Federal criminal lawyers in Fort Myers

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

Lee County Dad Accused of Child Murder May Face Death Penalty

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

Florida Death Penalty Lawyers Must Have Special Qualifications

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

On Jury Nullification

On Jury Nullification

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

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

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

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

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

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

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

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

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

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

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

The Mitigation Specialist in a Capital Case

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

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

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

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

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

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

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

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

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

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

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

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

(Footnotes and citations omitted).

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

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

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

The Privilege against Self-Incrimination

THE PRIVILEGE AGAINST SELF INCRIMINATION DURING

THE BOOKING PROCESS

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

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

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

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

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

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

DAVID A. BRENER, Esq.

Chairperson, Criminal Law Practice Section

Lee County Bar Association,
Capital Qualified Criminal Defense Lawyer

ARRAIGNMENT EXCEPTION SWALLOWS RULE

ARRAIGNMENT EXCEPTION SWALLOWS RULE

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

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

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

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

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

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

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