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.

DEATH PENALTY WAIVED IN LEE COUNTY MURDER CASE

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.

SAVING ONE LIFE SAVES TWO: KEMAR JOHNSTON VERDICT SAVES CO-DEFENDANT

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.