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, 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.