Brener
2133 Main Street
Fort Myers, FL. 33901
(239-332-1100)
www.justiceisourpassion.com

Sarasota Murder Lawyer David A. Brener Handles All Homicide Cases

David A. Brener, (239-332-1100) an "AV" rated Fort Myers based criminal lawyer listed in the Bar Registry of Preeminent Attorneys, is available to handle any Sarasota homicide case, including first, second, and third degree murder, manslaughter, and vehicular homicide cases. David Brener is fully "capital qualified" to act as lead counsel in capital death penalty cases, and has represented clients as lead counsel or cocounsel in 19 capital murder charges, as well as in approximately 55 murder cases. Visit our website at http://www.justiceisourpassion.com/ for more information.
David A. Brener, P.A.
2133 Main Street
Fort Myers, Fl. 33901
239-332-1100

Fort Myers Criminal Lawyer David A. Brener Handles All State and Federal Cases.

Fort Myers Criminal Defense Attorneys David A. Brener and Thomas E. DeMine 239-332-1100 can handle every type of criminal case, from 1st degree murder to DUI. David A. Brener is peer review rated "AV Preeminent" , listed in the Bar Registry of Preeminent Attorneys, and is "capital qualified" for death penalty cases. Tom DeMine is a former prosecutor in Lee County. Mr. Brener has had jury trials on numerous federal cases, approximately 150 felony cases in state court, and hundreds of misdemeanor and juvenile cases. He has handled over 55 murder cases, 19 death penalty charges, and thousands of drug cases. Mr. DeMine has invaluable experience prosecuting and defending criminal cases and has tried numerous cases in both misdemeanor and felony court. Together, they take a team approach to defending their clients, and can handle any type of criminal case in state or federal court. For more information, visit our website at http://www.justiceisourpassion.com/.
David A. Brener, P.A.
2133 Main Street
Fort Myers, Fl.33901
239-332-1100

Punta Gorda and Charlotte County Criminal Lawyer David A. Brener Handles All State and Federal Crimes

Phone: (239) 332-1100. My firm handles all state and federal crimes, and we accept cases in the criminal courts of Charlotte County, Florida. My office is right next to the federal court and across the street from the state courts in Fort Myers. Punta Gorda is less than a half hour away from my office, and my firm has represented dozens of people in Charlotte County in both felony and misdemeanor court, for murder and other violent crimes, drug offenses, DUI and driving charges, probation violations, and economic crimes. My Associate, Tom DeMine, and I make the time to meet with our clients from Punta Gorda and the rest of Charlotte County, and encourage our clients to consult often and stay abreast of their case as the defense is developed. For more information, visit our website at http://www.justiceisourpassion.com/.
David A. Brener has been peer review rated "AV Preeminent" by Martindale Hubbell, and is in the Bar Registry of Preeminent Attorneys through 2011.

Naples Criminal Lawyer David A. Brener Handles All State and Federal Crimes

My firm handles all state and federal crimes, and accepts cases in Collier County. Phone: (239) 332-1100. I have handled thousands of criminal cases, including scores of cases before the circuit and county courts in Naples, such as Murder and other violent crimes, DUI, Drug cases, Probation cases, and Driving charges. I also have had many clients from Naples who I have represented in Fort Myers. My office is approximately 30 minutes away, and I have an excellent staff and a hard-working attorney, Tom DeMine, working with me on behalf of our Naples clients. Clients from Naples often come up to meet with me or my Associate at our Fort Myers office, which is right next to the federal court and across the street from the state courts in Fort Myers. We always find the time to meet with clients from Naples, Bonita, Immokalee, Marco Island, and Estero. For more information, visit our website at http://www.justiceisourpassion.com/.
David A. Brener has been peer review rated "AV Preeminent" by Martindale Hubbell in Criminal Law, and is listed in the Bar Registry of Preeminent Attorneys through 2011.

Highly Rated Fort Myers Lee County Criminal Lawyer David A. Brener Receives Highest Possible Peer Review Rating From Martindale Hubbell

Recently, I was honored by my peers -lawyers in Fort Myers- with a peer review rating of "AV Preeminent" in legal ability and ethical standards for Criminal Law from Martindale Hubbell. This highest possible rating is truly humbling, and a reminder to me to always strive for excellence in the defense of the accused. As one of my recent blogposts stated, there are a lot of great lawyers out there in the trenches everyday, and it is important not to let the opinions of others go too much to your head.
David A. Brener, P.A.
2133 Main Street
Fort Myers, FL. 33901
239-332-1100
www.justiceisourpassion.com

Fort Myers Lawyer David A. Brener - Peer Review Rated "AV Preeminent" in Criminal Law by Martindale Hubbell

David A. Brener 239-332-1100 Qualifications: 22 years Criminal Trial Experience; "AV" "Preeminent" peer review rated by Martindale Hubbell; Listed in the Bar Registry of Preeminent Attorneys; "Capital Qualified" for First Degree Murder Death Penalty Cases in Florida; President, Lee County Chapter, Florida Association of Criminal Defense Lawyers; Chairperson, Criminal Law Practice Section, Lee County Bar Association; Member, National Association of Criminal Defense Lawyers; CJA Advisory Panel Representative, Fort Myers Division of the Middle District of Florida; Published articles on criminal defense in "The Champion", Magazine of the National Association of Criminal Defense Lawyers; "Florida Defender", Magazine of the Florida Association of Criminal Defense Lawyers, "Res Gestae", Magazine of the Lee County Bar Association; Admitted: Florida Bar; United States Supreme Court; Eleventh Circuit Court of Appeals; United States District Courts, Middle and Southern Districts of Florida. Jury Trials in approximately 150 felony cases; handled approximately 55 murder cases, including involvement in 19 death penalty cases as lead or co-counsel.
David A. Brener, P.A.
2133 Main Street
Fort Myers, Fl. 33901
239-332-1100
www.justiceisourpassion.com

Fort Myers Criminal Defense Attorney David A. Brener: Rated "AV Preeminent"

Attorney David A. Brener 239-332-1100 recently received an "AV Preeminent" rating in legal ability and ethical standards in criminal law from Martindale Hubbell. David Brener was also included in the Bar Registry of Preeminent Attorneys for 2010 to 2011. The peer review process rates attorneys on knowledge of the law, analytical ability, the ability to communicate effectively, legal experience, and judgment. The highest rating - "AV Preeminent" is held by approximately five percent (5%) of attorneys. For more information about criminal defense attorney David A. Brener, visit our website at http://www.justiceisourpassion.com
David A. Brener, P.A.
2133 Main Street
Fort Myers, FL. 33901
239-332-1100

Ryan Costello: When is a Lee County/Fort Myers Death Penalty Case Not a Death Penalty Case?

Recently, the state charged Ryan Costello with second degree murder and misdemeanor child neglect for the beating death of his four month old child. Apparently, Mr. Costello was out partying and became enraged at his girlfriend when he came back to his home, an alleged drug den, and took it out on the baby. He was allegedly recorded saying that he's "a murderer" and that he "killed his kid", and it appears that the state has an overwhelming case against him. Since the child died as a result of blunt force trauma caused by the horrific beating, the state could easily charge aggravated child abuse, an enumerated felony and aggravator for first degree felony murder, and could easily allege that the child was (1) under 12, (2) killed by someone in parental authority, (3) by acts especially heinous, atrocious and cruel. These four aggravators have been repeatedly used in this circuit to seek the death penalty, or at least to charge with first degree murder. However, he has not been so charged, and the child abuse is a mere misdemeanor.
Consider Justin Grodin, who the state could not even prove intended to kill the child, and the nine years of litigation the state went through in order to try to end his life. Consider the countless other baby killing cases where the state seeks the death penalty, and there is a question as to which parent actually did the deed.
This case just reinforces my repeated claim that the death peanalty is arbitrary and capricious, and that arbitrariness begins with the initial charging decision by whoever is calling the shots on the particular case.

Fort Myers Homicide Case: Aderian Carey

Recently, an article in the Fort Myers News-Press criticized two excellent judges for giving bonds on Mr. Carey's pending cases. The first case, a homicide, resulted in his surrender, with counsel, within hours of learning that he was a suspect in the shooting. In addition, the alleged shooting happenned at his own home when a known gang member was attempting to break into his window, in a high crime area, in the early morning hours. Even before Florida's "stand your ground law", a person had the right to presume that an intruder intended to do harm when an unlawful entry was attempted in one's home, and a citizen had the right to meet force with force, without any duty to retreat from one's home. The learned judge, our Chief Judge, was apprised of these facts at the first appearance, and issued a fifty thousand dollar ($50,000) bond for the homicide, which ultimately was filed as a manslaughter, and which is the subject of a motion to dismiss based on immunity from prosecution under the stand your ground law.
Mr. Carey's subsequent arrest, more than a year after the first one, occurred after a man assaulted his mother, threw a bottle at her, and attempted to do both her and Mr. Carey harm. The attacker allegedly injured himself in the leg after kicking a knife Mr. Carey held in order to defend himself and his family from further viscious attacks by the male and his friends. Again, one of our finest judges looked at the facts of the case, Mr. Carey's lack of prior record, and his history of appearing in court as required, and issued a substantial bond in the amount of one hundred thousand dollars ($100,000).
To suggest that this situation is analagous to the improper release of that career criminal cop -killer, who was not held to answer for violating his probation, is simply wrong. Mr. Carey was brought to court on the new charge, and the criminal justice system, with prosecutor, defense attorney and judge, functioned as required. It simply is not the same situation as when someone who has already been convicted of a crime, and who is on probation and violates that probation by committing other public crimes, escapes arrest and processing. To criticize our judiciary for appreciating distinctions in the law and applying the particular facts and circumstances of each individual case is unwarranted, even if you do not agree with a particular decision or bond amount. Judicial independence is the cornerstone of our democracy, and judicical decision-making, thank god, is not based on mob rule or fear of unwarranted criticism.

Mistrial In Mohammed Javed Homicide Case: Javed's Defense Lawyer Lays The Record Straight

During the last and final of thirty five state witnesses called to the witness stand by the prosecution in the two week trial of Mohammed Javed, the prosecutor attempted to elicit from the lead detective, John Long, that the detective applied for an arrest warrant, that Javed was indeed arrested, and that noone else was arrested for the murder of Susan Vickars. The assistant state attorney even framed the question to the effect of " after reviewing all of the evidence in the case and the statements of all of the witnesses who were interviewed, isn't it true that only Mr. Javed was arrested in this case for the murder?" The fact that someone has been arrested for a crime is normally irrelevant, but it may become relevant when the arrest is offerred to prove an issue unrelated to guilt, as for example, the identity of the person in the courtroom, or the location of the arrest when the prosecution has alleged, as it did in the Javed case, flight showing consciousness of guilt. In each of these permissible inquiries, the prosecution is not permitted to argue or suggest that the defendant is guilty merely because he was arrested, nor is it allowed to elicit that the detective made in essence a decision as to who is guilty and who is not guilty after reviewing the entire case. This is tantamount to a presumption of guilt, rather than a presumption of innocence, as a result of a mere accusation. More importantly, it constitutes insidious opinion evidence as to who the guilty party is, and asks the jury to rely on the opinion of the officer as evidence of guilt, an improper and unconstitutional request. In his zeal to seek a conviction, the prosecutor also tread into the dangerous area of asking the detective to paraphrase the defendant's responses to specific questions, which provoked his conclusions regarding whether the defendant satisfactorily answered the questions, and several statements that the defendant did not answer at all. While there may be debate about whether, once a defendant waives his rights and agrees to speak to law enforcement, his refusal to respond to specific questions is admissible, when the alleged failure of Mr. Javed to answer was combined with testimony that the other suspects gave statements, and that after those statements and Javed's statements were considered, only Javed was arrested, the implication was clear: Javed is guilty and the other suspects are not. This was extremely prejudicial for two separate reasons. First, the entire defense was that the police focused impetuously on Javed, the Muslim husband, and ignored other potential and likely suspects. Second, in reality, Javed answered all the questions posed to him on five separate occassions, and consented to a search of his home, computer, DNA, and provided witnesses and possible suspects to the investigators. As articulated in a previous posting on this blog, Mohammed Javed may well be innocent. Thus, the improper lines of questioning of the prosecutor, and the improper responses of the lead detective, the last and final witness, was calculated to, and did lead to the potential for great prejudice to Mr. Javed, and a mistrial was the appropriate action for the learned judge to take.

Mohammed Javed's Defense: Why he may be INNOCENT

Mohammed Javed is charged with the murder of his wife, Susan Vickers. The police immediately focused on him, and as I told the jury, "since he was the husband, he must have done it." The police, of course, claim that it was because he was the last person to see her alive, and that he made the report of her missing, that he became the focus of their investigation. In fact, there were two sightings of a woman fitting the description in the days after the report was made, and another man also made a report of her missing, as she was supposed to be getting together with him around the time of her disappearance. The police found out that this man was planning on coming down to Fort Myers, but did not research his whereabouts until well after the arrest of Mr. Javed. They also failed to follow up with the leads regarding her sightings, and despite the fact that Mr. Javed provided three pictures of her to assist in the investigation, did not bother to show them to the people who reported seeing her. The missing persons investigator had over one hundred cases pending, and so many leads and potential suspects in this case that she was "overwhelmed." One of those suspects was stalking Ms. Vickers, but the police failed to interview him until well after the arrest of Mr. Javed. The stalker still could not account for his whereabouts, but we do know that he had threatened to kill her on a previous occasion. The state is attempting to downplay the significance of these failings by focusing on the behavior of Mr. Javed, and calling it circumstantial evidence of guilt. Mr. Javed had told people he thought Ms. Vickers may have travelled to Canada, and it was certainly a reasonable place for him to look for the love of his life, as her parents lived there, as did some of her friends. The state did not introduce the return ticket from Canada back to the United States, as it would undermine their theory that he was fleeing the country because he had committed the murder. The defense had to point that out, and introduce the evidence. Given Ms. Vicker's lifestyle, and the huge number of men she had had contact with, both on-line and in person, there were many people with a motive for murder. Thomas Carrol Parker, who claims he helped Mr. Javed dispose of the body, was threatened and pressured by the police to such an extent that any statements he made to the police are unreliable. Moreover, Mr. Parker was living in the house after Susan Vicker's disappearance, and had motive to kill Ms. Vickers from before her disappearance to the moment the police searched the home and found what they claim is her blood. He had access to the computer which, at some point before a body was found, did a search for the location where it was ultimately discovered. The notion that Mr Javed, a highly intelligent man with great knowledge of computers, would leave her blood laying around and a computer "footprint" of where he dumped the body, and then voluntarily surrender that same computer to the police without a warrant, defies credulity. The blood, found in the car Mr. Javed drove, was not visible as blood to an untrained observer, and Mr. Parker and Mr. Javed's father, who is a conservative Muslim who intensely disliked Ms. Vickers, both had access to the vehicle. In sum, none of the evidence against Mohammed Javed proves that he committed the crime, and he has steadfastly maintained his innocence from the very beginning. He therefore may not only be not guilty of this homicide, but may, in fact, be innocent.

Cop Killer Turns Self In - Awaiting Charges On At Least Three Murders

Just a few hours after the viewing for the two slain Tampa police officers, the suspect, Dontee Rashawn Morris, turned himself into authorites after a massive manhunt failed to locate him. He will be charged with the the two murders of the officers who stopped the vehicle in which he was riding, as well as another which occurred in front of his family's business. He is a suspect in a fourth homicide as well. Unless he cut some kind of deal in order to get him to surrender, which is unlikely, he will almost certainly face the death penalty for the first degree murders of the officers. Prosecutors will be able to allege that he committed a prior violent felony - each homicide is considered a prior for the other - as well as cold, calculated and premeditated and victim a law enforcement officer. There may be a felony murder as well, if it can be shown that he was fleeing from a prior homicide. With aggravating factors like these, it is extremely unlikely that he will not face the death penalty.

Federal criminal lawyers in Fort Myers

David A. Brener (239-332-1100)has been admitted to the federal courts for over 20 years, and has had numerous federal jury trials. Fort Myers used to be a real small town, with a small number of attorneys, and the number of criminal lawyers who practiced in federal court was even smaller. Today, there are a lot of attorneys, and a growing number who advertise for federal criminal cases in this jurisdiction. While some of these attorneys have a great deal of experience, some of the most aggressive advertisers have never tried a case in federal court, and are not familiar with the practice and procedure, which differs greatly from that in the state courts. Federal court is not only more formal, but requires that almost every request be put in writing, with legal citations. Jury questioning is usually abbreviated, if it is provided at all, and sentencing is extremely complicated and ever changing. Almost every task is more difficult than in state court, and since even a greater percentage of federal cases result in pleas than state cases, some attorneys can practice for years without ever trying a case to a jury in federal court. There is no substitute for actual trial experience, however, and consumers should inquire of prospective attorneys whether they have actually tried cases in the federal courts. For more information, visit our website at www.justiceisourpassion.com

Lee County Dad Accused of Child Murder May Face Death Penalty

The thirty one year old man who got into an argument with his girlfriend and allegedly, in a rage, beat their child to death, Ryan Costello, will be arraigned on July 19th. He was arrested on a charge of first degree murder, and it remains to be seen whether the state will indict him on those charges. I have represented people who have engaged in similar alleged conduct, and the charges have varied from manslaughter to second degree murder to first degree murder. Aggravated child abuse is an enumerated felony for first degree felony murder, and the child was reportedly beaten so severely that his spinal cord was severed, his skull was fractured, and he sufferred from internal bleeding. In addition, the public is clamoring about the alleged grow house operation in his home, as well as the fact that the children may have been left alone while the couple were out partying, and present while they were dealing drugs out of the home. Although the aggravating factors in support of a death penalty prosecution are limited by statute, publicity can play a role in the state's decision to seek the ultimate punishment. When combined with the child's age, defendant in custodial position, the heinous and cruel nature of the crime, and the possibility to allege it was premeditated in order to punish the girlfriend, this case may well result in an indictment for capital murder.

Florida Death Penalty Lawyers Must Have Special Qualifications

In order to represent a client charged in a capital first degree murder case, the Florida Supreme Court requires that the attorney be "capital qualified." Being a capital qualified lawyer is the only way an attorney can ethically represent someone charged with first degree murder, unless the death penalty has already been waived on the record. Lawyers who are fully capital qualified meet the requirements of Florida Rule of Criminal Procedure 3.112, which requires at least five years of criminal trial experience, prior experience as lead counsel in serious and complex trials, including murder cases, as well as additional capital defense education requirements, familiarity with the use of expert, psychiatric, and forensic witnesses and evidence, and, importantly, trying at least two (2) death penalty cases to completion before a jury as co-counsel. In addition, capital defense lawyers must be able to provide "high quality legal services", and "perform at the level of an attorney skilled in the specialized practice of capital representation, zealously committed to the capital case, who has adequate time and resources for preparation." This is crucial because a capital case is unlike any other in the law, as "every task is more difficult and time consuming when the client is facing execution." Due to the irrevocable nature of the death penalty "counsel must make extraordinary efforts on behalf of the accused", and must limit his or her caseload, and be familiar with the local practices and procedures in the jurisdiction. These minimum requirements, promulgated by the Florida Supreme Court are, absent exceptional circumstances, absolutely essential in order to assure that the client receives the heightened level of effective assistance of counsel expected and required in capital cases. There are, and rightly so, only a very small percentage of criminal lawyers who are "capital qualified" according to the national A.B.A. and Florida guidelines.
Lawyers who have never tried a capital case in any capacity, much less as lead counsel, currently advertise with the key words "death penalty lawyer" all over the internet; thus, it is extremely important to research or inquire if an attorney being contemplated for representation on a first degree murder case actually meets the specific qualifications. In addition to the above criteria, Rule - 3.112(f)'s - requirement of knowledge of the practice and procedures in "the criminal courts of the jurisdiction" where the trial is to occur, and its requirement that attorneys limit the number of death penalty and other cases he or she is handling at any one time, is designed to insure, as much as possible, the delivery of "high quality" legal services on behalf of a capital client. When life hangs in the balance, we should expect no less.
David A. Brener is an "AV Preeminent" peer review rated criminal lawyer who is listed in the Bar Registry of Preeminent Attorneys.

On Jury Nullification

On Jury Nullification

The following is an excerpt from an article written by United States District Court Judge Frederic Block entitled “Reflections on Guns and Jury Nullification - and Judicial Nullification”, which was recently published in the Champion Magazine, a publication of the National Association of Criminal Defense Lawyers.

The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly. At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court. After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believe it such, it was not a finable fault, nor deserving imprisonment….” Bushell’s Case is widely cited as the first precedent for the independence of the jury.

Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the United States. Zenger was charged with publishing seditious libels against the governor of New York; it was clear he had published the writings in question. Although the court instructed the jury that it could only consider whether Zenger had printed the material at issue and could not consider the truth or falsity of the writing, the jury acquitted Zenger, believing that he had printed the truth and should not be convicted.”

As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850’s.” Even as late as 1910, Harvard Law School’s eminent Dean Roscoe Pound wrote: “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”

There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States. In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly – not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable). The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”

This anti-nullification view was expressed once again in Horning v. District of Columbia, where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law…” Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute] obviously the function of the jury if they do their duty is little more than formal.” While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since… on the facts admitted there was no doubt of his guilt.” In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury…”.

The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty, Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions…from respected sources – John Adams; Alexander Hamilton; prominent judges – that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power-signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.” However, he continued “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”

Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do what ever it willed.” Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”; as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary. Judge Bazelon, in dissent, critized as “sleight-of-hand” the practice of intentionally hiding the right of nullification – the existence of which the majority had acknowledged – from the jury.

Quoting the eminent District Judge Jack Weinstein, the author of this interesting article took a more progressive view on nullification: In spite of the recent trend towards discharging jurors who may nullify – a particular problem with the selection of jurors in capital cases – I am hesitant to dismiss intelligent prospective jurors. … Concerns about jury nullification are largely unwarranted. Differences about evaluation of the facts based on differing life experiences ought not to be mistaken for nullification. There is some tendency to nullify based on conscience or individual circumstance in the face of laws a juror believes to be unjust. In my courtroom, I do not instruct juries on the power to nullify or not to nullify. Such an instruction is like telling children not to put beans in their noses. Most of them would not have thought of it had it not been suggested. I do believe, however, that judges can and should exercise their discretion to allow nullification by flexibly applying the concepts of relevancy and prejudice and by admitting evidence bearing on moral values. Judge Bazelon was correct when he wrote: “I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just nullification doctrine.” Citations and footnotes omitted.

Thus, it appears, as succinctly stated by the learned judge in a federal gun trial in which I was defense counsel, that jurors do have the power, but not the right, to nullify in an appropriate case. It is occasionally for this reason, that no matter how strong the evidence, the trial is not “over” until the verdict comes in.

David A. Brener, Esq., a Fort Myers criminal defense attorney, is the current Chairperson of the Criminal Law Section of the Lee County Bar Association and the current CJA Representative for the Fort Myers division of the Middle District of Florida.

The Mitigation Specialist in a Capital Case

THE MITIGATION SPECIALIST AS AN INTEGRAL PART OF THE DEFENSE TEAM IN A CAPITAL MURDER CASE

Until the death penalty is formally waived in writing or on the record, a person charged with first degree murder is subject to the possible penalty of death. Section 921.141 Florida Statutes. The State does not need to file a formal Notice of Intention to Seek the Death Penalty in order to seek the execution of the Defendant. F.R.Cr.P. 3.202. A timely death notice simply triggers reciprocal discovery obligations on the Defendant with regard to evidence of mental mitigation. F.R.Cr.P 3.202. Thus, the fact that the State has not yet filed a Death Notice is of no moment, and counsel should therefore proceed as if the case is a capital one.

Defense counsel in a capital case has an immediate obligation to request of the Court the appointment of experts to assist the defense regarding both phases of a capital trial. See American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“the Guidelines” or “Guidelines”), 31 HOFSTRA LAW REV. (Summer 2003). “Counsel at every stage have an obligation to conduct thorough and independent investigation relating to the issues of both guilt and penalty.” Guideline 10.7, emphasis added. The Guidelines have been approved by the United States Supreme Court as “well defined norms”, Wiggins v. Smith, 539 U.S. 510 (2003), and “apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, [and] trial . . .”. Guideline 1.1.

Pursuant to the Guidelines, lead counsel should, “as soon as possible after designation … assemble a defense team by . . . selecting and making any appropriate contractual agreements . . . in such a way that the team includes:

a. at least one mitigation specialist and one fact investigator;

b. at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments; and

c. any other members needed to provide high quality legal representation.”

A mitigation specialist is more than simply an investigator for the penalty phase. She not only compiles a complete life history of the Defendant which may be presented to the capital jury, but is essential to developing and maintaining rapport with the client and his or her family. Perhaps as important, a mitigation specialist is essential to gathering and identifying mitigation evidence which may be used to persuade the State to not seek the death penalty or to waive death as a possible penalty after an initial decision to seek death has been made. Thus, a mitigation specialist has as much value at the early stages of a capital case as she has after a Death Notice has been filed by the State. As stated by the Commentary to Guideline 4.1 of the A.B.A. Guidelines:

A mitigation specialist is ... an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g. family sexual abuse) that the defendant may have never disclosed. They have the clinical skill to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf.

Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict. The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation.

The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.

For all of these reasons the use of mitigation specialists has become “part of the existing standard of care” in capital cases, ensuring “high quality investigation and preparation of the penalty phase.”

(Footnotes and citations omitted).

Defense counsel normally does not have the time or training to conduct the especially thorough investigation required for a defendant in a capital case. Even when counsel has personally identified numerous avenues of mitigation, a mitigation specialist can further develop that evidence and conduct necessary follow-up, whether in the field, with the client, or with documentary evidence. In sum, a mitigation specialist is an invaluable member of the defense team, and one which should be involved in every potential capital case at the earliest possible time.

David A. Brener is a Fort Myers criminal defense lawyer who concentrates on homicide, serious felony, and federal cases.

He is the Chairperson of the Criminal Law Section of the Lee County Bar Association.

The Privilege against Self-Incrimination

THE PRIVILEGE AGAINST SELF INCRIMINATION DURING

THE BOOKING PROCESS

The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757 (1966). The privilege exists to spare the accused from having to reveal, directly or indirectly, his knowledge of facts connecting him to the offense or from having to share his thoughts and beliefs. It does not protect an accused person from providing any evidence against himself, but only evidence that is “testimonial”. “In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201 (1988).

Thus, the results of a blood test are not testimonial, Schmerber v. California, supra, 384 U.S 757 (1966), nor is evidence of the refusal to take a blood test. South Dakota v. Neville, 459 U.S. 553 (1983). Similarly, handwriting exemplars, Gilbert v. California, 388 U.S. 263 (1967), voice exemplars, United States v. Dionisio, 410 U.S. 1 (1973), fingernail scrapings, Cupp v. Murray, 412 U.S. 291 (1973), and requiring the arrestee to put on a garment, Holt v. United States, 218 U.S. 245 (1910) or appear in a lineup, United States v. Wade, 388 U.S. 218 (1967) are not testimonial in a Fifth Amendment sense and do not implicate the privilege against self incrimination.

A defendant’s statement to police or police agents, however, is testimonial and is inadmissible if made in the absence of Miranda warnings and in response to questioning or interrogation. Bucknor v. State, 965 So.2d 1200 (4th DCA 2007 “Questioning” includes not only direct questions between the police and the suspect, but also discussion between the police officers themselves in the presence of the suspect, that is reasonably likely to lead to, or designed to lead to, an incriminating response. See Rhode Island v. Innis, 446 U.S. 291 (1980); Edwards v. Arizona, 451 U.S. 477 (1981).

During the booking and release process, arrestees are asked a series of questions, some of which may include requests for information that go beyond just the bare-bones biographical data. In Pennsylvania v. Muniz, 496 U.S. 582 (1990) a plurality of the Supreme Court carved out a “booking exception” to the Miranda rule, and held that questions may be asked of a suspect for the purpose of obtaining biographical data that may be necessary to complete the booking process or to provide pretrial services. Id. at 601. The proper post-arrest questions in the Muniz case, however, were identified as being “routine” and were somewhat benign, having concerned the defendant’s name, address, height, weight, eye color, date of birth and age. Id. at 987. The Court did rule inadmissible the unwarned question of when was the accused’s sixth birthday, as it was testimonial and required the suspect to communicate an assertion of fact or belief. “Testimonial” responses, said the Court, “must encompass all responses to questions that, if asked of a sworn suspect in a criminal trial, could place the suspect in the cruel trilemma” of remaining silent, telling the truth and incriminating himself, or giving a false statement. Id. at 597. “The vast majority of verbal statements thus will be testimonial because there are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” Id. (citation and quotations omitted).

A question by an impartial booking officer, which asks, for example, the arrestee’s occupation, to which he responds “assassin” or “drug dealer” might be considered to be unlikely to lead to an incriminating response, and therefore might not run afoul of the privilege, despite the clearly incriminating answer. On the other hand, if the officer doing the booking was the arresting officer, and he or she knew that the arrestee was an accused drug dealer, the question might be considered as being designed to lead to incriminating information, and might be inadmissible. Similarly, if during the pretrial services interview the arrestee is asked about his knowledge of, or relationship to the victim, this presents a much greater potential for incrimination, and since it is unnecessary for the officer to gather that information from the suspect herself, the warnings are probably required. “You mean the guy I killed?“ could easily be the answer. Even if the arrestee denies knowledge of the victim, her answer could tend to incriminate her, as the State may be in possession of other evidence which shows that they were indeed acquainted. In the Miranda decision itself, the Court recognized that no distinction should be drawn between statements which constitute full confessions, statements which contain admissions, and statements intended by the suspect to be merely exculpatory (but subsequently used by the prosecution), as all are “incriminating in any meaningful sense of the word and may not be used without the full warnings and [an] effective waiver.”

The gathering of information from the arrestee during the booking and release process potentially implicates the Self-Incrimination Clause. Even when the interrogatory which resulted in the self-incriminating answer is couched within a booking or pre-trial officer’s “standard” questionnaire, defense counsel should scrutinize the questions and make a determination whether the question was reasonably likely, given the case, to elicit a response that is self-incriminating, and one which is therefore protected by the privilege against self incrimination. Defense counsel should move to suppress incriminating statements made during the interview whenever the questioning goes beyond the typical biographical information, or whenever it appears that the interrogator already knew or could easily have found the answer but chose to elicit it from the arrestee’s mouth.

DAVID A. BRENER, Esq.

Chairperson, Criminal Law Practice Section

Lee County Bar Association,
Capital Qualified Criminal Defense Lawyer

ARRAIGNMENT EXCEPTION SWALLOWS RULE

ARRAIGNMENT EXCEPTION SWALLOWS RULE

In a typical felony case in Lee Circuit Court, defense counsel waives the arraignment by filing a written plea of not guilty. Florida Rule of Criminal Procedure 3.160 provides that the arraignment “shall be deemed waived” if the defendant is represented by counsel and he or she files a written plea of not guilty at or before arraignment. However, barring the filing of a written plea, the rules contemplate that the defendant will be present, either in open court or by audio-visual device, and will be called upon to plead to the charges, the substance of which will be read to him[1]. Rule 3.160(a) provides that:

The arraignment shall be conducted in open court or by audio-visual device in the discretion of the court and shall consist of the judge or clerk or prosecuting attorney reading the indictment or information on which the defendant will be tried to the defendant or stating orally to the defendant the substance of the charge or charges and calling on the defendant to plead thereto.

While the vast majority of incarcerated defendants are represented by public or private defense counsel who waive arraignment for their clients, thus eliminating the need for the defendant’s presence, there are cases and clients for whom counsel may choose not to waive the client’s presence. Sometimes there may be doubts or questions about the competence of the client, and defense counsel may want the court and prosecutor to personally see the behavior of the accused at the earliest opportunity. More frequently, defense counsel who was retained by family members at a point too close in time to the arraignment to visit the client at the jail before the hearing may want the defendant to be aware that counsel has been hired to represent her, and that a not guilty plea has been entered. Sometimes family members have traveled from out of town to see their loved one, who has been incarcerated for thirty three (33) days or more[2], and desire to see the client in court.

More fundamentally, unless waived, incarcerated defendants have the right to know whether charges have been filed, what the specific charges are, and when the next court date will be. They have the right to be informed of this in open court. Arraignment is the first hearing after formal charges have been filed, and thus is a critical stage of the proceedings. Any system which does not provide for the appearance of incarcerated non-capital felony defendants at arraignment would no doubt violate their most basic rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 16 of the Florida Constitution. Misdemeanor defendants are “present” at their arraignment, and incarcerated juveniles are physically brought to the courtroom. People who are charged with second degree murder, however, which carries a possible sentence of life imprisonment and for whom an indictment for capital murder may be contemplated, should also be brought over for arraignment unless specifically waived. While the budgetary concerns associated with transport or hooking up the existing audio-visual device in the jail to the courtrooms might concern some, the rights of the accused, and the appearance of not violating those rights, must be paramount. As stated by Rule 3.170, governing pleas, “[e]xcept as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant.” While this is not mandatory in the state court system[3], the defendant or defense counsel must have a meaningful choice to demand the presence of the defendant in court. Otherwise, the exception has swallowed the rule.

---

[1] Counsel may waive the formal reading of the charges. Rule 3.160(a).

[2] Arraignments are typically set thirty-three (33) days after arrest to avoid a release on recognizance. Rule 3.134(l).

[3] In some federal circuits, presence of the defendant at arraignment cannot be waived, absent good cause.

It's All Junk: Defense Counsel's Duty to Litigate Forensic Evidence

Recently, a sitting federal judge in Massachusetts issued an amazing pre-trial order – one that requires defense counsel to vigorously challenge fingerprint, ballistic, handwriting, and other trace evidence in pre-trial motions, or be prepared to explain why he or she failed to do so. Relying on the 2009 report of the National Resource Counsel (NRC), District Judge Nancy Gertner of the District of Massachusetts held, given that the court’s treatment of evidence relates directly to the adequacy of counsel’s treatment, it is incumbent upon defense counsel to not presume admissibility, and to challenge such evidence in pre-trial motion practice.

The NRC report noted:

That the forensic science disciplines exhibit wide variability with regard to techniques, methodologies, reliability, level of error, research, general acceptability, and published material….. Many of the processes used in the forensic science disciplines are … not based on a body of knowledge that recognizes the underlying limitation of the scientific principles and methodologies for problem solving and discovery…. [S]ome of these activities [encompassed by the term “forensic science’] might not have a well developed research base, are not informed by scientific knowledge, or are not developed within the culture of science.

A copy of the Order of the court is reprinted below:

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

GERTNER, D.J.

PROCEDURAL ORDER: TRACE EVIDENCE

March 2010

In the light of the 2009 report to Congress of a Committee of the National Academy of Sciences,' NATIONAL RESEARCH COUNCIL COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009) [hereinafter cited as NRC 2009], this Court orders the following:

At or prior to the pretrial conference, parties are ORDERED to:

a) identify whether or not they seek to introduce trace evidence;

b) state whether or not either party seeks a Daubert/Kumho hearing prior to trial; and,

c) state the witnesses required for the Daubert/Kumho hearing and the

exhibits that the parties seek to admit.

No later than two months before the pretrial conference, counsel must also indicate:

a) if counsel is appointed, whether expert funds are sought to deal with the

trace evidence;

b) whether all discovery obligations under the Local Rules have been met

or whether additional discovery required.

The NRC 2009 report, building on the writing of academic commentators, called for sweeping changes in the presentation and production of evidence of identification involving fingerprints, bullets, handwriting, and other trace evidence. The report noted:

that the forensic science disciplines exhibit wide variability with

regard to techniques, methodologies, reliability, level of error,

research, general acceptability, and published material. . . . Many

of the processes used in the forensic science disciplines are . . . not

based on a body of knowledge that recognizes the underlying

limitations of the scientific principles and methodologies for

problem solving and discovery. . . .[S]ome of these activities

[encompassed by the term “forensic science”] might not have a

well developed research base, are not informed by scientific

knowledge, or are not developed within the culture of science.

NRC 2009 - 1-3

While the report does not speak to admissibility or inadmissibility in a given case, it raised profound questions that need to be carefully examined in every case prior to trial: "1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards."

NRC 2009 S- 7.

The Report noted that these fundamental questions have not been “satisfactorily dealt with in judicial decisions pertaining to the admissibility” of evidence. Id. To be sure, the court’s treatment of this evidence relates directly to the adequacy of counsel’s treatment. See, e.g. Sturgeon v. Quarterman, 615 F. Supp. 2d 546, 572-573 (S.D. Tex. 2009) (defense counsel's failure to prepare a witness to testify about the unreliability of eyewitness identifications prevented defendant from presenting testimony that would have called into question the only direct evidence against him and was ineffective assistance of counsel warranting habeas relief);

Richter v. Hickman, 578 F.3d 944, 946-947 (9th Cir. Cal. 2009) (en banc) defense counsel ‘s failure to conduct an adequate forensic investigation with respect to blood spatter, serology, and pathology comprised ineffective assistance of counsel warranting habeas relief). See also United States v. Pena, 586 F. 3d 105 (1st Cir. 2009) (affirmed the court's decision not to hold aDaubert hearing on fingerprint testimony where counsel offered no expert or evidence.)

In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree -- the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. But see United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005). .

The NAS report suggests a different calculus -- that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.

SO ORDERED.

Date: March 2010 NANCY GERTNER, U.S.D.C.

As stated by one legal expert, “[j]ust because something’s been around for a hundred years doesn’t mean it’s reliable. Astrology has been around for centuries. The stakes are too high in our society to be using junk science and putting it before juries which think that it’s gold.”[1]

David A. Brener, Esquire is a Fort Myers criminal defense attorney who concentrates on homicide cases. He is the Chairperson of Criminal Law Section of the Lee County Bar Association, and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.

---

[1] John H. Couha, quoted in the Boston Globe, March 29, 2010.

Not Just Wishful Thinking: The ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases

The right to assistance of counsel is not only a right guaranteed under the Sixth Amendment, but is basic to the adversarial system of criminal justice, and is therefore part of the “due process” guaranteed by the Fourteenth Amendment. Faretta v. California 422 U.S. 806, 817 (1975). In Strickland v. Washington, 466 U.S. 668 (1984), a Florida case, the Supreme Court set forth the test for determining, under the Sixth Amendment, the standard for allegations of ineffectiveness. In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient, and that, due to that deficient performance, the defendant was prejudiced. Id., at 687. “Generally, prejudice is established by a finding that, but for the ineffective assistance of counsel, a reasonable probability exists that the outcome of the proceeding would have been different, or that as a result of the ineffective assistance, the proceeding was rendered fundamentally unfair.” State v. Lewis, supra, 838 So.2d 1102, 1112 (Fla. 2002).

In capital cases, not only are the Sixth and Fourteenth Amendments implicated, but the Eighth Amendment and its prohibition against cruel and unusual punishment apply to penalty phase issues. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty violates the Eighth Amendment ban on cruel and unusual punishment; Atkins v. Virginia, 536 U.S. 304 (2002) (execution of mentally retarded violates the Eighth Amendment); Lockett v. Ohio, 438 U.S. 586 (1978) (Eighth Amendment requires sentencer not to be precluded from considering any aspect of offense or defendant’s character as mitigating factor). Effective assistance in a capital case requires a thorough investigation of the defendant’s entire background and life history, and “the obligation to investigate and prepare for the penalty portion of a capital case cannot by overstated….” State v. Lewis, supra, 838 So.2d at 1113.

The American Bar Association (A.B.A.) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (hereinafter “Guidelines”or “A.B.A. Guidelines”) have been embraced by the Supreme Court as “well defined norms,” and are “standards to which [the court] long [has] referred as guides to determining what is reasonable.” Wiggins v. Smith, 539 U.S. 510, 524 (2003) (citations and internal quotation omitted). The Guidelines are intended to ensure the provision of “high quality legal representation” in capital cases, and apply from the moment the client is taken into custody for a homicide which could result in a possible sentence of death. Guideline 1.1.

The Guidelines cover a wide range of areas regarding the appointment and performance of counsel and the defense team, as well as funding, the duty of investigation, the duty to assert legal claims, to maintain communication with the client, to seek an agreed upon disposition, to facilitate the work of successor counsel, and to present mitigating evidence. They provide for a “responsible agency” apart from the judiciary and the Bar to adequately monitor and remove attorneys who fail to provide “high quality representation,” and require attorneys involved in capital defense to limit their workloads so as to accomplish this important goal.

The Guidelines “provide that investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravators that may be introduced by the prosecutor.” Wiggins, supra, 539 U.S. at 524. (Citations and internal quotation omitted). This, according to the Court, includes at a minimum “medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.” Id.

In addition to Wiggins, supra, the Supreme Court reiterated the importance of the Guidelines in several other cases, including Rompilla v. Beard, 545 U.S. 374, 389, n.7 (“The A.B.A. Guidelines relating to death penalty defense are … explicit: Counsel must … investigate prior convictions … that could be used as aggravating circumstances or otherwise come into evidence”), Florida v. Nixon, 543 U.S. 175, 191-192, n.6 (“If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client’s trial rights,” citing Guideline 10.9.2 Commentary (rev. ed. 2003), and Williams v. Taylor, 529 U.S. 362, 396 (2000) (“Whether or not these omissions were sufficiently prejudicial to have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background”) (citing A.B.A. Standards, 1980).

The Florida courts have also cited the Guidelines in determining whether counsel’s conduct is reasonable in the context of capital litigation. In Henry v. State, 937 So.2d 563 (Fla. 2006), the supreme court stated that “[c]ertainly, both Wiggins and the A.B.A. Guidelines for Appointment and Performance of Counsel in Death Penalty Cases section 10.11 (rev. ed. 2003) on counsel’s duties mandate mitigation investigation, even if the client objects.” Id., at 573.

In Peterka v. State, 890 So.2d 219 (Fla. 2004) the court again quoted Wiggins and cited the A.B.A. Guidelines for the proposition that counsel should make efforts to discover any available mitigating evidence and evidence that rebuts the aggravating factors listed in Florida Statute 921.141(5). Id., at 236.

In Armstrong v. State, 862 So.2d 705 (2003), Justices Anstead and Pariente noted in concurrence that “the A.B.A. Guidelines that the Supreme Court concluded should have guided counsel’s investigation in Wiggins should have provided similar guidance to Armstrong’s counsel.” Id., at 723. The Guidelines, said the learned Justices, “underscore not only the importance of defense counsel’s investigation into mitigating factors, but also the understanding that often strategy shifts between the penalty and guilt phases of a capital trial.” Id. Although preparation for both phases is essential, the justices noted that “the penalty phase of a death penalty trial is constitutionally different from sentencing proceedings in other criminal cases.” Id., citing Guidelines 11.8.1 (1989). The opinion, after noting that the Wiggins court “relied heavily on the A.B.A. standards for … determining what is reasonable,” Id., at 722, concluded by stating that “[our] hope is that judges and lawyers will heed the message of Wiggins.” Id., at 725. (Internal quotations and citations omitted).

In Kilgore v. State, 933 So.2d 1192 (2^nd D.C.A. 2006), the court noted that the United States Supreme Court has “time and again [cited to] the standards for capital defense work articulated by the American Bar Association as guides.” Id., at 1196. Thus, even though the Guidelines have not been formally adopted in Florida, Id., the Wiggins, case “now stands for the proposition that the A.B.A. standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the prevailing professional norms….” Hamblin v. Mitchell, 354 F.3^rd 482, 486 (6^th Cir. 2003). These standards represent “a codification of long standing common sense principles of representation understood by diligent competent counsel in death penalty cases. The A.B.A. standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of long standing norms referred to in Strickland in 1984 as ‘prevailing professional norms’.” Hamblin, supra, 354 F.3^rd at 487.

Given the evolution of death penalty jurisprudence in the last several years, and the codification of standards requiring “high quality legal representation”, it is no longer sufficient for counsel, for example, to simply put the defendant’s mother on the witness stand in the penalty phase of a capital trial and let her cry in front of the jury. Defense counsel must seek and receive expert assistance, must consider presenting psychiatric, neuropsychological, intelligence, and brain scan testing, and must investigate all aspects of the client’s background, character, and record. Although a mitigation specialist is no doubt an essential member of the defense team, the ultimate responsibility, pursuant to caselaw and the Guidelines, rests with defense counsel. If counsel is to provide the required level of high quality representation, the courts must give him or her the resources, assets, and funding to accomplish this important goal. The matter of life and death deserves no less, and the law of the land requires it.

In sum, the Guidelines are not just wishful thinking. Indeed, in light of the scrutiny which capital cases receive, they are wise practice for judges to help implement, and capital defense lawyers to follow. The Guidelines may be found at 31 Hofstra Law Review (Summer 2003), or on the American Bar Association website, www.abanet.org.

David A. Brener, Esquire is a Fort Myers criminal defense attorney who concentrates on homicide cases and is the Chairperson of Criminal Law Section of the Lee County Bar Association, and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.