Tuesday, February 23, 2016

Why I Lost My Cool (Again) In Court

Today, I appeared in court to reinstate the bond of a client of mine charged with trafficking in MDMA who had had his bond revoked after a new arrest alleging two new law violations.    The new charges were misdemeanors, and one of the new charges was dropped,  and the client pled to credit time served on the second count a week or so ago.  Thus, the new law violations, which were the only cause of  yanking his bond on the trafficking case, were minor and, either dismissed or disposed of as a plea of convenience to get out of jail.  Therefore, the motion to reinstate was filed.

  A motion to reinstate a bond revoked due to a new arrest,  when the the new charges are resolved,  is so axiomatic that it is almost automatic, and before some judges, when all new counts are dismissed, does not even require a hearing.  When a hearing does occur, if it is not reinstated pursuant the same terms, amounts, and conditions, the court will almost always, as it ultimately did in this case, still grant a bond, that is, rescind the "no bond hold" and issue a surety bond in an amount it deems appropriate.

In this case, however, I had previously appeared at a court hearing for this client, and requested that the state turn over the lab report, as my experience has been, as relayed to the court then,  that arrests for trafficking in MDMA often result in formal charges for trafficking in MDMA, despite the fact that no lab report has been received by the state;  such a report often fails to confirm the charges as sworn to by the prosecution before arraignment.   Not only does this put the veritable cart before the horse, and not only is it antagonistic to the notion of probable cause, and the necessity for chemical testing at a lab for it to have any probative weight, but it creates a situation where an officer of the court swears to a charge in an information which is not yet "the receipt of sworn testimany which if true, would constitute the offense charged."

   At that prior hearing, the judge acknowledged my concern, and although it would not give the state a deadline to turn over the report, it did request that the prosecutor provide that information prior to the next hearing, and as soon as possible.

At the motion hearing today, one day before the case management conference, the state objected to the reinstatement of the trafficking bond, and unreasonably argued that my client's new arrest, with its concommittant bond revocation, was an "insult to the integrity of the whole court system."  The prosecutor also objected to my representations as to the Defendant's parental status, the source of my fee,  his alleged meager six year residence as ties to  Lee County, and the fact that he pled to the one misdemeanor as a plea of convenience,   which I profferred to the court, as an officer of the court, just as I have done thousands of times in almost thirty years of practicing law.  What she neglected to share with the court, was that she had in her possession, a lab report which indicated that the substance was not MDMA, and that therefore she had to dismiss the trafficking charge, all the while objecting to any bond, even one in a trafficking charge amount!  Then, I lost my cool.

Prosecutors are not only officers of the court, but have special responsibilities and tremendous power and influence over the lives of those whom they prosecute. The Rules of Professional Conduct charge prosecutors with a duty to seek justice, to assert the truth, and to fair dealing with both Defendant and defense counsel, as well as the court.  This prosecutor's position, combined with her silence until forced by my interruption and the court's multiple inquiries, violated those ehical responsibilities.  Ironically, it was she who challenged the integrity of the system, and it was she who challenged this old lawyer's credibility.

Fortunately, the judge saw the forest between the trees, and granted my client bond, and even lowered the bond from the amount previously required.  He deserves credit for not allowing blatant violations of prosecutorial ethics, or my inappropriate and overly emotional response, to stand in the way of justice, or the law.  But the question remains, if courts treated these violations seriously, and did not tolerate prosecutors who make misrepresentations, affirmatively or through omission, whether the state would cease these shenanigans and the integrity of the justice system would be therby enhanced.  Perhaps then zealous advocates would not need, from whatever source -  strength of character or our shortcomings - to lose their cool in order to draw focus and attention to what is really at stake.  And what is at stake?  Ask someone who is sitting in jail as an innocent man.  Or ask an old lawyer, who is appointed to defend the despised by the court and who is accused of being untruthful and unworthy of the court's trust, by a neophyte in a position of power who is banking on the fact that she can continue to violate trust and truth simply because she has that position and she is confidant that no consequences will befall her. Not just at some point, but at every point, civility and polite gamesmanship must yield to rude, naked, inappropriate truth.

Saturday, February 20, 2016

David Brener's Recent Verdicts and Results in Homicide Cases

State adv. R.W,, Collier County. Charged with First Degree Murder, Attempted First Degree Murder, Armed Robbery (Firearm), and Attempted Armed Robbery. State was seeking Death Penalty which  was waived after Mr. Brener entered as attorney of record.  Client was already serving 20 year sentence on related case for tampering, through writings from jail ,with the murder case witnesses. During jury selection, state offered plea to second degree murder and agreed to waive mandatory life sentence as well as 25 year minimum mandatory sentence  under 10-20-Life Law.  Client entered plea to second degree murder and received 22 year sentence concurrent with existing 20 year sentence, with all credit time served.

State adv. S.O., Collier County.  Client charged with Second Degree Murder for the cold case killing of his tenant's boyfriend. State alleged that Client lied in wait for victim.   Prior to trial, and after filing  motions attacking the admissibility of Client's statement and alleging constitutional violations, state offered to reduce the charge to Manslaughter, and eliminate the firearm language.  Client had been out on bond since Brener conducted bond hearing two weeks after arrest.  Client accepted plea to two (2) years house arrest, followed by three (3)years probation.

.State adv. T.B., Glades County.  Client charged with First Degree Murder. Victim was shot, pistol whipped, and run over several times by motor vehicle.  Before trial, state agreed to waive both  Death Penalty, and mandatory Life sentence. Client entered plea to term of years.

State adv. G.C., Collier County.  Client charged with Second Degree Murder and Attempted Second Degree Murder for the shooting of two men in Immokalee.  Brener raised misidentification defense and alleged that police utilized suggestive photographic lineups with three (3) identification witnesses. Client was found Not Guilty of all charges.

State adv. R.D,, Lee County.  Client charged with First Degree Murder, Burglary While Armed, and Child Abuse.  Client shot his wife at her job at Bobby Noonan Day Care Center in Cape Coral, while she was hiding from him and holding several young children in her arms.  State sought death penalty, and client immediately confessed while holding murder weapon.  After four (4) full weeks of jury selection, and examining eight hundred (800) potential jurors, Brener accepted a jury to try the guilt or innocence of the Client, and, as predicted after the inevitable guilty verdict,  to decide whether the Defendant should live or die by lethal injection in a separate penalty trial.  After several days of presenting mitigation evidence in the penalty phase, the jury recommended Life instead of the Death Penalty, and the judge sentenced Client to Life.