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.

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.

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.

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.