Thursday, June 24, 2010

Cape Coral Criminal Defense Attorneys: The Advantages of a Local Lawyer

In this time of the internet, many consumers of legal services are being referred to a criminal lawyer through the internet. While this has made the task of locating and comparing experience and qualifications of attorneys easier than ever before, it also can be misleading. Many attorneys from out of town advertise as Fort Myers or Lee County criminal lawyers, but they are actually based in other areas of the state. When they are contacted, they either refer the case to a local attorney, or, if the fee justifies the time and travel, make the trip to Fort Myers on a case-by case basis. This usually means that they are not intimately familiar with the particular judge, prosecutor and local rules of procedure, which may be significant in how the case is resolved. Local lawyers, who practice regularly before the trial courts in Lee County, know the players and the system. If they have a good repuatation, their representations to the court and prosecutor are accepted, as both of those entities want to have a continued professional relationship with the local defense counsel. This acts as a check on the arbitrary abuse of power, and helps to ensures that all parties, no matter how heinous the crime or difficult the case, act in good faith. The notion that local attorneys are somehow part of the system and therefore not going to fight as hard is simply not true. If anything, based on the continuing relationship of the parties, the local practitioner will usually get more slack than the out-of-towner when he or she is zealously representing a client.

Wednesday, June 23, 2010

Criminal Lawyers Must Be "Capital Qualified" to Represent First Degree Murder Clients

Until the death penalty is waived on the record in a first degree murder case, it is considered a capital case. Contrary to popular belief, the state need not file a Notice of Intention to Seek the Death Penalty in order for the case to be a capital one. The filing of such a Notice simply triggers reciprocal discovery obligations on the defense regarding evidence of mental mitigation in the penalty phase. Florida Rule of Criminal Procedure 3.112 provides for minimum qualifcations for all defense counsel - whether public, court-appointed, or privately retained - when undertaking representation on a case where the death penalty has not been waived. These qualifications include at least five years of criminal trial experiece, including acting as lead counsel in murder cases tried to a jury, capital education requirements, familiarity with the use of psychiatric and forensic evidence, and trying two death penalty cases to completion as co-counsel. This is extremely important because, until one has handled these cases as co-counsel, and actually tried them, one is simply unprepared for the novel and unique body of law, awesome responsibility, and necessary perspective to act as lead counsel in a first degree murder case where the penalty of death is still on the table. Without these experiences, one simply cannot properly evaluate the case or effectively advise the client. No matter what the fee, when someone's life hangs in the balance, these cases are not the ones for counsel to cut their teeth. The ABA Guidelines regarding death penalty cases provide that the requirement of two highly qualified and experienced capital lawyers applys from the moment the client is taken into custody for a homicide which could potentially result in a sentence of death. Thus, it is unavailing and unethical for counsel to agree to represent a client charged with first degree murder with the hope that he or she will be able to persuade the state to waive the death penalty in the future. This violates the express provisions of the Rule, and frequently results in the attorney having to withdraw after the client's family has expended all their funds on a lawyer who cannot ethically continue. Moreover, this can result in subsequently appointed qualified counsel requesting to re-do the work done by non-qualified counsel, including motions and depositions. Unfortunately, until judges take immediate action in the matter of determining the qualifications of counsel, this problem will continue, as those who are precluded from first degree murder representation often are, predictably, unaware of the rules governing capital crimes.

Fort Myers and Lee County Criminal Lawyers

Fort Myers and Lee County Criminal Lawyers who want to get involved with a law related organization have a number of options available to them. The Lee County Bar Association welcomes members of the Bar, and has a criminal law practice section. The Lee County Chapter of the Florida Association of Criminal Defense Lawyers also welcomes new members, and only costs twenty five dollars ($25) per year in chapter dues (the statewide dues are more, and a local member must be a statewide member). FACDL Lee County has meetings on the first Thursday of every month. For more information, contact David A. Brener, Esq., at 239-332-1100.

Monday, June 21, 2010

State Indicts on Fort Myers First Degree Murder

Last week, the State Attorney's Office indicted Manuel DeJesus-Rosales on charges of first degree murder and attempted first degree murder in the stabbings of his daughter and grandson. This case has the hallmarks of a death penalty case, and the spokesperson for the Office announcd that it would be taken before the death penalty committee soon. I think it is a foregone conclusion that they will seek the death penalty, as they can allege that the capital felony was especially heinous, atrocious and cruel, cold calculated and premeditated, occured after a prior violent felony (contemporaneous crime on daughter), victim under twelve, and defendant in familial authority of victim. Five aggravators usually sows up the state's request for the ultimate penalty. It remains to be seen what kind of mitigation Mr. DeJesus- Rosales has, and whether they actually receive a death recommendation.

Monday, June 14, 2010

Innocence Commission of Florida Up But Is It Running

Today, the Orlando Sentinel reported that the Florida Innocence Commission has been funded for the year and will have an attorney and staff member, as well as the yet to be announced commission members. The Supreme Court of Florida wants the Commission to look into systemic reasons for the wrongfully convicted in Florida. As I have written about before, the Death Penalty Information Center and the Innocence Project claim that 22 Florida death row inmates have been exonerated, the highest in the nation. This Commission is absolutely essential in order to confirm what we, as defense lawyers already know - that jailhouse snitches, junk science, coerced confessions, and mistaken eyewitness identifications, permeate the criminal justice system, and are resposible for the incarceration of more innocent people than anyone would care to know. But we must know, and we must move, after the truth comes to light, to preclude this type of evidence from coming into the courtroom. I have begun to file Motions for Reliability Hearings, especially after a federal judge issued an order, based on the findings of the NRC Report, that defense counsel has a duty to contest all forensic evidence. See my prior blog entitled "It's All Junk - Defense Counsel's Duty to Litigate Forensic Evidence."

Saturday, May 22, 2010

Defense often inadequate in 4 death-penalty states | McClatchy Check out this Article

Defense often inadequate in 4 death-penalty states | McClatchy

Two recent domestic murders in Fort Myers: Will the state seek the Death Penalty?

The two recent homicides in Lee County - one involving the shooting death of a woman by her husband, Zacarias Izquierdo, and the other involving the slashing of a three month old baby allegedly by the grandfather, Manuel DeJesus Rosales - are generating community outrage. And understandably so. Izquierdo is accused of shooting his wife with a rifle and then tying her body to the underside of his vehicle and dragging the bloody corpse across the street and leaving the car there with the body still tied on. Rosales is accused, on the day a restraining order expired, of slashing his daughter's throat and then, while she watched, slashing the throat of his three month old grandchild, who he referred to as "your bastard." Rosales and Izquierdo are both charged with first degree murder, and Rosales has an additional charge of attempted first degree murder. The question is will the state take these cases to the grand jury and seek indictments for first degree murder, and thus put the death penalty on the table?

As I have said many times, the death penalty is supposed to be reserved for the worst of the worst. Media coverage tends to report on the sensational aggravating facts of the crime, but very rarely reports on mitigating circumstances, and even when that does happen, it occurs only after the start of the penalty phase of a capital trial. The public would generally view every murder as especially heinous or cruel, and, without the benefit of seeing how different murder cases are charged and plea bargained, would likely view almost every one as an aggravated homicide.

The state will have to evaluate the case in light of the aggravating circumstances found in Florida Statute 921.141, and without the benefit of knowing much about either defendant's background or life history. This is in contrast to the federal system, where the defense gets an initial forty five (45)days to prepare and present a mitigation package to the government before a decision is made on the death penalty.

Nevertheless,in Rosales' case, there are two victims, the death was by knife wound, the daughter appreciated her pending death, and possibly that of her baby's, and a child under 12 was killed. In addition, it occurred right after the restraining order was over. The state therefore may argue (1)felony murder (2)especially heinous, atrocious and cruel (3)prior violent felony (contemporaneous attempted murder) (4) cold calculated and premeditated (5) victim in familial position.

I anticipate the state will seek death on the Rosales case. The Izquierdo case is an open question.

Friday, April 30, 2010


Yesterday, I received a Notice of Withdrawal of Intention To Seek The Death Penalty in State of Florida adv. Richard Elkins. Mr. Elkins is alleged to have killed and sexually assaulted a man who had, without Elkins' permission, grabbed his genitals. The state had been seeking the death penalty since 2007, but after details in the case became more fully known, the prosecutor was persuaded to take another look at the case to see if it really justified the ultimate punishment. Capital cases are supposed to be reserved for the most aggravated and least mitigated of murders, and without Elkins' D.N.A. linking him to the sexual assault, a sweetheart deal for the older and more mature co-defendant, Elkins' young age at the time of the homicide (18), and clear evidence of extensive drug and alcohol intoxication, the case simply could not, by any reasonable standard, be considered the worst of the worst.
Usually, defense lawyers consider going to the jail a necessary but unstimulating part of their job. Seeing Richard today in the jail and informing him of the state attorney's reconsideration of its decision was, without a doubt, a very happy occassion for both me and my client.

Monday, April 26, 2010


Approximately six weeks after my client, Kemar Johnston, was sentenced to two life terms, instead of the death penalty, for the torture murders of two teenagers, the other main Defendant in the case, Kenneth Lopez, pled guilty and received a sentence of fifty (50) years in prison. The state was seeking the death penalty for Mr. Lopez all along, even after he offered to plead guilty to consecutive life sentences, and especially after he perjured himself in his sworn statement, or proffer, in support of his attempt to receive a sentence less than death. Why the change in the position of the state attorney's office? The reason is simple. Under the law of proportionality applicable to capital cases, equally or less culpable co-defendants cannot receive a sentence greater than one who was tried to a jury and received a life sentence. While Mr. Lopez' level of culpability, especially after the evidence was adduced at the Johnston trial, was potentially greater than that of Kemar's, the prosecutor had already stated on the record that he viewed the two defendants as equally culpable. This meant that, for all intents and purposes, he was locked into that statement, and could not legally seek the death penalty for Lopez after Kemar Johnston's unanimous life recommendation. Since the maximum Lopez could receive was life in prison, he had to be given some incentive less than life in order to now plead guilty, especially given the possibility that the state would have to try Paul Nunes, as Nunes is attempting to withdraw his guilty plea. By flipping Lopez against Nunes, the state can probably close two cases, and in so doing close Lee County's ugly chapter known as the "Cash Feenz Murder Case."
As a capital defense lawyer, the only feeling greater than saving a life by your efforts is saving two lives. By saving Kemar, we were blessed to save the life of another.

Tuesday, April 20, 2010

About David A. Brener

David A. Brener, Criminal Defense Attorney

Welcome to the Criminal Law Blog of Fort Myers Criminal Defense Attorney
David A. Brener, Esq.
"Over 22 Years Criminal Defense Experience"
Experience DOES Matter

My Passions are:
The U.S. Constitution
The Florida Constitution
The 1st, 4th, 5th, 6th & 8th Amendments

Defending the accused, no matter what the accusation.
Defending Capital Cases, and Saving People From the Death Penalty.
Motorcycle Riding
Rock, Blues, and Jazz

David A. Brener, Esq. has been a member of the Florida Bar since 1988, the Federal Bar since 1989, and the Federal Trial Bar since 1992. He is a member of the Bar of the Supreme Court of the United States, and the Court of Appeals for the Eleventh Circuit (covering Florida, Alabama, Georgia, and Mississippi).

He is the current President of the Florida Association of Criminal Defense Lawyers, Lee County Chapter, and the Chairperson of the Criminal Law Practice Section of the Lee County Bar. Mr. Brener is the only fully qualified Lee County attorney on the Registry for Capital Death Penalty Cases. Brener is a qualified capital post-conviction lawyer for the Commission on Capital Cases, and a frequent writer on homicide and capital defense. In addition, he is a long- standing member of the the National Association of Criminal Defense Lawyers.

In twenty-two (22) years as a criminal defense lawyer, he has handled many thousands of criminal cases, including the trial of hundreds of cases through verdict, as well as:
•negotiated thousands of favorable plea bargains on behalf of clients with prosecutors in Lee County and the Twentieth Circuit (Naples, Punta Gorda, LaBelle);
•personally handled approximately fifty (50) homicide cases;
•acted as lead defense counsel or co-counsel in seventeen (17) capital first degree murder cases where the death penalty was sought;
•successfully received a waiver of the death penalty or a jury recommendation against the death penalty in sixteen (16) of those cases (one case is pending), and has no(zero) clients on death row;
*successfully defended Kemar Johnston, the alleged "ringleader" in the "Cash Feenz" double murder case from the death penalty, and secured a unanimous recommendation for life from the jury, despite tremendous negative pretrial publicity and a public outcry for the death penalty;
•handled and tried over one hundred and fifty(150) cases to juries in Miami-Dade, Broward, Palm Beach, and Lee Counties.

Over his career as a criminal defense lawyer, Brener has written, published or been quoted in various media including:

•“Prosecutorial Misconduct in the Penalty Phase Closing Argument of a Capital Case,”published in Florida Defender Magazine (Winter 2007)
•“Thoughts on Delays in Death Sentences,” Guest Opinion, Fort Myers News-Press(January 10, 2008)
•“The Mitigation Specialist as an Integral Part of the Defense Team in a Capital Murder Case,” Res Gestae, Lee County Bar Magazine (November 2008)
•“Limitations on the Scope of Voir Dire,” Res Gestae (January 2009)
•“The Bottom Line,” Res Gestae (February 2009)
•“The Necessity for a Special Jury Instruction on Heat of Passion Manslaughter,” Res Gestae (March 2009)
•“Death Penalty Costly in Hard Economic Times,” Guest Opinion, Fort Myers News-Press (April 02, 2009)
•“Florida’s Death Penalty Problems and Recommendations,” Res Gestae (May 2009)
•"Arraignment Exception Swallows Rule" ; Res Gestae (August,2009)
•"On Jury Nullification," Res Gestae (October 2009)
•"Not Just Wishful Thinking: The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases," Res Gestae, (January 2010)
*"It's All Junk: Defense Counsel's Duty to Litigate Forensic Evidence," Res Gestae,(May 2010)
*"Re-thinking Change of Venue in High-Profile Capital Cases: Staying Put and Using Pre-Trial Publicity and Morgan v. Illinois To Remove Pro-Death Jurors," to be published, Summer 2010.

David A. Brener has been quoted in numerous newspaper and television media outlets, including:
•The New York Times
•The Washington Post
•The Miami Herald
•The Naples Daily News
•The Fort Myers News-Press
*The Palm Beach Post
*The Fort Lauderdale Sun Sentinel
*Sports Illustrated
*ABC 7
*WINK News
*NBC 2
*FOX News
*Cape Coral Daily Breeze

He has appeared on IN SESSION (formerly COURT TV) as a special local commentator in the Juan Mendez double murder case, and is frequently asked to give his opinion in matters of law or strategy by local media outlets.

Mr. Brener sponsored the "MOVE IT or LOSE IT" Campaign with the Lee County Sheriff's Office, and received the First Annual Waterman Broadcasting Community Service Award.

David Brener served as lead defense counsel on a wide variety of criminal cases that were brought to trial, including cases where the charges were:


Call 239-332-1100 to set up an appointment.
Thank you.