Attorneys David A. Brener and Thomas E. DeMine 239-332-1100 have relocated their offices back to downtown Fort Myers. The Firm will still be known as the Law Offices of Brener and DeMine, P.A., and will still handle all state and federal crimes, including Murder and other Violent Crimes, Narcotics Offenses, Thefts, Frauds, and White Collar Crimes, Sex Offenses, Probation and Control Release Violations, and Driving Charges and DUI. The Firm will be located at 2550 First Street, Fort Myers, Fl. 33901.
Brener and Demine, P.A.
http://www.justiceisourpassion.cim
239-332-1100
Tuesday, December 20, 2011
Wednesday, December 14, 2011
Attorney Thomas E. DeMine of Brener and DeMine, P.A. 239-332-1100 Elected President of Lee County Chapter of Florida Association of Criminal Defense Lawyers
Congratulations are in order for Attorney Thomas E. DeMine of the Law Offices of Brener and DeMine, P.A., who was recently elected President of the Florida Association of Criminal Defense Lawyers, Lee County Chapter, for the year 2012. Tom is a Partner in Brener and DeMine, P.A., which focuses on state and federal criminal defense, including murder and other violent crimes, narcotics offenses, sex crimes, conspiracy, firearms and weapons offenses, probation and control release violations, driving charges and DUI, as well as thefts, frauds, and white collar crimes. Tom DeMine is a former Lee County Prosecutor, and is admitted in all the courts of the state, as well as the United States District Court for the Middle District of Florida.
Law Office of Brener and DeMine, P.A.
2550 First Street
Fort Myers, Fl. 33901
239-332-1100
www.justiceisourpassion.com
Law Office of Brener and DeMine, P.A.
2550 First Street
Fort Myers, Fl. 33901
239-332-1100
www.justiceisourpassion.com
Thursday, December 8, 2011
Florida Murder Lawyer and Fort Myers Attorney David A. Brener 239-332-1100 Gets Client 10 Years In Cape Coral Strangulation Case
Florida Murder Attorney David A. Brener 239-332-1100 based in Fort Myers recently persuaded the state attorney's office to abandon murder charges against his client, Mathew Gullett of Cape Coral, who was accused of strangling his girlfriend to death, leaving her body in a bathtub, and fleeing to Ohio, where he was shot by police during his apprehension. Gullett allegedly admitted committing the homicide to several people, including emergency personell, friends and family. After investigating the case and preparing for trial, the defense was able to persuade the prosecutor to reduce the charge to manslaughter, and to a sentence of ten years incarceration. With credit for time served and gain time, Gullett, who was facing true life in prison, will be out of jail in approximately six (6) years, while he is still in his thirties.
Brener and DeMine, P.A.
2550 First Street
Fort Myers, Fl. 33901
239-332-1100
www.murderlawyerflorida.com
Brener and DeMine, P.A.
2550 First Street
Fort Myers, Fl. 33901
239-332-1100
www.murderlawyerflorida.com
Thursday, August 11, 2011
Lee County and Fort Myers Murder Lawyer David A. Brener 239-332-1100 Gets Murder Charges Dismissed in "Steak N Shake" Case
Fort Myers and Lee County Murder Lawyer Attorney David A. Brener 239-332-1100 recently persuaded the state attorney's office to dismiss murder, home invasion robbery, and aggravated battery with a firearm charges against his client, Patrick Nelson, in the Cape Coral "Steak N Shake" murder case. The client pled to one count of burglary while armed, and received a sentence of 120 months in prison, less approximately 20 months time already served. He was originally facing two life sentences plus 45 years.
Wednesday, May 4, 2011
The Judicial Overrride of Life or Death Recommendations in Capital Cases in Florida, by David A. Brener, Esq.
THE JUDICIAL OVERRIDE OF THE JURY’S LIFE OR DEATH RECOMMENDATIONS IN CAPITAL CASES IN FLORIDA, by David A. Brener, Esq.
In Florida, judicial overrides in capital cases have been part of our statutory scheme since 1972, when the trial judge became the actual sentencer in capital cases. Prior to that, the jury sentenced the defendant to either death or life imprisonment. An override occurs when a judge sentences a capital defendant to a sentence that is different than the one recommended by a majority of the jury. The override was initially intended as a way to protect a capital defendant from a jury recommendation based on juror emotion, and without the experienced perspective and dispassionate analysis that a judge has in comparing the capital case to other first degree murder cases. Judges were an extra level of protection for the capital client.
In practice, however, historically most judicial overrides, rather than protecting the defendant from an impassioned, wayward jury, were life to death overrides where the court sentenced the defendant to death notwithstanding a jury recommendation of life. Many have speculated that political considerations, re-election hopes, and the desire to appear tough on crime are responsible for the large number (at least 167) of life to death overrides in Florida. In Tedder v. State, 322 So.2d 908 (Fla. 1975), although the Florida Supreme Court approved of life to death overrides only in circumstances where clear and convincing evidence showed that no reasonable person could differ that death was the only appropriate penalty, the liberal use and supreme court affirmance of the override, even in cases where heavy majorities voted for life, undermined the strong language allegedly restricting its use.
Ring v. Arizona, 536 U.S. 584, (2002), cast doubt on the continued viability of life to death overrides, as the jury’s recommendation of life may well constitute a “verdict” to the effect that the aggravating circumstances were not proven beyond a reasonable doubt, or were “insufficient” to justify the imposition of the death penalty. See Florida Standard Jury Instruction 7.11. Thus, life to death overrides may well violate the defendant’s Sixth Amendment right to Trial by Jury as announced in Ring, and in any event, the law now appears to preclude such an override unless there is no mitigation in the record to support a life recommendation. See e.g., Ferry v. State, 507 So.2d 1373, 1376-77 (Fla. 1987); Boyett v. State, 688 So.2d 308, 310 (Fla. 1996).
On the other hand, death to life overrides are still cognizable in Florida. Since 1992, there have been 36 judicial sentences to life after a jury recommendation of death. The percentage of death to life overrides, as one might expect, decreases as the number of jurors voting for the death penalty increases, with the highest number of overrides (13) occurring when the vote was 7-5 in favor of the death penalty, and only two (2) cases where the vote was 12-0 in favor of the ultimate punishment. The reasons for the judges’ decisions to override the recommendations of the juries vary, and demonstrate how conscientious and, indeed judicious, are some members of our judiciary. While most death to life overrides result in no public criticism of the overriding judge, and no election challenge, most judges are nevertheless aware of the mob and pro-death mentality which accompanies high profile capital cases. To ignore those social and political considerations and do what the court thinks is right, is the epitome of what it means to be a judge, and is one very important reason for the independence of our third branch of government.
According to Professor Michael Radelet’s research, since 1992 sixteen (16) overrides were based, in part, on the defendant’s mental illness or retardation, nine (9) overrides were based on questions about intent or premeditation, thirty-five (35) where the mitigation outweighed the aggravation, eleven (11) involved consideration of the defendant’s lack of criminal record, and others included questions about who was the triggerman, or considered the defendant’s remorse, responsibility or cooperation. Several local judges issued death to life overrides in high profile capital cases, including the Honorable Thomas S. Reese (3), William Nelson (3), Isaac Anderson, and Edward J. Volz. The current judicial college death penalty lecturer, a proponent of capital punishment, the Honorable O.H. Eaton, has overridden a jury recommendation of death to life on more than one occasion.
Given the existence of the death penalty in Florida, perhaps our tripartite system of capital punishment – a separate penalty phase, a jury recommendation, and a sentence issued by a judge - can indeed afford an added level of protection to capital defendants, at least when the Court gives meaning to the mitigating evidence in the case, is precluded from overriding a life recommendation, and reserves the ultimate penalty for the truly worst of the worst.
David A. Brener is a Fort Myers criminal defense lawyer who concentrates on homicide and serious felony cases, and is the Chairperson of the Criminal Law Practice Section of the Lee County Bar Association.
In Florida, judicial overrides in capital cases have been part of our statutory scheme since 1972, when the trial judge became the actual sentencer in capital cases. Prior to that, the jury sentenced the defendant to either death or life imprisonment. An override occurs when a judge sentences a capital defendant to a sentence that is different than the one recommended by a majority of the jury. The override was initially intended as a way to protect a capital defendant from a jury recommendation based on juror emotion, and without the experienced perspective and dispassionate analysis that a judge has in comparing the capital case to other first degree murder cases. Judges were an extra level of protection for the capital client.
In practice, however, historically most judicial overrides, rather than protecting the defendant from an impassioned, wayward jury, were life to death overrides where the court sentenced the defendant to death notwithstanding a jury recommendation of life. Many have speculated that political considerations, re-election hopes, and the desire to appear tough on crime are responsible for the large number (at least 167) of life to death overrides in Florida. In Tedder v. State, 322 So.2d 908 (Fla. 1975), although the Florida Supreme Court approved of life to death overrides only in circumstances where clear and convincing evidence showed that no reasonable person could differ that death was the only appropriate penalty, the liberal use and supreme court affirmance of the override, even in cases where heavy majorities voted for life, undermined the strong language allegedly restricting its use.
Ring v. Arizona, 536 U.S. 584, (2002), cast doubt on the continued viability of life to death overrides, as the jury’s recommendation of life may well constitute a “verdict” to the effect that the aggravating circumstances were not proven beyond a reasonable doubt, or were “insufficient” to justify the imposition of the death penalty. See Florida Standard Jury Instruction 7.11. Thus, life to death overrides may well violate the defendant’s Sixth Amendment right to Trial by Jury as announced in Ring, and in any event, the law now appears to preclude such an override unless there is no mitigation in the record to support a life recommendation. See e.g., Ferry v. State, 507 So.2d 1373, 1376-77 (Fla. 1987); Boyett v. State, 688 So.2d 308, 310 (Fla. 1996).
On the other hand, death to life overrides are still cognizable in Florida. Since 1992, there have been 36 judicial sentences to life after a jury recommendation of death. The percentage of death to life overrides, as one might expect, decreases as the number of jurors voting for the death penalty increases, with the highest number of overrides (13) occurring when the vote was 7-5 in favor of the death penalty, and only two (2) cases where the vote was 12-0 in favor of the ultimate punishment. The reasons for the judges’ decisions to override the recommendations of the juries vary, and demonstrate how conscientious and, indeed judicious, are some members of our judiciary. While most death to life overrides result in no public criticism of the overriding judge, and no election challenge, most judges are nevertheless aware of the mob and pro-death mentality which accompanies high profile capital cases. To ignore those social and political considerations and do what the court thinks is right, is the epitome of what it means to be a judge, and is one very important reason for the independence of our third branch of government.
According to Professor Michael Radelet’s research, since 1992 sixteen (16) overrides were based, in part, on the defendant’s mental illness or retardation, nine (9) overrides were based on questions about intent or premeditation, thirty-five (35) where the mitigation outweighed the aggravation, eleven (11) involved consideration of the defendant’s lack of criminal record, and others included questions about who was the triggerman, or considered the defendant’s remorse, responsibility or cooperation. Several local judges issued death to life overrides in high profile capital cases, including the Honorable Thomas S. Reese (3), William Nelson (3), Isaac Anderson, and Edward J. Volz. The current judicial college death penalty lecturer, a proponent of capital punishment, the Honorable O.H. Eaton, has overridden a jury recommendation of death to life on more than one occasion.
Given the existence of the death penalty in Florida, perhaps our tripartite system of capital punishment – a separate penalty phase, a jury recommendation, and a sentence issued by a judge - can indeed afford an added level of protection to capital defendants, at least when the Court gives meaning to the mitigating evidence in the case, is precluded from overriding a life recommendation, and reserves the ultimate penalty for the truly worst of the worst.
David A. Brener is a Fort Myers criminal defense lawyer who concentrates on homicide and serious felony cases, and is the Chairperson of the Criminal Law Practice Section of the Lee County Bar Association.
Friday, April 29, 2011
Fort Myers and Lee County Criminal Lawyers Brener and DeMine, P.A. 239-332-1100 Practice Exclusively Criminal Law
Fort Myers and Lee County Criminal Lawyers Brener and DeMine, P.A. 239-332-1100 limit their practice to criminal defense, and do not dabble in it or other areas of law. We are extremely serious about defending people who are charged with crimes, many of them very serious ones, and defending all of our rights to due process and equal protection of the law. Unlike many other criminal law firms locally and in the region, we do not do personal injury, family law, bankruptcy, foreclosure, entertainment, or real estate law. We focus exclusively on criminal defense, and provide 100% of our efforts in that area. If you or someone you know has been charged with a misdemeanor, felony, serious felony, homicide, or federal offense, experience and committment really does matter. Remember, Accused of a Crime? Call Brener and DeMine. Justice Is Our Passion!
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
http://www.murderlawyerflorida.com
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
http://www.murderlawyerflorida.com
Thursday, April 28, 2011
Florida Murder Lawyer - Death Penalty Overrides To Life Sentences By Conscientious Florida Judges
The following information on death to life overrides in Florida was compiled by Michael Radelet. Many of the reasons for the overrides are attached in tables at the end of the list of cases. Bear in mind that there are many more life to death overrides in Florida, although in recent years this practice has subsided due to caselaw requiring that the evidence demonstrates so clear and convincingly that no reasonable person could dffer that the death penalty is the only appropriate punishment. See e.g., Tedder v. State, 322 So.2d 908 (Fla.1975). It is questionable whether Tedder survived Ring v. Arizona, 536 U.S. 584 (2002), as an argument can be made that a majority of the jury found the aggravation not proven or insufficient to justify the death penalty.
Death-to-Life Overrides in Florida
1992-Present1
Jan. 27, 2011 (n=36, plus 51 from 1992 = 87)
Michael L. Radelet
University of Colorado2
1. Armour, Donald Hugh
March 1976
New Port Richey
Trial Judge: Lawrence E. Keough
Jury Recommendation: Unknown
Defense Attorney: Robert Focht
Case Synopsis: Convicted of killing one of his two wives, Jacqueline, shortly after she
learned that Armour was also married to the other woman.3 Armour immediately turned
himself into the police and confessed. Judge Keough overrode the jury’s recommendation of
death, “apparently considering Armour’s lack of a previous criminal record and his physical
and mental state at the time of the crime.”4 Armour died in prison on Dec. 1, 2007.
2. Barber, Justin
September 2006
St. Augustine
Jury recommendation: 8-4
Trial Judge: Edward Hedstrom
Defense Attorney: Robert Willis
Case Synopsis: Convicted (after four days of deliberation) of killing his wife, April Barber,
during a stroll on the beach. Barber refused to allow his family to testify during the penalty
phase and refused to ask for leniency, steadfastly maintaining his innocence. Consequently,
the penalty phase consisted of a three-minute statement from the defense attorney, during
which the attorney advised the jury that Mr. Barber did not want to present mitigation for an
act for which he was not responsible. The judge explained his decision on the basis of the
fact that the jury did not hear any mitigation, and thus their opinion did not hold great weight.
This report updates Michael L. Radelet & Michael Mello, Death to Life Overrides: Saving the Resources of the
Florida Supreme Court, 20 FLORIDA STATE UNIVERSITY LAW REVIEW 195 (1992). My friend and co-author, Mike
Mello, passed away on November 23, 2008. Our 1992 FSU paper documented 51 death-to-life overrides through
the end of 1991 that had been given to 47 defendants. I know of only one death-to-life override prior to Dec. 31,
1991 that was not included in that paper (case of David Armour, infra).
2 Please send any edits, corrections, updates, etc. to. I plan to post periodic updates to
this paper on my web site,.
3 Cary Davis, Man Who Killed His Wife Might Be Set Free, ST. PETERSBURG TIMES, Feb. 16, 2003.
4 David M. Snyder, Despite Jury’s Recommendation, Armour Gets Life Term for Murder, ST.
PETERSBURG TIMES, March 19, 1976, available at http://news.google.com/newspapers?
nid=888&dat=19760319&id=3SEMAAAAIBAJ&sjid=UF0DAAAAIBAJ&pg=5505,2654187.
It is likely that lingering doubts about the defendant’s guilt also played a role.5
3. Barnes, Corrie D.
July 2004
Shalimar
Jury recommendation: 7-5
Trial Judge: Thomas Remington
Defense Attorneys: Jerry T. Allred and Martin Lester
Case Synopsis: Sentenced to two life terms for shooting and killing Edward Carthon, and
then firing shots at an Okaloosa County Sheriff’s Deputy (the latter resulted in a conviction
for attempted first-degree murder). Mr. Carthon’s widow had argued in favor of a life
sentence, stating after the verdict “It’s a big relief … I accept what they gave him and I’m
proud they did justice.” According to newspaper reports, the defense attorneys “presented
testimony indicating Barnes had suffered several head injuries as a child and that lingering
effects from those injuries could have affected his behavioral patterns.” They also argued
that there were lingering doubts about guilt.6
4. Bennett, Christopher Lamont
May 2006
Key West
Jury recommendation: 10-2
Trial Judge: Leonard Glick (visiting judge)
Defense Attorney: Trish Docherty
Case Synopsis: Convicted of killing his 5-year old son, Zachary. Some 40 family members
attended the sentencing hearing to support Christopher’s plea to be spared the death penalty.
Said the trial judge, “In weighing the aggravating circumstances against the mitigating
circumstances, the scales of life and death tilt to the side of life in state prison without the
possibility of parole.”7 The mother and grandmother of the victim settled a civil suit against
the Department of Children and Families for $160,000 for placing the boy in the custody of
his father, despite his long criminal record.8
5. Carpenter, David Charles
June 2003
Largo
Jury recommendation: 7-5
Trial Judge: Dee Anna Farnell
Defense Attorneys: D. Robert Lewis and Robert Ford
Barber v. State, 4 So.3d 9 (2009); Christina Abel, Barber Vows to Pursue Vindication: Judge Gave Man Life in
Prison Because Defense Offered No Testimony at His Sentencing, FLORIDA TIMES-UNION, Sept. 20, 2006; Letter
from Robert Stuart Willis to MLR (June 24, 2008).
6 Jeff Ayres, Judge Rejects Jury’s Recommendation, Declining to Elaborate on His Decision, NORTHWEST FLORIDA
DAILY NEWS (Ft. Walton Beach), Jul. 31, 2004.
7 Christine Braden, Bennett Spared Death Sentence: Judge Hands Down a Life Prison Term, FLORIDA KEYS
KEYNOTER (Marathon), May 24, 2006.
8 Man Found Guilty of Stomping his 5-Year-Old Son to Death, GAINESVILLE SUN, Feb. 14, 2006.
Case Synopsis: This was the third time that Mr. Carpenter had been sentenced for the murder
of Ann Powell, age 63. In 1996, Carpenter was sentenced to death following a 7-5 jury
recommendation, but this recommendation was thrown out by the trial judge because the jury
was told that he may be eligible for parole if sentenced to life. He resentenced to death in
1997 after a new jury voted 10-2 for death. That conviction was thrown out by the Florida
Supreme Court in 2001.9 In 2003, Judge Farnell rejected the jury’s recommendation of death
because she “didn’t think prosecutors proved Carpenter was more responsible for the 1994
killing than a friend who also participated.”10 Carpenter may have also had a lesser role in
the murder than the accomplice (a juvenile who pled to second degree murder).
6-7. Chilmonik, Adam and David Hubbard
March 1994
Ft. Myers
Jury recommendation: 8-4 for Chilmonik; 9-3 for Hubbard
Trial Judge: William Nelson
Defense Attorneys: Dennis J. Rehak, for Chilmonik; Barbara LeGrande for Hubbard
Case Synopsis: Convicted of the murder of a clerk at a 7-11, Steven Reid, during a
robbery. The judge felt that premeditation was never proven and that it was impossible to
tell who pulled the trigger. In addition, the judge found that because of excessive alcohol
consumption, Chilmonik’s capacity to conform his conduct to the requirements of the law
was impaired. Chilmonik was aged 18 at the time of the offense.11
8. Davis, Darrell
June 1997
Jacksonville
Jury recommendation: 7-5
Trial Judge: Henry Davis
Defense Attorney: Jerry Shea
Case Synopsis: Davis and a friend, Robert Thomas, were convicted of kidnapping two
victims (one male and one female), robbing and raping the woman and killing the man,
Imara Skinner.12 In sentencing Davis to life, the trial judge said that “Evidence did not show
Darrell Davis knew Thomas would kill Skinner.”13 Thomas was originally sentenced to
death for the murder, but this sentence was vacated,14 and in 2000 he was resentenced to 45
years.15
Carpenter v. State, 785 So.2d 1182 (2001).
William R. Levesque, Judge Reduces Death Sentence to Life in Prison, ST. PETERSBURG TIMES, June 24, 2003;
David Sommer, Killer’s 3rd Sentence Yields Life Term, TAMPA TRIBUNE, June 24, 2003.
11 Bob Norman, Judge Spares Lives of 2 Men, NEWS-PRESS (Ft. Myers), Mar. 17, 1994.
12 Vivian Wakefield, Retrial Plea Closes ’96 Murder Case, FLORIDA TIMES-UNION, Nov. 3, 2000.
13 Beau Halton, Judge Overrules Death Sentence, FLORIDA TIMES-UNION, June 27, 1997.
14 Thomas v. State, 748 So.2d 970 (1999).
15 Vivian Wakefield, Retrial Closes ’96 Murder Case, FLORIDA TIMES UNION, Nov. 3, 2000.
March 1998
Ft. Myers
Jury Recommendation: 7-5
Trial Judge: Isaac Anderson
Defense Attorney: Kenneth Garber
Case Synopsis: Durain was visiting Ft. Myers and staying with a friend and the friend’s
roommate, Glenn Harkins. Durain’s car had been stolen and he had lost his job. After a
day of drinking, Durain and Harkins got into a fight (allegedly after Harkins teased Durain
by calling him a “mama’s boy”). Later that day, Harkins was beaten with a bat and a plastic
bag was placed over his head. Prosecutors claimed that he had been attacked in his bed as
he slept.16 According to newspaper reports, Judge Anderson “ruled that the one aggravating
factor that went toward the death penalty – that the slaying was especially heinous,
atrocious or cruel – was outweighed by several mitigating factors for a life sentence.”17
10. Galloway, David
November 1998
Largo
Jury recommendation: 7-5
Trial Judge: David Seth Walker
Defense Attorney: Anne Borghetti
Case Synopsis: Convicted of killing a two-week child who he erroneously believed was his
son. Judge Walker cited Galloway’s lack of a prior record and evidence of severe mental
retardation.18
11. Gatlin, Brandan
December 2004
Bartow
Jury Recommendation: 12-0
Trial Judge: Dennis Maloney
Defense Attorneys: Robert Norgard and Deborah Wells
Case Synopsis: Convicted of the murder of a Lakeland convenience store owner, (Ms.)
Varsha Patel. Judge Maloney found that there was intent to rob, but not kill, and his order
focused heavily on Gatlin’s chaotic childhood. Gatlin had a prior conviction for robbing a
pizza deliveryman. In 2001, while in jail awaiting trial for the murder, Gatlin and another
inmate severely beat another jail inmate, leaving the victim for six months in a coma. Both
men received 30-year sentences for that crime.19
Peter Franceschina, Killer Out to Sue Sheriff, NEWS-PRESS (Ft. Myers, Fla.), June 4, 2000.
Florida Digest, Lee County, Life Sentence, NEWS-PRESS (Ft. Myers, Fla.), Mar. 26, 1998.
18 William R. Levesque, Man Gets Life Term for Death of Baby, ST. PETERSBURG TIMES, Nov. 14, 1998.
19 Jason Geary, Convict Escapes Death: Judge Rejects Jury’s Choice and Sends Murderer to Prison for Life,
LAKELAND LEDGER, Dec. 18, 2004.
Tampa
Jury Recommendation: 8-4
Trial Judge: J. Rogers Padgett
Defense Attorney: Deborah Goins
Case Synopsis: Convicted of killing a female acquaintance, DeCarla Dixon, who had
cerebral palsy and could not walk. The victim was stabbed 39 times, left in her home, and
her very young children came home and found her on the floor. Her dying declaration
named “Troy”. Testimony at the penalty phase revealed that Green had a low IQ and
neuropsychological deficits. Judge Padgett determined that the murder was not “especially
heinous, atrocious or cruel,” and that the mitigation was sufficient to overcome aggravating
circumstances.20
13. Grodin, Justin
September 2009
Ft. Myers
Trial Judge: Edward Volz, Jr.
Jury Recommendation: 10-2
Defense Attorneys: Ray LeGrande and John Mills
Case Synopsis: Convicted of killing his 11-month old stepdaughter. After the death,
Grodin and his wife, Mary (who was convicted of child abuse for her role in the case, and
sentenced to 13 years in prison21), buried the baby and fled to Seattle, where they were
arrested. Justin Grodin was repeatedly found incompetent to stand trial. In sentencing him
to life imprisonment, Judge Volz cited Grodin’s lifelong history of mental illness (including
two stays in a mental hospital), his tumultuous childhood, and the lack of evidence that he
intended to kill the baby. He also noted the culpability and disparate treatment of Mary
Grodin. “Although three aggravating circumstances were established, they simply do not
rise to the level whereby this case could be characterized as one of the most aggravated. …
The court concludes that this homicide, though despicable, does not place it in the category
of the most aggravated and least mitigated for which the death penalty is appropriate.”22
After the sentence was announced, State Attorney Anthony Kunasek said that he was not
disappointed, since jurors often cast death penalty votes based on emotion, not the law.23
14. Harris, Alfred B.
May 2002
Tampa
Jury recommendation: 10-2
Trial Judge: J. Rogers Padgett
Defense Attorney: Robert Fraser
Joshua B. Good, Judge Rejects Opinions of Jurors, Orders Life Sentence, Not Death, TAMPA TRIBUNE, Mar. 18,
2003; Rejecting Jury, Judge Gives Life, ST. PETERSBURG TIMES, Mar. 19, 2003; E-mail from Deborah Goins to
MLR (June 5, 2008).
21 Pat Gillespie, Mary Grodin Sentenced to 13 Years, NEWS-PRESS (Ft. Myers, Fla.), Sept. 22, 2009.
22 Sentencing Order, State v. Grodin, Case No. 00CF3779 (Sept. 18, 2009), at 12-13.
23 Pat Gillespie, Nine Years Later, Child Killer Justin Grodin Gets Life, NEWS-PRESS (Ft. Myers, Fla.), Sept. 19,
2009.
Case Synopsis: Convicted of burglarizing the home of 71-year old Raymond Brooks, beating
him with an iron skillet, killing him with a butcher knife, and then raping Mrs. Brooks. In
sentencing Harris to life in prison, Judge J. Rogers Padgett noted Brooks died suddenly, and
may not have been fully aware of what was happening to him. The defense argued that the
blow from the skillet stunned Brooks, or even knocked him out, before the knife attack. As
recounted by a newspaper report, Judge Padgett wrote in his order that “This killing is not
one of the most wicked of the wicked for which the death penalty is reserved …” Padgett
concluded that “the jury’s call for death was skewed by emotionally wrenching testimony
about the rape of Brooks’ wife. But Brooks was already dead when that happened.” The
newspaper report continued, “The undisputed depravity of the killer’s youth also tilted the
judge toward mercy. According to testimony, Harris was raised by a neglectful mother who
encouraged his criminality. When Harris was about 11, for instance, he helped his mother
rob men she lured into the woods with the promise of sex. Padgett called the neglect and
abuse Harris suffered ‘as bad as, if not worse than, any this court has ever heard,’ adding that
he was “destined to end up where he is now.”24
15. Heyne, Justin
December 2009
Viera
Jury recommendation: 8-4
Trial Judge: O.H. Eaton
Defense Attorney: Randy Moore
Case Synopsis: Heyne was convicted of killing Sarah Buckoski, her boyfriend, Benjamin
Hamilton, and their 5-year-old daughter, Ivory. Hamilton and Heyne had been best friends
and heavily involved in drug dealing; Heyne had been living with the family when the
murders occurred. The jury voted 8-4 to recommend a death sentence for Buckoski’s death,
but Judge Eaton rejected this vote and sentenced Heyne to life imprisonment on this count.
Following jury recommendations, Heyne was sentenced to life for the murder of Benjamin
Hamilton, and to death for the murder of the child. In his sentencing memorandum, Judge
Eaton found that Heyne had a significant history of mental illness that outweighed any
aggravation in the case.25
16. Jamison, Lewis
October 1995
Bartow
Jury recommendation: 8-4
Trial Judge: J. Tim Strickland
Defense Attorney: Robin Matis-Jackson
Case Synopsis: Jamison, aged 64, was convicted of shooting Matthew Roosevelt Biggs, aged
65, during an argument. Jamison had a 1970 conviction for manslaughter in South Carolina
and a sexual battery with slight force in 1981. Jamison was intoxicated at the time of the
Christopher Goffard, Judge Rejects Death for Killer, ST. PETERSBURG TIMES, May 7, 2002.
Sentencing Order, State v. Justin Heyne, Case No. 2006-CF-19237-A (Brevard County) (Dec. 17, 2009); Keyonna
Summers, Killer Justin Heyne Gets Death Penalty, FLORIDA TODAY (Titusville), Dec. 17, 2009.
crime, and the judge cited both his age and his alcoholism in his decision.26
17. Johnson, Lloyd
June 2004
West Palm Beach
Jury recommendation: 7-5
Trial Judge: Stephen Rapp
Defense Attorneys: Phillip Massa (penalty phase) and Robert Gershman
Case Synopsis: Convicted, with Randall Leighty, of killing three women, execution style,
during the robbery of a Greenacres restaurant. The men were tried together with separate
juries. Johnson’s jury recommended death; Leighty’s recommended life (10-2).27
Consequently, Johnson’s attorneys advanced a proportionality claim, arguing that equally
culpable defendants should receive similar sentences. There was no consensus on who did
the shooting or on who possessed the gun.28
18. Knight, Ronald
December 1995
W. Palm Beach
Jury recommendation: 12-0
Trial Judge: Edward Rodgers
Defense Attorney: Gregg Lerman
Case Synopsis: Convicted of killing Brendan Meehan, who was chosen as a victim because
he was gay. The jury spent only 19 minutes deliberating on penalty, and Judge Rodgers said
that was insufficient to properly weigh the decision. In addition, Judge Rodgers found that
the prosecution did not prove “heightened premeditation.” Further, an accomplice was
sentenced to only ten years for his role in the crime.29 Later, Knight was sentenced to death
for a second, similar murder, and that conviction and sentence were upheld on appeal.30
19. Lewis, James Darnell
May 2008
Titusville
Jury recommendation: 7-5
Trial Judge: Lisa Davidson
Defense Attorney: J. Randall Moore
Case Synopsis: Convicted of beating to death a fellow homeless man, Donald Kirby. Lewis
was already serving two life sentences for a 1999 murder (the killing of a 77-year old during
a crack cocaine binge) when he came forward in 2006 and pleaded guilty to the robbery and
murder of Kirby. Judge Davidson cited remorse, taking full responsibility, lack of violent
Bill Henry, Judge Rejects Jury’s Choice, Gives Life Term, TAMPA TRIBUNE, Oct. 13, 1995.
Leighty’s defense attorneys were Mitchell Beers and Ned Reagan.
28 Susan Spencer-Wendel, Pair Get Life in Murders of 3 Women at Restaurant, PALM BEACH POST, June 11, 2004.
29 David Holmberg, Judge: Decision on Death Rushed, PALM BEACH POST, Dec. 9, 1995; see also Stephanie Smith,
Man Gets Life Terms Despite Jury’s Recommendation, SUN SENTINEL (Ft. Lauderdale), Dec. 9. 1995.
30 Knight v. State, 770 So.2d 663 (2000).
criminal history, and adjustment to prison as mitigating factors. “The Court finds that the
defendant has the ability to be a positive influence on his fellow inmates.”31
20. Morris, Walter
February 2001
Largo
Jury recommendation: 8-4
Trial Judge: Robert Beach
Defense Attorneys: Violet Assaid and Chris Helinger
Case Synopsis: Convicted of killing his housemate’s 33-month old child, Dustin Gee. The
child had suffered from a long history of abuse by his mother before Morris arrived on the
scene. “The beating of Dustin resulting in his death by the defendant was inexcusable but
was not planned or done with premeditation (and) came about as a result of his inability to
control his temper.”32
21. Murphy, Gregory
July 2008
Daytona Beach
Trial Judge: J. David Walsh
Jury Recommendation: 8-4
Defense Attorneys: Matthew Phillips and James Valerino
Case Synopsis: Murphy was convicted of killing Erleen Albright, who was a housekeeper for
Mr. Murphy’s employer. She was also the mother of Tony Bobbitt, who had a brief career as
a professional basketball player. Evidence presented by the defense indicated that Murphy
had a long history of mental illness.33
22. Norman, Rhonda
July 2009
West Palm Beach
Trial Judge: Sandra McSorley
Jury Recommendation: 9-3
Defense Attorneys: Gregg Lerman and Michael Hanrahan
Case Synopsis: Convicted of the murder of her former boyfriend’s mother, Jane Tackaberry,
and the attempted murder of his six-year-old son. The state alleged that Norman urged Wes
McGee (sentenced to life for his role after his jury recommended life) to commit the crime,
which was apparently triggered by Norman’s jealousy because her boyfriend was seeing
Keyonna Summers, Prisoner Gets Two More Life Sentences: Jury Urged Death for Fatal Beating, FLORIDA
TODAY, May 24, 2008.
32 William R. Levesque, 2-year-old Boy’s Killer Avoids Death Penalty, ST. PETERSBURG TIMES, Feb. 16, 2001; see
also David Sommer, Man Who Killed Tot Gets Life in Prison, TAMPA TRIBUNE, Feb. 16, 2001; E-mail from George
Couture to MLR (Aug. 20, 2002).
33 Ludmilla Lewis, Killer Should Die, Volusia Jury Says, ORLANDO SENTINEL, Mar. 27, 2008; Jay Stapleton, Judge
Overturns Death Penalty in 1997 Murder, DAYTONA BEACH NEWS-JOURNAL, July 12, 2008.
another woman.34 Attorney Gregg Lerman speculated that Judge McSorley was persuaded to
impose a life sentence because McGee, the actual killer, already had been sentenced to life,
the cooperation that Ms. Norman gave to police investigators, her significant mental health
mitigation, and the possibility that the jury was improperly moved by what had happened to
the minor child.35
23. Permenter, Timothy
October 2008
St. Petersburg
Trial Judge: R. Timothy Peters
Jury Recommendation: 7-5
Defense Attorney: Bob McClure
Case Synopsis: Convicted of killing his girlfriend, Karen Pannell, by stabbing her some 16
times. He had been convicted of 16 previous felonies, six of which were crimes of violence.
At sentencing, extensive testimony was presented from mental health experts that supported
the claim that Permenter was psychotic and that he came from a dysfunctional family.
Permenter was raised by his mother in the home of his paternal grandfather, Alex Finch, a
former Clearwater mayor who was murdered in his office in 1989.36
24. Robinson, Kevin
September 2003
Orlando
Jury recommendation: 8-4
Trial Judge: A. Thomas Mihok
Defense Attorney: Andrea Black
Case Synopsis: Convicted of the murders of Ruth MacEachon and Pashion Morrison. The
jury recommended life for MacEachon’s killing, but death for the murder of Morrison.
Judge Mihok said that Robinson’s attorneys had proven several factors to offset the death
sentence, “including his immaturity, his mental state at the time of Morrison’s death and a
diagnosed ‘borderline personality disorder’.” Robinson was also abused as a child.37 In
2004, Robinson died of natural causes while in prison.38
25. Roca-Moreno, Alfredo
May 2005
Titusville
Jury Recommendation: 7-5
Susan Spencer-Wendel, Vengeful Ex-Girlfriend Sentenced to Life in Prison for Brutal Murder of Ex-Boyfriend’s
Mother in West Palm Beach, PALM BEACH POST, July 30, 2009; Susan Spencer-Wendel, Life in Prison for Woman
Convicted of Murder; Rhonda Norman Sentenced in Killing of Former Boyfriend’s Mother, SUN-SENTINEL (Ft.
Lauderdale), July 31, 2009.
35 E-mail from Gregg Lerman to MLR, Sept. 15, 2009.
36 Jose Cardenas, Give Him Death, Jury Decides, ST. PETERSBURG TIMES, Nov. 17, 2007.
37 Anthony Colarossi, Judge Spares Man Convicted in 1999 Car-Trunk Murders, ORLANDO SENTINEL,, Sept.30,
2003.
38 Anthony Colarossi, Orlando Man Dies in Panhandle Prison; Kevin Robinson Suffered Seizures. He was
Sentenced to Life in Prison After He Killed Two Women in 1999. ORLANDO SENTINEL, Mar. 11, 2004.
Trial Judge: Warren Burk
Defense Attorney: Kenneth Studstill
Case Synopsis: Roca-Moreno was found guilty of two counts of first-degree murder and one
count of attempted first-degree murder. Roca-Moreno, Anthony Fernandez (who hanged
himself shortly after his arrest), and Ernesto Rosa went to a trailer park to rob a purported
marijuana dealer. After the robbery, the trio left the trailer, but were chased by the victim.
He was shot, and the second victim was hit by a stray bullet. The victims were Kenneth
Hines and Richard Wise, Jr. While this satisfied the criteria for felony murder, defense
attorney Studstill argued that there was no evidence of heightened premeditation or intent.39
In 2006 Rosa was sentenced to 18 years in prison for his role in the crime.40
26. Rogers, Alvin
February 1997
Largo
Jury recommendation: 7-5
Trial Judge: Brandt Downey
Defense Attorney: David Parry
Case Synopsis: Convicted of murdering 17-year-old Kimberly Leshore during a robbery of
Church’s Fried Chicken in St. Petersburg. Rogers had been hospitalized 39 times for mental
illness, his mother hooked him on cocaine when he was 11, and Judge Downey was
concerned that his instructions to the jury had not been followed. He believed a death
sentence would have been overturned by the Florida Supreme Court.41
27. Saintil, Wilson
August 2008
Largo
Trial Judge: Nancy Moate Ley
Jury Recommendation: 9-3
Defense Attorney: Dudley Clapp and Michael Hays
Case Synopsis: Convicted of the murder of an assistant manager of a St. Petersburg
steakhouse, Stephen Holmes. Approximately $5,000 was also taken from the restaurant’s
safe. Saintil was a cook and cleaner in the restaurant. Holmes’s father wrote a letter to Judge
Ley stating that they opposed the death penalty, although Judge Ley stated that the law, and
not the letter, guided her decision. Saintil had been abandoned as a child in Haiti, had an IQ
of 63. Nonetheless, he had performed well as a father.42
Phone interview with Kenneth Studstill (Jul. 10, 2009); Zenaida A. Gonzalez, Jury Finds Man Guilty in Fatal
Shootings, FLORIDA TODAY, Apr. 3, 2005; Jury Recommends Death for Roca-Moreno, FLORIDA TODAY, Apr. 6,
2005.
40 John A. Torres, Murder Suspect OKs Plea Deal, Gets 18 Years, FLORIDA TODAY, Oct. 13, 2006,
41 Craig Pittman, Man Convicted in Teen’s Slaying Apologizes, Gets Life Sentence, ST. PETERSBURG TIMES, Feb. 27,
1997; David Sommer, Judge Sticks to His Plan, Spares Rogers from Death, TAMPA TRIBUNE, Feb. 27, 1997.
42 Prep Cook Goes on Trial in Durango Murder, ST. PETERSBURG TIMES, Apr. 16, 2008; Chris Tisch, Judge Rejects
Death Sentence, ST. PETERSBURG TIMES, Aug. 25, 2008.
28-29. Saum, Dustin [judge overrode two death recommendations]
September 1996
Bartow
Jury recommendation: 9-3 (Ward) and 10-2 (Kelly)
Trial Judge: Robert Young
Defense Attorneys: Austin Maslanik and Rex Dimmig
Case Synopsis: Convicted of killing his father, Larry, and two neighbors, Michael Kelly
and Carol Waid. The jury had rejected an insanity defense, but the judge did not.
Prosecutors did not seek death for the father’s murder. The judge found that the murders
were the product of “extreme emotional disturbance.”43
30. Silas, Willie
November 1993
Miami
Jury recommendation: 7-5
Trial Judge: Thomas Carney
Defense Attorney: Clinton Pitts
Case Synopsis: Convicted of killing a Canadian tourist, Gemma Lapointe, during an
attempted robbery. Judge Carney did not explain his decision, but the defense argued that
the jury was improperly influenced by intense media coverage of violence against tourists.44
31. Smith, Lawrence Joey
April 2008
Dade City
Jury recommendation: 7-5
Trial Judge: Lynn Tepper
Defense Attorney: Keith Hammond
Case Synopsis: Convicted as the triggerman in the 1999 revenge shootings of teenage pals
Robert Crawford and Stephen Tuttle (who survived), on orders from drug dealer Faunce
Pearce (who was sentenced to death). Two accomplices were not charged in exchange for
cooperating with prosecutors. Smith was originally sentenced to death for the murders in
2001, but that sentence was vacated by the Florida Supreme Court.45 Judge Tepper
questioned the honesty of the accomplices and decried the disparate treatment (she stated that
the prosecution never proved who the shooter was), and cited Smith’s positive effect on other
inmates.46
Susan Barbosa, Saum Receives Life in Prison: Judge Rejects Death Penalty, LAKELAND LEDGER, Sept. 21, 1996.
Murderer Gets Life Instead of Death, TALLAHASSEE DEMOCRAT, Nov. 22, 1993.
45 Smith v. State, 866 So.2d 51 (2004).
46 Geoff Fox, Smith To Serve Life in Slaying of Teen, TAMPA TRIBUNE, Apr. 23, 2008; Molly Moorhead, Life of
Clever Killer Spared, ST. PETERSBURG TIMES, Apr. 23, 2008; Tom Jackson, In Capital Cases, There Can Be No
Doubts, TAMPA TRIBUNE, Apr. 24, 2008.
Bartow
Jury recommendation: 9-3
Trial Judge: Dennis Maloney
Defense Attorney: Larry Hardaway
Case Synopsis: Convicted of the 1994 stabbing death of Robert Lucas. In 1995, Judge
Maloney sentenced Steverson to death for the same crime, but that conviction was
overturned by the Florida Supreme Court in 1997.47 Judge Maloney stated that the grounds
for sentencing a person to death had narrowed between 1995 and 1999, and that a death
sentence in this case would not survive proportionality review.48
33. Terranova, Joseph Angelo
November 1996
Tampa
Jury recommendation: 10-2
Trial Judge: J. Rogers Padgett
Defense Attorneys: Dwight Wells (who withdrew before the second jury was impaneled, but
who is responsible for the defendant’s ultimate discharge), and John Skye
Case Synopsis: Convicted of killing his former girlfriend, Brenda Lee Turner, and
her boyfriend, Michael Emerine, as they slept together in a trailer park. The first jury
recommended death, 10-2, but the judge set aside that recommendation and set the case for
a new sentencing hearing because even though the defendant had been found guilty of two
counts of first degree murder, only a single jury recommendation verdict had been submitted
to the jury. A second jury was convened but discharged before any evidence was heard
when a prospective juror reported to the judge that one of the seated jurors had stated during
jury selection that she wanted to be on the jury because she thought the defendant should
be “fried.” Over the state’s objection, Judge Padgett then made his decision to sentence the
defendant to two consecutive life terms without a new jury recommendation. On appeal in
1999, the 2nd District Court of Appeal (in a decision written by future Florida Supreme Court
Justice Peggy Quince) vacated both of the convictions because the state’s circumstantial
evidence failed to prove a prima facie case of either first-degree murder, and the defendant
was discharged.49
34. Tucker, Jason
August 2006
Viera
Jury Recommendation: 8-4
Trial Judge: Lisa Davidson
Defense Attorneys: Keith Szachacz and Kepler Funk
Case Synopsis: Tucker was convicted of the rape-murder of Joan Dunbar. Judge Davidson
Steverson v. State, 695 So.2d 687 (1997).
Bill Henry, Judge Reconsiders, Issues Life Sentence, TAMPA TRIBUNE, Sept. 4, 1999; Jenna Deopere, Judge
Spares Convicted Killer’s Life, LAKELAND LEDGER, Sept. 4, 1999;
49 Terranova v. State, 764 So.2d 612 (1999); Letter from John J. Skye to MLR, June 25, 2008; Barbara Boyer, Man
Gets Life in 2 Murders, TAMPA TRIBUNE, Nov. 13, 1996.
noted that Tucker was just a few days past his 18th birthday at the time of the offense, and he
suffered from mental health problems. Tucker had prohibited his attorneys from putting on
any mitigation during the penalty phase.50
35. Walker, James
August 1998
Miami
Jury recommendation: 7-5 in 1994 trial
Trial Judge: Michael Salmon
Defense Attorney: Brian McDonald (1994 trial).
Steve Harper, Ray Taseff, and Chris Spaulding (1998).
Case Synopsis: Convicted of killing his former girlfriend and their 17-month old son, binding
them with duct tape, and throwing them into a canal. Walker was originally sentenced to
death in 1994, at which time the trial court acknowledged significant child abuse, but gave it
no weight. On appeal, the Florida Supreme Court ordered a resentencing (with no new jury
empanelled or new jury recommendation).51 The trial court was ordered to “reweigh”
mitigation and give “careful and proper reconsideration” of the sentences,
according “appropriate consideration and weight” to the significant mitigating factor” of
Walker’s abusive upbringing.52
36. Williams, Walter E.
August 1994
Clearwater
Jury recommendation: 8-4
Trial Judge: Karl Grube
Defense Attorneys: Michael Schwartzberg and Richard Watts
Case Synopsis: Williams was convicted of the 1988 murder of his three-year old son.
Williams had a prior conviction of aggravated child abuse for abusing his daughter in 1990,
and was convicted of a 1989 attempted murder. Judge Grube cited the lack of premeditation,
that Williams suffered from a slight emotional disturbance that prevented him from
controlling his anger, and his cooperation with police (he would not have been prosecuted
had he not confessed).53
Table 1
Factors Used to Justify Death-to-Life Overrides (n=36)
Retardation or Mental Illness
Case Numbers
1, 3, 10, 12, 13, 15, 21, 22, 23, 24, 26, 27, 28-29,
34, 36
Kaustuv Basu, Convicted Killer Heads to Prison, FLORIDA TODAY, Aug. 17, 2006.
Walker v. State, 707 So.2d 300 (1997).
52 Id., at 319.
53 William Yelverton, Judge Rejects Death Sentence, TAMPA TRIBUNE, Aug. 27, 1994.
Questions about Premeditation or
Intent
6-7, 11, 13, 18, 20, 25, 33, 36
Questions about Who Was Triggerman
Mitigation outweighed aggravation
5, 8, 13, 17, 18, 22, 31, 32
11, 13, 14, 23, 24, 26, 27, 35
18, 22, 26, 30, 22
6-7, 17, 31
2, 4, 9, 12
2, 3, 33
3, 4, 27
Defendant’s Remorse, Responsibility, or
Cooperation
Lack of Prior Criminal Record
19, 22, 36
6, 16, 34
5, 16
1, 10
14
Table 2
Death-to-life Overrides, 1972-2011
Date
Nov. 1974
July 1975
Mar. 1976
May 1977
Apr. 1978
Mar. 1980
May 1980
Sept. 1980
Sept 1980
Mar. 1982
Oct. 1982
May 1984
Oct. 1984
Apr. 1985
July 1985
Oct. 1985
Oct. 1985
Oct 1985
Aug. 1986
Dec. 1986
Jan. 1987
Mar. 1987
June 1987
May 1987
July 1987
Aug. 1987
Aug. 1987
Trial Location
Orlando
Miami
Pasco County
Miami
Starke
Orlando
Sebring
Pensacola
Fernandina Beach
West Palm Beach
West Palm Beach
St. Petersburg
Tampa
Panama City
Tampa
Tampa
New Port Richey
Miami
Fort Myers
Fort Myers
Orlando
West Palm Beach
Miami
Miami
Sanford
Marianna
Tampa
Trial Judge
Peter de Manio
Dan Satin
Lawrence E. Keough
Wilkie D. Ferguson
Wayne Carlisle
Frank N. Kaney
John H. Dewell
William Frye III
Henry Lee Adams, Jr.
Marvin Mounts
Edward Rodgers
Susan Schaeffer
John P. Griffin
N. Russell Bower
M. William Graybill
Donald Evans
Lawrence E. Keough
Thomas M. Carney
Thomas Reese
Thomas Reese
Gary Formet
William Owen
Steven Robinson
Norman Gerstein
O. H. Eaton, Jr.
Robert L. McCrary
John P. Griffin
Sept. 1987
Nov. 1987
Mar. 1988
May 1988
Mar. 1988
Sept. 1988
Sept. 1988
Oct. 1988
Feb. 1989
Feb. 1989
Feb. 1989
July 1989
Nov. 1989
Jan. 1990
July 1990
Nov. 1990
Dec. 1991
Miami
New Port Richey
Melbourne
Live Oak
Inverness
Miami
Tampa
Fort Myers
Bartow
West Palm Beach
Melbourne
Bartow54
Daytona Beach
Bartow
West Palm Beach
Fort Myers
Ft. Lauderdale
Ralph N. Person
Lawrence E. Keough
John Antoon
John Peach
Thomas Sawaya
Ralph Person
Richard A. Lazzara
Thomas S. Reese
J. Tim Strickland
Harold Cohen
John Antoon
John Antoon
S. James Foxman
E. Randolph Bentley
Walter Colbath
William Nelson
Charles Green
On venue change from Brevard County.
Nov. 1993
Mar. 1994
Aug. 1994
Oct. 1995
Dec. 1995
Sept. 1996
Nov. 1996
Feb. 1997
June 1997
Mar. 1998
Aug. 1998
Nov. 1998
Sept. 1999
Feb. 2001
May 2002
Mar. 2003
June 2003
Sept. 2003
June 2004
July 2004
Dec. 2004
May 2005
May 2006
Aug. 2006
Sept. 2006
May 2008
Apr. 2008
July 2008
Aug. 2008
Oct. 2008
July 2009
Sept. 2009
Dec. 2009
Miami
Lee County
Clearwater
Bartow
W. Palm Beach
Bartow
Tampa
Clearwater
Jacksonville
Ft. Myers
Miami
Largo
Lakeland
Pinellas
Tampa
Tampa
Largo
Orlando
West Palm Beach
Shalimar
Polk County
Titusville
Key West
Viera
St. Augustine
Titusville
Dade City
Daytona Beach
Pinellas County
Pinellas County
West Palm Beach
Ft. Myers
Titusville
Thomas Carney
William Nelson
Karl Grube
J. Tim Strickland
Edward Rodgers
Robert Young
J. Rogers Padgett
Brandt Downey
Henry Davis
Isaac Anderson
Michael Salmon
David Seth Walker
Dennis Maloney
Robert Beach
J. Rogers Padgett
J. Rogers Padgett
Dee Anna Farnell
A. Thomas Mihok
Stephen Rapp
Thomas Remington
Dennis Maloney
Warren Burk
Trish Docherty
Lisa Davidson
Edward Hedstrom
Lisa Davidson
Lynn Tepper
J. David Walsh
Nancy Moate Ley
R. Timothy Peters
Sandra McSorley
Edward Volz, Jr.
O.H. Eaton
* See Radelet & Mello, supra note ??, at 216-28.
# See Appendix II, infra.
Judge overrode two death recommendations.
Table 3
Judges Who Have Overridden Death Recommendations
In More Than One Trial
William Cruse*
James Mays*
George Porter*
Thomas Carney
Willie Silas, infra
David Cook*
Lisa Davidson
James Lewis, infra.
Jason Tucker, infra.
O.H. Eaton
Justin Heyne, infra.
Victor White*
John Griffin
Ronald Hale
George Taylor
Lawrence E. Keough David Armour
Joseph Garron
Dennis Maloney
Brandan Gatlin, infra.
Bobby Steverson, infra.
William Nelson
Adam Chilmonik and David Hubbard, infra.
Eddie Ferguson*
J. Rogers Padgett
Troy Green, infra.
Alfred Harris, infra.
Joseph Terranova, infra.
Ralph Person
James Bryant, Dee Casteel, Michael Irvine, and William Rhodes*
Julita de Parias*
Edward Rodgers
James Ballard
Ronald Knight
Thomas Reese
Christopher Ferguson*
Juan Rivera*
J. Timothy Strickland Lewis Jamison, infra.
Michael Rippley*
*For case information, see Radelet & Mello, supra note ??, at 216-28.
David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33917
239-332-1100
http://www.justiceisourpassion.com
http://www.murderlawyerflorida.com
Death-to-Life Overrides in Florida
1992-Present1
Jan. 27, 2011 (n=36, plus 51 from 1992 = 87)
Michael L. Radelet
University of Colorado2
1. Armour, Donald Hugh
March 1976
New Port Richey
Trial Judge: Lawrence E. Keough
Jury Recommendation: Unknown
Defense Attorney: Robert Focht
Case Synopsis: Convicted of killing one of his two wives, Jacqueline, shortly after she
learned that Armour was also married to the other woman.3 Armour immediately turned
himself into the police and confessed. Judge Keough overrode the jury’s recommendation of
death, “apparently considering Armour’s lack of a previous criminal record and his physical
and mental state at the time of the crime.”4 Armour died in prison on Dec. 1, 2007.
2. Barber, Justin
September 2006
St. Augustine
Jury recommendation: 8-4
Trial Judge: Edward Hedstrom
Defense Attorney: Robert Willis
Case Synopsis: Convicted (after four days of deliberation) of killing his wife, April Barber,
during a stroll on the beach. Barber refused to allow his family to testify during the penalty
phase and refused to ask for leniency, steadfastly maintaining his innocence. Consequently,
the penalty phase consisted of a three-minute statement from the defense attorney, during
which the attorney advised the jury that Mr. Barber did not want to present mitigation for an
act for which he was not responsible. The judge explained his decision on the basis of the
fact that the jury did not hear any mitigation, and thus their opinion did not hold great weight.
This report updates Michael L. Radelet & Michael Mello, Death to Life Overrides: Saving the Resources of the
Florida Supreme Court, 20 FLORIDA STATE UNIVERSITY LAW REVIEW 195 (1992). My friend and co-author, Mike
Mello, passed away on November 23, 2008. Our 1992 FSU paper documented 51 death-to-life overrides through
the end of 1991 that had been given to 47 defendants. I know of only one death-to-life override prior to Dec. 31,
1991 that was not included in that paper (case of David Armour, infra).
2 Please send any edits, corrections, updates, etc. to
this paper on my web site,
3 Cary Davis, Man Who Killed His Wife Might Be Set Free, ST. PETERSBURG TIMES, Feb. 16, 2003.
4 David M. Snyder, Despite Jury’s Recommendation, Armour Gets Life Term for Murder, ST.
PETERSBURG TIMES, March 19, 1976, available at http://news.google.com/newspapers?
nid=888&dat=19760319&id=3SEMAAAAIBAJ&sjid=UF0DAAAAIBAJ&pg=5505,2654187.
It is likely that lingering doubts about the defendant’s guilt also played a role.5
3. Barnes, Corrie D.
July 2004
Shalimar
Jury recommendation: 7-5
Trial Judge: Thomas Remington
Defense Attorneys: Jerry T. Allred and Martin Lester
Case Synopsis: Sentenced to two life terms for shooting and killing Edward Carthon, and
then firing shots at an Okaloosa County Sheriff’s Deputy (the latter resulted in a conviction
for attempted first-degree murder). Mr. Carthon’s widow had argued in favor of a life
sentence, stating after the verdict “It’s a big relief … I accept what they gave him and I’m
proud they did justice.” According to newspaper reports, the defense attorneys “presented
testimony indicating Barnes had suffered several head injuries as a child and that lingering
effects from those injuries could have affected his behavioral patterns.” They also argued
that there were lingering doubts about guilt.6
4. Bennett, Christopher Lamont
May 2006
Key West
Jury recommendation: 10-2
Trial Judge: Leonard Glick (visiting judge)
Defense Attorney: Trish Docherty
Case Synopsis: Convicted of killing his 5-year old son, Zachary. Some 40 family members
attended the sentencing hearing to support Christopher’s plea to be spared the death penalty.
Said the trial judge, “In weighing the aggravating circumstances against the mitigating
circumstances, the scales of life and death tilt to the side of life in state prison without the
possibility of parole.”7 The mother and grandmother of the victim settled a civil suit against
the Department of Children and Families for $160,000 for placing the boy in the custody of
his father, despite his long criminal record.8
5. Carpenter, David Charles
June 2003
Largo
Jury recommendation: 7-5
Trial Judge: Dee Anna Farnell
Defense Attorneys: D. Robert Lewis and Robert Ford
Barber v. State, 4 So.3d 9 (2009); Christina Abel, Barber Vows to Pursue Vindication: Judge Gave Man Life in
Prison Because Defense Offered No Testimony at His Sentencing, FLORIDA TIMES-UNION, Sept. 20, 2006; Letter
from Robert Stuart Willis to MLR (June 24, 2008).
6 Jeff Ayres, Judge Rejects Jury’s Recommendation, Declining to Elaborate on His Decision, NORTHWEST FLORIDA
DAILY NEWS (Ft. Walton Beach), Jul. 31, 2004.
7 Christine Braden, Bennett Spared Death Sentence: Judge Hands Down a Life Prison Term, FLORIDA KEYS
KEYNOTER (Marathon), May 24, 2006.
8 Man Found Guilty of Stomping his 5-Year-Old Son to Death, GAINESVILLE SUN, Feb. 14, 2006.
Case Synopsis: This was the third time that Mr. Carpenter had been sentenced for the murder
of Ann Powell, age 63. In 1996, Carpenter was sentenced to death following a 7-5 jury
recommendation, but this recommendation was thrown out by the trial judge because the jury
was told that he may be eligible for parole if sentenced to life. He resentenced to death in
1997 after a new jury voted 10-2 for death. That conviction was thrown out by the Florida
Supreme Court in 2001.9 In 2003, Judge Farnell rejected the jury’s recommendation of death
because she “didn’t think prosecutors proved Carpenter was more responsible for the 1994
killing than a friend who also participated.”10 Carpenter may have also had a lesser role in
the murder than the accomplice (a juvenile who pled to second degree murder).
6-7. Chilmonik, Adam and David Hubbard
March 1994
Ft. Myers
Jury recommendation: 8-4 for Chilmonik; 9-3 for Hubbard
Trial Judge: William Nelson
Defense Attorneys: Dennis J. Rehak, for Chilmonik; Barbara LeGrande for Hubbard
Case Synopsis: Convicted of the murder of a clerk at a 7-11, Steven Reid, during a
robbery. The judge felt that premeditation was never proven and that it was impossible to
tell who pulled the trigger. In addition, the judge found that because of excessive alcohol
consumption, Chilmonik’s capacity to conform his conduct to the requirements of the law
was impaired. Chilmonik was aged 18 at the time of the offense.11
8. Davis, Darrell
June 1997
Jacksonville
Jury recommendation: 7-5
Trial Judge: Henry Davis
Defense Attorney: Jerry Shea
Case Synopsis: Davis and a friend, Robert Thomas, were convicted of kidnapping two
victims (one male and one female), robbing and raping the woman and killing the man,
Imara Skinner.12 In sentencing Davis to life, the trial judge said that “Evidence did not show
Darrell Davis knew Thomas would kill Skinner.”13 Thomas was originally sentenced to
death for the murder, but this sentence was vacated,14 and in 2000 he was resentenced to 45
years.15
Carpenter v. State, 785 So.2d 1182 (2001).
William R. Levesque, Judge Reduces Death Sentence to Life in Prison, ST. PETERSBURG TIMES, June 24, 2003;
David Sommer, Killer’s 3rd Sentence Yields Life Term, TAMPA TRIBUNE, June 24, 2003.
11 Bob Norman, Judge Spares Lives of 2 Men, NEWS-PRESS (Ft. Myers), Mar. 17, 1994.
12 Vivian Wakefield, Retrial Plea Closes ’96 Murder Case, FLORIDA TIMES-UNION, Nov. 3, 2000.
13 Beau Halton, Judge Overrules Death Sentence, FLORIDA TIMES-UNION, June 27, 1997.
14 Thomas v. State, 748 So.2d 970 (1999).
15 Vivian Wakefield, Retrial Closes ’96 Murder Case, FLORIDA TIMES UNION, Nov. 3, 2000.
March 1998
Ft. Myers
Jury Recommendation: 7-5
Trial Judge: Isaac Anderson
Defense Attorney: Kenneth Garber
Case Synopsis: Durain was visiting Ft. Myers and staying with a friend and the friend’s
roommate, Glenn Harkins. Durain’s car had been stolen and he had lost his job. After a
day of drinking, Durain and Harkins got into a fight (allegedly after Harkins teased Durain
by calling him a “mama’s boy”). Later that day, Harkins was beaten with a bat and a plastic
bag was placed over his head. Prosecutors claimed that he had been attacked in his bed as
he slept.16 According to newspaper reports, Judge Anderson “ruled that the one aggravating
factor that went toward the death penalty – that the slaying was especially heinous,
atrocious or cruel – was outweighed by several mitigating factors for a life sentence.”17
10. Galloway, David
November 1998
Largo
Jury recommendation: 7-5
Trial Judge: David Seth Walker
Defense Attorney: Anne Borghetti
Case Synopsis: Convicted of killing a two-week child who he erroneously believed was his
son. Judge Walker cited Galloway’s lack of a prior record and evidence of severe mental
retardation.18
11. Gatlin, Brandan
December 2004
Bartow
Jury Recommendation: 12-0
Trial Judge: Dennis Maloney
Defense Attorneys: Robert Norgard and Deborah Wells
Case Synopsis: Convicted of the murder of a Lakeland convenience store owner, (Ms.)
Varsha Patel. Judge Maloney found that there was intent to rob, but not kill, and his order
focused heavily on Gatlin’s chaotic childhood. Gatlin had a prior conviction for robbing a
pizza deliveryman. In 2001, while in jail awaiting trial for the murder, Gatlin and another
inmate severely beat another jail inmate, leaving the victim for six months in a coma. Both
men received 30-year sentences for that crime.19
Peter Franceschina, Killer Out to Sue Sheriff, NEWS-PRESS (Ft. Myers, Fla.), June 4, 2000.
Florida Digest, Lee County, Life Sentence, NEWS-PRESS (Ft. Myers, Fla.), Mar. 26, 1998.
18 William R. Levesque, Man Gets Life Term for Death of Baby, ST. PETERSBURG TIMES, Nov. 14, 1998.
19 Jason Geary, Convict Escapes Death: Judge Rejects Jury’s Choice and Sends Murderer to Prison for Life,
LAKELAND LEDGER, Dec. 18, 2004.
Tampa
Jury Recommendation: 8-4
Trial Judge: J. Rogers Padgett
Defense Attorney: Deborah Goins
Case Synopsis: Convicted of killing a female acquaintance, DeCarla Dixon, who had
cerebral palsy and could not walk. The victim was stabbed 39 times, left in her home, and
her very young children came home and found her on the floor. Her dying declaration
named “Troy”. Testimony at the penalty phase revealed that Green had a low IQ and
neuropsychological deficits. Judge Padgett determined that the murder was not “especially
heinous, atrocious or cruel,” and that the mitigation was sufficient to overcome aggravating
circumstances.20
13. Grodin, Justin
September 2009
Ft. Myers
Trial Judge: Edward Volz, Jr.
Jury Recommendation: 10-2
Defense Attorneys: Ray LeGrande and John Mills
Case Synopsis: Convicted of killing his 11-month old stepdaughter. After the death,
Grodin and his wife, Mary (who was convicted of child abuse for her role in the case, and
sentenced to 13 years in prison21), buried the baby and fled to Seattle, where they were
arrested. Justin Grodin was repeatedly found incompetent to stand trial. In sentencing him
to life imprisonment, Judge Volz cited Grodin’s lifelong history of mental illness (including
two stays in a mental hospital), his tumultuous childhood, and the lack of evidence that he
intended to kill the baby. He also noted the culpability and disparate treatment of Mary
Grodin. “Although three aggravating circumstances were established, they simply do not
rise to the level whereby this case could be characterized as one of the most aggravated. …
The court concludes that this homicide, though despicable, does not place it in the category
of the most aggravated and least mitigated for which the death penalty is appropriate.”22
After the sentence was announced, State Attorney Anthony Kunasek said that he was not
disappointed, since jurors often cast death penalty votes based on emotion, not the law.23
14. Harris, Alfred B.
May 2002
Tampa
Jury recommendation: 10-2
Trial Judge: J. Rogers Padgett
Defense Attorney: Robert Fraser
Joshua B. Good, Judge Rejects Opinions of Jurors, Orders Life Sentence, Not Death, TAMPA TRIBUNE, Mar. 18,
2003; Rejecting Jury, Judge Gives Life, ST. PETERSBURG TIMES, Mar. 19, 2003; E-mail from Deborah Goins to
MLR (June 5, 2008).
21 Pat Gillespie, Mary Grodin Sentenced to 13 Years, NEWS-PRESS (Ft. Myers, Fla.), Sept. 22, 2009.
22 Sentencing Order, State v. Grodin, Case No. 00CF3779 (Sept. 18, 2009), at 12-13.
23 Pat Gillespie, Nine Years Later, Child Killer Justin Grodin Gets Life, NEWS-PRESS (Ft. Myers, Fla.), Sept. 19,
2009.
Case Synopsis: Convicted of burglarizing the home of 71-year old Raymond Brooks, beating
him with an iron skillet, killing him with a butcher knife, and then raping Mrs. Brooks. In
sentencing Harris to life in prison, Judge J. Rogers Padgett noted Brooks died suddenly, and
may not have been fully aware of what was happening to him. The defense argued that the
blow from the skillet stunned Brooks, or even knocked him out, before the knife attack. As
recounted by a newspaper report, Judge Padgett wrote in his order that “This killing is not
one of the most wicked of the wicked for which the death penalty is reserved …” Padgett
concluded that “the jury’s call for death was skewed by emotionally wrenching testimony
about the rape of Brooks’ wife. But Brooks was already dead when that happened.” The
newspaper report continued, “The undisputed depravity of the killer’s youth also tilted the
judge toward mercy. According to testimony, Harris was raised by a neglectful mother who
encouraged his criminality. When Harris was about 11, for instance, he helped his mother
rob men she lured into the woods with the promise of sex. Padgett called the neglect and
abuse Harris suffered ‘as bad as, if not worse than, any this court has ever heard,’ adding that
he was “destined to end up where he is now.”24
15. Heyne, Justin
December 2009
Viera
Jury recommendation: 8-4
Trial Judge: O.H. Eaton
Defense Attorney: Randy Moore
Case Synopsis: Heyne was convicted of killing Sarah Buckoski, her boyfriend, Benjamin
Hamilton, and their 5-year-old daughter, Ivory. Hamilton and Heyne had been best friends
and heavily involved in drug dealing; Heyne had been living with the family when the
murders occurred. The jury voted 8-4 to recommend a death sentence for Buckoski’s death,
but Judge Eaton rejected this vote and sentenced Heyne to life imprisonment on this count.
Following jury recommendations, Heyne was sentenced to life for the murder of Benjamin
Hamilton, and to death for the murder of the child. In his sentencing memorandum, Judge
Eaton found that Heyne had a significant history of mental illness that outweighed any
aggravation in the case.25
16. Jamison, Lewis
October 1995
Bartow
Jury recommendation: 8-4
Trial Judge: J. Tim Strickland
Defense Attorney: Robin Matis-Jackson
Case Synopsis: Jamison, aged 64, was convicted of shooting Matthew Roosevelt Biggs, aged
65, during an argument. Jamison had a 1970 conviction for manslaughter in South Carolina
and a sexual battery with slight force in 1981. Jamison was intoxicated at the time of the
Christopher Goffard, Judge Rejects Death for Killer, ST. PETERSBURG TIMES, May 7, 2002.
Sentencing Order, State v. Justin Heyne, Case No. 2006-CF-19237-A (Brevard County) (Dec. 17, 2009); Keyonna
Summers, Killer Justin Heyne Gets Death Penalty, FLORIDA TODAY (Titusville), Dec. 17, 2009.
crime, and the judge cited both his age and his alcoholism in his decision.26
17. Johnson, Lloyd
June 2004
West Palm Beach
Jury recommendation: 7-5
Trial Judge: Stephen Rapp
Defense Attorneys: Phillip Massa (penalty phase) and Robert Gershman
Case Synopsis: Convicted, with Randall Leighty, of killing three women, execution style,
during the robbery of a Greenacres restaurant. The men were tried together with separate
juries. Johnson’s jury recommended death; Leighty’s recommended life (10-2).27
Consequently, Johnson’s attorneys advanced a proportionality claim, arguing that equally
culpable defendants should receive similar sentences. There was no consensus on who did
the shooting or on who possessed the gun.28
18. Knight, Ronald
December 1995
W. Palm Beach
Jury recommendation: 12-0
Trial Judge: Edward Rodgers
Defense Attorney: Gregg Lerman
Case Synopsis: Convicted of killing Brendan Meehan, who was chosen as a victim because
he was gay. The jury spent only 19 minutes deliberating on penalty, and Judge Rodgers said
that was insufficient to properly weigh the decision. In addition, Judge Rodgers found that
the prosecution did not prove “heightened premeditation.” Further, an accomplice was
sentenced to only ten years for his role in the crime.29 Later, Knight was sentenced to death
for a second, similar murder, and that conviction and sentence were upheld on appeal.30
19. Lewis, James Darnell
May 2008
Titusville
Jury recommendation: 7-5
Trial Judge: Lisa Davidson
Defense Attorney: J. Randall Moore
Case Synopsis: Convicted of beating to death a fellow homeless man, Donald Kirby. Lewis
was already serving two life sentences for a 1999 murder (the killing of a 77-year old during
a crack cocaine binge) when he came forward in 2006 and pleaded guilty to the robbery and
murder of Kirby. Judge Davidson cited remorse, taking full responsibility, lack of violent
Bill Henry, Judge Rejects Jury’s Choice, Gives Life Term, TAMPA TRIBUNE, Oct. 13, 1995.
Leighty’s defense attorneys were Mitchell Beers and Ned Reagan.
28 Susan Spencer-Wendel, Pair Get Life in Murders of 3 Women at Restaurant, PALM BEACH POST, June 11, 2004.
29 David Holmberg, Judge: Decision on Death Rushed, PALM BEACH POST, Dec. 9, 1995; see also Stephanie Smith,
Man Gets Life Terms Despite Jury’s Recommendation, SUN SENTINEL (Ft. Lauderdale), Dec. 9. 1995.
30 Knight v. State, 770 So.2d 663 (2000).
criminal history, and adjustment to prison as mitigating factors. “The Court finds that the
defendant has the ability to be a positive influence on his fellow inmates.”31
20. Morris, Walter
February 2001
Largo
Jury recommendation: 8-4
Trial Judge: Robert Beach
Defense Attorneys: Violet Assaid and Chris Helinger
Case Synopsis: Convicted of killing his housemate’s 33-month old child, Dustin Gee. The
child had suffered from a long history of abuse by his mother before Morris arrived on the
scene. “The beating of Dustin resulting in his death by the defendant was inexcusable but
was not planned or done with premeditation (and) came about as a result of his inability to
control his temper.”32
21. Murphy, Gregory
July 2008
Daytona Beach
Trial Judge: J. David Walsh
Jury Recommendation: 8-4
Defense Attorneys: Matthew Phillips and James Valerino
Case Synopsis: Murphy was convicted of killing Erleen Albright, who was a housekeeper for
Mr. Murphy’s employer. She was also the mother of Tony Bobbitt, who had a brief career as
a professional basketball player. Evidence presented by the defense indicated that Murphy
had a long history of mental illness.33
22. Norman, Rhonda
July 2009
West Palm Beach
Trial Judge: Sandra McSorley
Jury Recommendation: 9-3
Defense Attorneys: Gregg Lerman and Michael Hanrahan
Case Synopsis: Convicted of the murder of her former boyfriend’s mother, Jane Tackaberry,
and the attempted murder of his six-year-old son. The state alleged that Norman urged Wes
McGee (sentenced to life for his role after his jury recommended life) to commit the crime,
which was apparently triggered by Norman’s jealousy because her boyfriend was seeing
Keyonna Summers, Prisoner Gets Two More Life Sentences: Jury Urged Death for Fatal Beating, FLORIDA
TODAY, May 24, 2008.
32 William R. Levesque, 2-year-old Boy’s Killer Avoids Death Penalty, ST. PETERSBURG TIMES, Feb. 16, 2001; see
also David Sommer, Man Who Killed Tot Gets Life in Prison, TAMPA TRIBUNE, Feb. 16, 2001; E-mail from George
Couture to MLR (Aug. 20, 2002).
33 Ludmilla Lewis, Killer Should Die, Volusia Jury Says, ORLANDO SENTINEL, Mar. 27, 2008; Jay Stapleton, Judge
Overturns Death Penalty in 1997 Murder, DAYTONA BEACH NEWS-JOURNAL, July 12, 2008.
another woman.34 Attorney Gregg Lerman speculated that Judge McSorley was persuaded to
impose a life sentence because McGee, the actual killer, already had been sentenced to life,
the cooperation that Ms. Norman gave to police investigators, her significant mental health
mitigation, and the possibility that the jury was improperly moved by what had happened to
the minor child.35
23. Permenter, Timothy
October 2008
St. Petersburg
Trial Judge: R. Timothy Peters
Jury Recommendation: 7-5
Defense Attorney: Bob McClure
Case Synopsis: Convicted of killing his girlfriend, Karen Pannell, by stabbing her some 16
times. He had been convicted of 16 previous felonies, six of which were crimes of violence.
At sentencing, extensive testimony was presented from mental health experts that supported
the claim that Permenter was psychotic and that he came from a dysfunctional family.
Permenter was raised by his mother in the home of his paternal grandfather, Alex Finch, a
former Clearwater mayor who was murdered in his office in 1989.36
24. Robinson, Kevin
September 2003
Orlando
Jury recommendation: 8-4
Trial Judge: A. Thomas Mihok
Defense Attorney: Andrea Black
Case Synopsis: Convicted of the murders of Ruth MacEachon and Pashion Morrison. The
jury recommended life for MacEachon’s killing, but death for the murder of Morrison.
Judge Mihok said that Robinson’s attorneys had proven several factors to offset the death
sentence, “including his immaturity, his mental state at the time of Morrison’s death and a
diagnosed ‘borderline personality disorder’.” Robinson was also abused as a child.37 In
2004, Robinson died of natural causes while in prison.38
25. Roca-Moreno, Alfredo
May 2005
Titusville
Jury Recommendation: 7-5
Susan Spencer-Wendel, Vengeful Ex-Girlfriend Sentenced to Life in Prison for Brutal Murder of Ex-Boyfriend’s
Mother in West Palm Beach, PALM BEACH POST, July 30, 2009; Susan Spencer-Wendel, Life in Prison for Woman
Convicted of Murder; Rhonda Norman Sentenced in Killing of Former Boyfriend’s Mother, SUN-SENTINEL (Ft.
Lauderdale), July 31, 2009.
35 E-mail from Gregg Lerman to MLR, Sept. 15, 2009.
36 Jose Cardenas, Give Him Death, Jury Decides, ST. PETERSBURG TIMES, Nov. 17, 2007.
37 Anthony Colarossi, Judge Spares Man Convicted in 1999 Car-Trunk Murders, ORLANDO SENTINEL,, Sept.30,
2003.
38 Anthony Colarossi, Orlando Man Dies in Panhandle Prison; Kevin Robinson Suffered Seizures. He was
Sentenced to Life in Prison After He Killed Two Women in 1999. ORLANDO SENTINEL, Mar. 11, 2004.
Trial Judge: Warren Burk
Defense Attorney: Kenneth Studstill
Case Synopsis: Roca-Moreno was found guilty of two counts of first-degree murder and one
count of attempted first-degree murder. Roca-Moreno, Anthony Fernandez (who hanged
himself shortly after his arrest), and Ernesto Rosa went to a trailer park to rob a purported
marijuana dealer. After the robbery, the trio left the trailer, but were chased by the victim.
He was shot, and the second victim was hit by a stray bullet. The victims were Kenneth
Hines and Richard Wise, Jr. While this satisfied the criteria for felony murder, defense
attorney Studstill argued that there was no evidence of heightened premeditation or intent.39
In 2006 Rosa was sentenced to 18 years in prison for his role in the crime.40
26. Rogers, Alvin
February 1997
Largo
Jury recommendation: 7-5
Trial Judge: Brandt Downey
Defense Attorney: David Parry
Case Synopsis: Convicted of murdering 17-year-old Kimberly Leshore during a robbery of
Church’s Fried Chicken in St. Petersburg. Rogers had been hospitalized 39 times for mental
illness, his mother hooked him on cocaine when he was 11, and Judge Downey was
concerned that his instructions to the jury had not been followed. He believed a death
sentence would have been overturned by the Florida Supreme Court.41
27. Saintil, Wilson
August 2008
Largo
Trial Judge: Nancy Moate Ley
Jury Recommendation: 9-3
Defense Attorney: Dudley Clapp and Michael Hays
Case Synopsis: Convicted of the murder of an assistant manager of a St. Petersburg
steakhouse, Stephen Holmes. Approximately $5,000 was also taken from the restaurant’s
safe. Saintil was a cook and cleaner in the restaurant. Holmes’s father wrote a letter to Judge
Ley stating that they opposed the death penalty, although Judge Ley stated that the law, and
not the letter, guided her decision. Saintil had been abandoned as a child in Haiti, had an IQ
of 63. Nonetheless, he had performed well as a father.42
Phone interview with Kenneth Studstill (Jul. 10, 2009); Zenaida A. Gonzalez, Jury Finds Man Guilty in Fatal
Shootings, FLORIDA TODAY, Apr. 3, 2005; Jury Recommends Death for Roca-Moreno, FLORIDA TODAY, Apr. 6,
2005.
40 John A. Torres, Murder Suspect OKs Plea Deal, Gets 18 Years, FLORIDA TODAY, Oct. 13, 2006,
41 Craig Pittman, Man Convicted in Teen’s Slaying Apologizes, Gets Life Sentence, ST. PETERSBURG TIMES, Feb. 27,
1997; David Sommer, Judge Sticks to His Plan, Spares Rogers from Death, TAMPA TRIBUNE, Feb. 27, 1997.
42 Prep Cook Goes on Trial in Durango Murder, ST. PETERSBURG TIMES, Apr. 16, 2008; Chris Tisch, Judge Rejects
Death Sentence, ST. PETERSBURG TIMES, Aug. 25, 2008.
28-29. Saum, Dustin [judge overrode two death recommendations]
September 1996
Bartow
Jury recommendation: 9-3 (Ward) and 10-2 (Kelly)
Trial Judge: Robert Young
Defense Attorneys: Austin Maslanik and Rex Dimmig
Case Synopsis: Convicted of killing his father, Larry, and two neighbors, Michael Kelly
and Carol Waid. The jury had rejected an insanity defense, but the judge did not.
Prosecutors did not seek death for the father’s murder. The judge found that the murders
were the product of “extreme emotional disturbance.”43
30. Silas, Willie
November 1993
Miami
Jury recommendation: 7-5
Trial Judge: Thomas Carney
Defense Attorney: Clinton Pitts
Case Synopsis: Convicted of killing a Canadian tourist, Gemma Lapointe, during an
attempted robbery. Judge Carney did not explain his decision, but the defense argued that
the jury was improperly influenced by intense media coverage of violence against tourists.44
31. Smith, Lawrence Joey
April 2008
Dade City
Jury recommendation: 7-5
Trial Judge: Lynn Tepper
Defense Attorney: Keith Hammond
Case Synopsis: Convicted as the triggerman in the 1999 revenge shootings of teenage pals
Robert Crawford and Stephen Tuttle (who survived), on orders from drug dealer Faunce
Pearce (who was sentenced to death). Two accomplices were not charged in exchange for
cooperating with prosecutors. Smith was originally sentenced to death for the murders in
2001, but that sentence was vacated by the Florida Supreme Court.45 Judge Tepper
questioned the honesty of the accomplices and decried the disparate treatment (she stated that
the prosecution never proved who the shooter was), and cited Smith’s positive effect on other
inmates.46
Susan Barbosa, Saum Receives Life in Prison: Judge Rejects Death Penalty, LAKELAND LEDGER, Sept. 21, 1996.
Murderer Gets Life Instead of Death, TALLAHASSEE DEMOCRAT, Nov. 22, 1993.
45 Smith v. State, 866 So.2d 51 (2004).
46 Geoff Fox, Smith To Serve Life in Slaying of Teen, TAMPA TRIBUNE, Apr. 23, 2008; Molly Moorhead, Life of
Clever Killer Spared, ST. PETERSBURG TIMES, Apr. 23, 2008; Tom Jackson, In Capital Cases, There Can Be No
Doubts, TAMPA TRIBUNE, Apr. 24, 2008.
Bartow
Jury recommendation: 9-3
Trial Judge: Dennis Maloney
Defense Attorney: Larry Hardaway
Case Synopsis: Convicted of the 1994 stabbing death of Robert Lucas. In 1995, Judge
Maloney sentenced Steverson to death for the same crime, but that conviction was
overturned by the Florida Supreme Court in 1997.47 Judge Maloney stated that the grounds
for sentencing a person to death had narrowed between 1995 and 1999, and that a death
sentence in this case would not survive proportionality review.48
33. Terranova, Joseph Angelo
November 1996
Tampa
Jury recommendation: 10-2
Trial Judge: J. Rogers Padgett
Defense Attorneys: Dwight Wells (who withdrew before the second jury was impaneled, but
who is responsible for the defendant’s ultimate discharge), and John Skye
Case Synopsis: Convicted of killing his former girlfriend, Brenda Lee Turner, and
her boyfriend, Michael Emerine, as they slept together in a trailer park. The first jury
recommended death, 10-2, but the judge set aside that recommendation and set the case for
a new sentencing hearing because even though the defendant had been found guilty of two
counts of first degree murder, only a single jury recommendation verdict had been submitted
to the jury. A second jury was convened but discharged before any evidence was heard
when a prospective juror reported to the judge that one of the seated jurors had stated during
jury selection that she wanted to be on the jury because she thought the defendant should
be “fried.” Over the state’s objection, Judge Padgett then made his decision to sentence the
defendant to two consecutive life terms without a new jury recommendation. On appeal in
1999, the 2nd District Court of Appeal (in a decision written by future Florida Supreme Court
Justice Peggy Quince) vacated both of the convictions because the state’s circumstantial
evidence failed to prove a prima facie case of either first-degree murder, and the defendant
was discharged.49
34. Tucker, Jason
August 2006
Viera
Jury Recommendation: 8-4
Trial Judge: Lisa Davidson
Defense Attorneys: Keith Szachacz and Kepler Funk
Case Synopsis: Tucker was convicted of the rape-murder of Joan Dunbar. Judge Davidson
Steverson v. State, 695 So.2d 687 (1997).
Bill Henry, Judge Reconsiders, Issues Life Sentence, TAMPA TRIBUNE, Sept. 4, 1999; Jenna Deopere, Judge
Spares Convicted Killer’s Life, LAKELAND LEDGER, Sept. 4, 1999;
49 Terranova v. State, 764 So.2d 612 (1999); Letter from John J. Skye to MLR, June 25, 2008; Barbara Boyer, Man
Gets Life in 2 Murders, TAMPA TRIBUNE, Nov. 13, 1996.
noted that Tucker was just a few days past his 18th birthday at the time of the offense, and he
suffered from mental health problems. Tucker had prohibited his attorneys from putting on
any mitigation during the penalty phase.50
35. Walker, James
August 1998
Miami
Jury recommendation: 7-5 in 1994 trial
Trial Judge: Michael Salmon
Defense Attorney: Brian McDonald (1994 trial).
Steve Harper, Ray Taseff, and Chris Spaulding (1998).
Case Synopsis: Convicted of killing his former girlfriend and their 17-month old son, binding
them with duct tape, and throwing them into a canal. Walker was originally sentenced to
death in 1994, at which time the trial court acknowledged significant child abuse, but gave it
no weight. On appeal, the Florida Supreme Court ordered a resentencing (with no new jury
empanelled or new jury recommendation).51 The trial court was ordered to “reweigh”
mitigation and give “careful and proper reconsideration” of the sentences,
according “appropriate consideration and weight” to the significant mitigating factor” of
Walker’s abusive upbringing.52
36. Williams, Walter E.
August 1994
Clearwater
Jury recommendation: 8-4
Trial Judge: Karl Grube
Defense Attorneys: Michael Schwartzberg and Richard Watts
Case Synopsis: Williams was convicted of the 1988 murder of his three-year old son.
Williams had a prior conviction of aggravated child abuse for abusing his daughter in 1990,
and was convicted of a 1989 attempted murder. Judge Grube cited the lack of premeditation,
that Williams suffered from a slight emotional disturbance that prevented him from
controlling his anger, and his cooperation with police (he would not have been prosecuted
had he not confessed).53
Table 1
Factors Used to Justify Death-to-Life Overrides (n=36)
Retardation or Mental Illness
Case Numbers
1, 3, 10, 12, 13, 15, 21, 22, 23, 24, 26, 27, 28-29,
34, 36
Kaustuv Basu, Convicted Killer Heads to Prison, FLORIDA TODAY, Aug. 17, 2006.
Walker v. State, 707 So.2d 300 (1997).
52 Id., at 319.
53 William Yelverton, Judge Rejects Death Sentence, TAMPA TRIBUNE, Aug. 27, 1994.
Questions about Premeditation or
Intent
6-7, 11, 13, 18, 20, 25, 33, 36
Questions about Who Was Triggerman
Mitigation outweighed aggravation
5, 8, 13, 17, 18, 22, 31, 32
11, 13, 14, 23, 24, 26, 27, 35
18, 22, 26, 30, 22
6-7, 17, 31
2, 4, 9, 12
2, 3, 33
3, 4, 27
Defendant’s Remorse, Responsibility, or
Cooperation
Lack of Prior Criminal Record
19, 22, 36
6, 16, 34
5, 16
1, 10
14
Table 2
Death-to-life Overrides, 1972-2011
Date
Nov. 1974
July 1975
Mar. 1976
May 1977
Apr. 1978
Mar. 1980
May 1980
Sept. 1980
Sept 1980
Mar. 1982
Oct. 1982
May 1984
Oct. 1984
Apr. 1985
July 1985
Oct. 1985
Oct. 1985
Oct 1985
Aug. 1986
Dec. 1986
Jan. 1987
Mar. 1987
June 1987
May 1987
July 1987
Aug. 1987
Aug. 1987
Trial Location
Orlando
Miami
Pasco County
Miami
Starke
Orlando
Sebring
Pensacola
Fernandina Beach
West Palm Beach
West Palm Beach
St. Petersburg
Tampa
Panama City
Tampa
Tampa
New Port Richey
Miami
Fort Myers
Fort Myers
Orlando
West Palm Beach
Miami
Miami
Sanford
Marianna
Tampa
Trial Judge
Peter de Manio
Dan Satin
Lawrence E. Keough
Wilkie D. Ferguson
Wayne Carlisle
Frank N. Kaney
John H. Dewell
William Frye III
Henry Lee Adams, Jr.
Marvin Mounts
Edward Rodgers
Susan Schaeffer
John P. Griffin
N. Russell Bower
M. William Graybill
Donald Evans
Lawrence E. Keough
Thomas M. Carney
Thomas Reese
Thomas Reese
Gary Formet
William Owen
Steven Robinson
Norman Gerstein
O. H. Eaton, Jr.
Robert L. McCrary
John P. Griffin
Sept. 1987
Nov. 1987
Mar. 1988
May 1988
Mar. 1988
Sept. 1988
Sept. 1988
Oct. 1988
Feb. 1989
Feb. 1989
Feb. 1989
July 1989
Nov. 1989
Jan. 1990
July 1990
Nov. 1990
Dec. 1991
Miami
New Port Richey
Melbourne
Live Oak
Inverness
Miami
Tampa
Fort Myers
Bartow
West Palm Beach
Melbourne
Bartow54
Daytona Beach
Bartow
West Palm Beach
Fort Myers
Ft. Lauderdale
Ralph N. Person
Lawrence E. Keough
John Antoon
John Peach
Thomas Sawaya
Ralph Person
Richard A. Lazzara
Thomas S. Reese
J. Tim Strickland
Harold Cohen
John Antoon
John Antoon
S. James Foxman
E. Randolph Bentley
Walter Colbath
William Nelson
Charles Green
On venue change from Brevard County.
Nov. 1993
Mar. 1994
Aug. 1994
Oct. 1995
Dec. 1995
Sept. 1996
Nov. 1996
Feb. 1997
June 1997
Mar. 1998
Aug. 1998
Nov. 1998
Sept. 1999
Feb. 2001
May 2002
Mar. 2003
June 2003
Sept. 2003
June 2004
July 2004
Dec. 2004
May 2005
May 2006
Aug. 2006
Sept. 2006
May 2008
Apr. 2008
July 2008
Aug. 2008
Oct. 2008
July 2009
Sept. 2009
Dec. 2009
Miami
Lee County
Clearwater
Bartow
W. Palm Beach
Bartow
Tampa
Clearwater
Jacksonville
Ft. Myers
Miami
Largo
Lakeland
Pinellas
Tampa
Tampa
Largo
Orlando
West Palm Beach
Shalimar
Polk County
Titusville
Key West
Viera
St. Augustine
Titusville
Dade City
Daytona Beach
Pinellas County
Pinellas County
West Palm Beach
Ft. Myers
Titusville
Thomas Carney
William Nelson
Karl Grube
J. Tim Strickland
Edward Rodgers
Robert Young
J. Rogers Padgett
Brandt Downey
Henry Davis
Isaac Anderson
Michael Salmon
David Seth Walker
Dennis Maloney
Robert Beach
J. Rogers Padgett
J. Rogers Padgett
Dee Anna Farnell
A. Thomas Mihok
Stephen Rapp
Thomas Remington
Dennis Maloney
Warren Burk
Trish Docherty
Lisa Davidson
Edward Hedstrom
Lisa Davidson
Lynn Tepper
J. David Walsh
Nancy Moate Ley
R. Timothy Peters
Sandra McSorley
Edward Volz, Jr.
O.H. Eaton
* See Radelet & Mello, supra note ??, at 216-28.
# See Appendix II, infra.
Judge overrode two death recommendations.
Table 3
Judges Who Have Overridden Death Recommendations
In More Than One Trial
William Cruse*
James Mays*
George Porter*
Thomas Carney
Willie Silas, infra
David Cook*
Lisa Davidson
James Lewis, infra.
Jason Tucker, infra.
O.H. Eaton
Justin Heyne, infra.
Victor White*
John Griffin
Ronald Hale
George Taylor
Lawrence E. Keough David Armour
Joseph Garron
Dennis Maloney
Brandan Gatlin, infra.
Bobby Steverson, infra.
William Nelson
Adam Chilmonik and David Hubbard, infra.
Eddie Ferguson*
J. Rogers Padgett
Troy Green, infra.
Alfred Harris, infra.
Joseph Terranova, infra.
Ralph Person
James Bryant, Dee Casteel, Michael Irvine, and William Rhodes*
Julita de Parias*
Edward Rodgers
James Ballard
Ronald Knight
Thomas Reese
Christopher Ferguson*
Juan Rivera*
J. Timothy Strickland Lewis Jamison, infra.
Michael Rippley*
*For case information, see Radelet & Mello, supra note ??, at 216-28.
David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33917
239-332-1100
http://www.justiceisourpassion.com
http://www.murderlawyerflorida.com
Wednesday, April 13, 2011
Fort Myers Federal Criminal Lawyer Attorney David A. Brener 239-332-1100 Utilizes Sentencing Poem For Federal Inmate
Recently, Fort Myers based federal criminal defense attorney David A. Brener 239-332-1100 utilized a poem which he wrote in order to persuade a federal district court judge to sentence his client below the advisory federal sentencing guidelines. The client had been charged with conspiracy to possess with intent to distribute oxycodone (roxycodone), methadone, and alprazalam (zanax). "Bank Robbin Bob", the alias used by the defendant and charged in the indictment, had spent almost thirty of his fifty seven years in prison on other charges, and was accused of being part of a scheme in which phony prescriptions were presented to various pharmacies for large quantities of drugs. Brener's client was personally responsible for obtaining over eleven thousand pills, and because the scripts were introduced into evidence, and the client was identified by the pharmacists as the person presenting them, he was convicted after a jury trial. During the trial, the government called numerous cooperating codefendants to testify against the defendant, who had fired a number of prior attorneys and took a very dim view of the court, the prosecutor, and the lead agent. Knowing that the client would insist on adressing the court in an inappropriate and self-defeating manner at sentencing, and being aware that the client had 29 criminal history points and was a career offender, attorney Brener wrote a poem about the case, which he recited at sentencing in an effort to inject some levity and creativity into the proceedings. The Court, which admittedly had other grounds to justify a downward variance, subsequently sentenced the Defendant to seventy (70) months below the low end of the advisory guidelines range, that is, to 135 months instead of the advisory range of 210 to 262 months. The text of the poem follows:
May it please the Court:
• Bank Robin Bob is no angel type – and as you heard at trial he’s really a hype.
• It’s not greed that moves him like some other thugs - for Bank Robbin Bob it’s all about the drugs.
• Yes, he’s got a lot of criminal history points,
• But the motive's always been the pills, H, and joints.
• And it’s true that he did take his case to a trial, but he wasn’t just wastin' the court’s time for a while.
• The case was built on addicts and thieves, and none of those co-defendant’s were worthy of beliefs.
• Every single one of them had a big motive to lie:
• They tried to please the government to get that Rule 35.
• Carey Bergin tried to minimize,
• Her role as one of the masterminds,
• But despite her suit and pleasant smile, the Agent confirmed she lied for a while.
• Susan Hamilton couldn’t reveal, how she ignored her own plea agreement, and took an appeal.
• And Theresa Martinez wouldn’t admit, that she lied for Bob, to help him acquit.
• Jason Bergin had a sham trial, that was over so fast it made Charley Harris smile.
• It was done because Bergin wouldn’t confess, and he wanted to preserve his Motion to Suppress.
• Judge, for almost three hours, the jury was out; I’d started to think, we had reasonable doubt.
• Then come the verdict for conspiracy. The government was happy when they heard it –guilty, guilty, guilty.
• This really isn’t about actual innoce`nce, but assigning culpability that seems to make sense.
• In our system of justice, what we value by far,
• Is the truth of the matter, that is our polestar.
• Each one of the witnesses fell into the muck,
of falsehood –n- self-interest, and began to obstruct.
Bank Robbin Bob forced the government’s proof, but did not commit perjury, or alter the truth.
• Judge, I’m not just asking for mere leniency`.
• But invite you to look at 3553.
• All of the runners got 10 years or less,
• Sprafka even sold drugs,
• To (PROBATION) he confessed.
• For him - the government did not pursue role or the max,
• But agreed to a downward departure in fact.
• Bob is an addict who didn’t sell or buy,
he just took his cut and went to get high.
The fact he’s an addict, he never denied,
• And if you care to know
what happened inside,
• Just look at his childhood, and at his young life,
deprived of love and full of strife.
• If you could go back, with the eyes of a seer,
• You’d say it’s no wonder - the fact that we’re here.
• Unlike the Bergins, who sold pills for cash – Bank Robbin Bob just needed his stash.
• Your Honor, I’m not asking to ignore history,
• Just put it in context, don’t throw away the key.
• Judge I’m not askin' you to send him on home,
• But give me some credit for writing this poem.
May it please the Court:
• Bank Robin Bob is no angel type – and as you heard at trial he’s really a hype.
• It’s not greed that moves him like some other thugs - for Bank Robbin Bob it’s all about the drugs.
• Yes, he’s got a lot of criminal history points,
• But the motive's always been the pills, H, and joints.
• And it’s true that he did take his case to a trial, but he wasn’t just wastin' the court’s time for a while.
• The case was built on addicts and thieves, and none of those co-defendant’s were worthy of beliefs.
• Every single one of them had a big motive to lie:
• They tried to please the government to get that Rule 35.
• Carey Bergin tried to minimize,
• Her role as one of the masterminds,
• But despite her suit and pleasant smile, the Agent confirmed she lied for a while.
• Susan Hamilton couldn’t reveal, how she ignored her own plea agreement, and took an appeal.
• And Theresa Martinez wouldn’t admit, that she lied for Bob, to help him acquit.
• Jason Bergin had a sham trial, that was over so fast it made Charley Harris smile.
• It was done because Bergin wouldn’t confess, and he wanted to preserve his Motion to Suppress.
• Judge, for almost three hours, the jury was out; I’d started to think, we had reasonable doubt.
• Then come the verdict for conspiracy. The government was happy when they heard it –guilty, guilty, guilty.
• This really isn’t about actual innoce`nce, but assigning culpability that seems to make sense.
• In our system of justice, what we value by far,
• Is the truth of the matter, that is our polestar.
• Each one of the witnesses fell into the muck,
of falsehood –n- self-interest, and began to obstruct.
Bank Robbin Bob forced the government’s proof, but did not commit perjury, or alter the truth.
• Judge, I’m not just asking for mere leniency`.
• But invite you to look at 3553.
• All of the runners got 10 years or less,
• Sprafka even sold drugs,
• To (PROBATION) he confessed.
• For him - the government did not pursue role or the max,
• But agreed to a downward departure in fact.
• Bob is an addict who didn’t sell or buy,
he just took his cut and went to get high.
The fact he’s an addict, he never denied,
• And if you care to know
what happened inside,
• Just look at his childhood, and at his young life,
deprived of love and full of strife.
• If you could go back, with the eyes of a seer,
• You’d say it’s no wonder - the fact that we’re here.
• Unlike the Bergins, who sold pills for cash – Bank Robbin Bob just needed his stash.
• Your Honor, I’m not asking to ignore history,
• Just put it in context, don’t throw away the key.
• Judge I’m not askin' you to send him on home,
• But give me some credit for writing this poem.
Thursday, March 24, 2011
Fort Myers Federal Defense Attorney David A. Brener 239-332-1100 To Speak At Panel Discussion About Federal Courts
Fort Myers Federal Criminal Defense Attorney David A. Brener of the Law Offices of Brener and DeMine, P.A. has been invited to speak at a panel discussion on the federal court system. The forum is open to all members of the community and will be attended by a federal district judge from Fort Myers, the United States Attorney for the Middle District of Florida, a federal civil law attorney, and David Brener, who will speak about federal criminal defense.
The forum takes place at the County Commissioner's Building (old courthouse) in downtown Fort Myers, on Friday March 25th, 2011, begining at 10:00 a.m.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
http://www.justiceisourpassion.com
The forum takes place at the County Commissioner's Building (old courthouse) in downtown Fort Myers, on Friday March 25th, 2011, begining at 10:00 a.m.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
http://www.justiceisourpassion.com
Friday, February 25, 2011
"Florida's Felony Murder Rule Sweeps With A Broad Brush", by David A. Brener, Esq.
Florida's felony - murder rule, incorporated into its murder statute, section 782.04, makes it first degree murder when the death of a non-participant occurs during the commission, attempt to commit, or escape from the commission of various enumerated felonies. These crimes include the most frequently committed felonies, such as robbery, burglary, rape, kidnapping, arson, and others. As a consequence, someone who agrees to participate in one of these felonies is deemed responsible under the law if a homicide occurs during the course of the crime. This is true even if the person did not pull the trigger or commit the killing, and even if the homicide was unintended, an accident, or actually committed by a third party, like, for example a police officer, security guard, or homeowner. If the person who is killed is the victim of the underlying crime, an innocent bystander, or anyone other than one of the perpetrators, the crime is first degree murder. If the person who dies is a co-perpetrator, then the proper charge, under Florida law, is felony second degree murder. If a non-enumerated felony is being committted when the killing occurs, like for example grand theft, then the proper charge, under the law, is felony third degree murder.
First degree murder is punishable by only two possible sentences: life in prison without parole, and the death penalty. Second degree felony murder is punishable by up to life in prison, with approximately twenty years as the low end of the sentencing range, without any additional charges. Third degree murder charges are rare, and usually are seen as a jury compromise verdict to lesser included charges of felony first degree murder.
Florida's felony murder rule applies to not only the killer, but the killer's co-participants in the underlying felony. That is the purpose of this law - to hold people responsible for a homicide which they did not commit because they took the risk associated with committing the underlying crime. The fact that a person did not intend for the homicide to occur, and did not know that someone, be it co-perpetrator or police officer, was going to kill, is no defense. This results in an extremely harsh application of the law, and one that really does not treat people who kill differently than those who do not. It is for this reason that the country which invented felony murder, England, has abolished it, and why a number of states, unlike Florida, have severely limited its application.
One recognized legal defense to felony murder in Florida is the independent act doctrine. Florida recognizes a defense to felony murder if the homicide was not committed by the defendant, the defendant did not intend for the homicide to occur, and the killing was not part of the plan and not a reasonably forseeable consequence of the plan to commit the underlying felony. This last part - about what is reasonably foreseeable - is where the problem lies, and where the litigation has centered. Some authorities suggest that when the defendant is aware that firearms are involved in the underlying felony, then the independent act defense is unavailable, even if the defendant did not carry. Thus, the getaway driver and the guy who planned the robbery but stayed home, can be charged and convicted of murder even though violence was not supposed to occur. Similarly, a defendant in a high speed chase cannot claim, when a police officer dies, that it was the independent act of the officer of pursuing the defendant at high speed which was the legal cause of the death. The courts have generally taken the view that to permit a defendant in a robbery homicide to defend based on the fact that the co-defendant killed the store clerk with a firearm which the defendant knew the co-defendant was carrying, or to defend because the store clerk killed the co-defendant when confronted by armed perpetrators, would eviscerate the felony murder rule.
To the contrary, leaving it to a jury to decide, and giving the legal instructions on independent act and allowing the jury to apply the law to the facts, would allow some relief, in exceptional cases, from this draconian law. Until this harsh law is repealed, this is the least we should do.
by: David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
www.murderlawyerflorida.com
www.justiceisourpassion.com
First degree murder is punishable by only two possible sentences: life in prison without parole, and the death penalty. Second degree felony murder is punishable by up to life in prison, with approximately twenty years as the low end of the sentencing range, without any additional charges. Third degree murder charges are rare, and usually are seen as a jury compromise verdict to lesser included charges of felony first degree murder.
Florida's felony murder rule applies to not only the killer, but the killer's co-participants in the underlying felony. That is the purpose of this law - to hold people responsible for a homicide which they did not commit because they took the risk associated with committing the underlying crime. The fact that a person did not intend for the homicide to occur, and did not know that someone, be it co-perpetrator or police officer, was going to kill, is no defense. This results in an extremely harsh application of the law, and one that really does not treat people who kill differently than those who do not. It is for this reason that the country which invented felony murder, England, has abolished it, and why a number of states, unlike Florida, have severely limited its application.
One recognized legal defense to felony murder in Florida is the independent act doctrine. Florida recognizes a defense to felony murder if the homicide was not committed by the defendant, the defendant did not intend for the homicide to occur, and the killing was not part of the plan and not a reasonably forseeable consequence of the plan to commit the underlying felony. This last part - about what is reasonably foreseeable - is where the problem lies, and where the litigation has centered. Some authorities suggest that when the defendant is aware that firearms are involved in the underlying felony, then the independent act defense is unavailable, even if the defendant did not carry. Thus, the getaway driver and the guy who planned the robbery but stayed home, can be charged and convicted of murder even though violence was not supposed to occur. Similarly, a defendant in a high speed chase cannot claim, when a police officer dies, that it was the independent act of the officer of pursuing the defendant at high speed which was the legal cause of the death. The courts have generally taken the view that to permit a defendant in a robbery homicide to defend based on the fact that the co-defendant killed the store clerk with a firearm which the defendant knew the co-defendant was carrying, or to defend because the store clerk killed the co-defendant when confronted by armed perpetrators, would eviscerate the felony murder rule.
To the contrary, leaving it to a jury to decide, and giving the legal instructions on independent act and allowing the jury to apply the law to the facts, would allow some relief, in exceptional cases, from this draconian law. Until this harsh law is repealed, this is the least we should do.
by: David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
www.murderlawyerflorida.com
www.justiceisourpassion.com
Wednesday, February 23, 2011
Florida Murder and Homicide Attorney Lawyer David A. Brener 239-332-1100 Travels Statewide For Homicide Defense
Florida Murder and Homicide Lawyer Attorney David A. Brener 239-332-1100, based out of Fort Myers, is available to represent clients charged with murder or manslaughter throughout the State of Florida. Brener is admitted to all the courts in the state, as well as the United States District Courts for the Southern and Middle Districts of Florida. Brener is one of a relatively few attorneys who are qualified to act as lead counsel in capital death penalty cases, and has handled approximately 20 such charges, as well as dozens of second degree murder and manslaughter cases. David A. Brener is peer review rated "AV Preeminent" in criminal law by Martindale Hubbell, and is listed in the Bar Registry of Preeminent Lawyers.
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
murderlawyerflorida.com
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
murderlawyerflorida.com
Sunday, January 23, 2011
Lee County Murder Lawyer David A. Brener and Partner Thomas DeMine To Try Strangulation Murder Case In February
Lee County Murder Lawyer Attorney David A. Brener 239-332-1100 and his Partner Thomas E. DeMine will be trying a Fort Myers strangulation homicide at the Lee County Justice Center in February 2011. The case is expected to last between one and two weeks. The state is not seeking the death penalty.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
Thursday, January 20, 2011
Fort Myers Florida Homicide Attorney David A. Brener To Speak At "Death Is Different" Seminar
Fort Myers Florida Homicide Attorney Lawyer David A. Brener 239-332-1100 has been invited to speak at the annual Florida Association of Criminal Defense Lawyers death penalty seminar "Death is Different" in March 2011. Brener's topic will be jury selection in capital cases - "Re-thinking Change of Venue in High Profile Capital Cases: Staying Put and Using Morgan v. Illinois and Pre-trial Publicity To Remove Pro-Death Jurors." This method of jury selection - a modified "Colorado Method" approach addressing the removal of mitigation-impaired and publicity-exposed prospective jurors, has been used by capital counsel, including Brener in a 2010 aggravated capital murder case, to seat juries which can recommend life in prison, rather than the death penalty, in spite of the death-biased death qualification process.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers,Fl. 33901
239-332-1100
http://www.justiceisourpassion.com
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers,Fl. 33901
239-332-1100
http://www.justiceisourpassion.com
Tuesday, January 18, 2011
Florida Murder Lawyer Attorney David A. Brener To Be Guest Speaker
Florida Murder Lawyer Attorney David A. Brener 239-332-1100 has been invited to give a presentation on jury selection in capital murder cases at "Loosening the Death Belt", a death penalty seminar sponsored by the Alabama Association of Criminal Defense Lawyers. The seminar runs from January 28th to 30th 2011, in Birmingham, Alabama.
David A. Brener
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
www.justiceisourpassion.com
David A. Brener
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
www.justiceisourpassion.com
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