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.

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.

U.S. Supreme Court Rules Florida Death Penalty Unconstitutional

Recently, In Hurst v. Florida, the United States Supreme Court ruled Florida's death penalty unconstitutional as it requires judges, not juries, to find the existence of aggravating circumstances, and to decide the appropriate sentence.  Florida's scheme relegated the jury to an advisory role, which the court had to give "great weight", but from which the judge received no guidance as to the jury's findings with the exception of its generalized recommendation.  Writing for the eight justice majority, Justice Sotomayer reiterated the holding in Apprendi v. New Jersey that any fact which exposes the Defendant to a greater punishment than that authorized by the jury's guilty verdict is an essential element which must be submitted to the jury.  Applying the Apprendi decision in Ring v. Arizona, the Court had previously held that capital punishment required factfinding by the jury and not a judge if the death penalty was to be constitutionally imposed. Since Florida's death penalty statute explicitly required the judge to make additional findings in order to impose death, and since the greatest punishment under Florida law without those findings was life imprisonment, the Court determined that Apprendi and Ring were squarely on point as applied to Florida.   In Hurst, decided January 12, 2016, the Court therefore rejected the State's arguments that the jury's guilty verdict in the first phase of the trial necessarily included the requisite factfinding, and also rejected its argument that defense counsel's conceding or not opposing the underlying felony in a contested trial has the same effect as a guilty plea from which factfinding is rendered unnecessary. The Court expressly overruled the pre-Ring cases of Hildwin v. Florida and Spaziano v. Florida to the extent that they "allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding."  The decision still leaves open the question of whether the judge, with the jury's factfinding, can impose sentence, and whether the jury verdict imposing death has to be unanimous.  Those questions were left for another day.

Another Client of David Brener Charged With Murder Receives No Additional Jail Time For Naples Murder

Attorney David Brener was able to secure a plea agreement for a client charged with First Degree Murder, Attempted Murder, and Robbery which resulted in his client, Rodsheek Williams, doing no additional jail time than than the sentence he was already serving. Williams was serving a 20 year sentence for tampering with witnesses, conspiracy, and gang activity. His attorney, David Brener of Fort Myers,  negotiated a plea agreement with the state to reduce the main charge, Murder in the Furst Degree, which carried a sentence of death or mandatory life imprisonment, to Second Degree Murder.  David Brener also got the prosecutor to waive the 25 year minimum mandatory, and to permit Williams to receive all of his 7 plus years time served. As a result, Mr. Williams will finish his sentence on the Murder case before he completes the sentence on the tampering case, likely in less than 13 years.

DeMine gets Not Guilty and Lesser Included Misdemeanor Verdict

Recently, Tom DeMine of Brener and DeMine, PLLC secured a Not Guilty verdict on one count and  a lesser included misdemeanor verdict on the second count of a two count felony information which was tried before a jury in Lee Circuit Court.  DeMine, who worked as a prosecutor in Lee County before joining attorney David A. Brener in  private practice, had counseled his client to reject the state's plea offer of prison time, and in so doing, saved him from years of incarceration.  Tom DeMine handles  felony and misdemeanor cases throughout the Twentieth Judicial Circuit, and in federal district court.

U.S. Supreme Court To Rule On Florida's Capital Murder Scheme, by David A. Brener

The United States Supreme Court granted review in May of a Florida death penalty case which will decide the constitutionality of Florida's capital sentencing scheme.  In Hurst v. Florida, the Supreme Court will decide whether Florida impermissibly permits juries to render an advisory death sentence by a mere majority vote, in contravention of the Sixth Amendment, and whether that lack of unanimity combined with judge sentencing and the lack of specific findings as to aggravating circumstances violates the Eighth Amendment's ban on cruel and unusual punishment.  Relying on the 2002 Supreme Court case of Ring v. Arizona, the Petitioner, along with amicus curiae briefs submitted by former Florida Supreme Court and trial judges, as well as the American Bar Association, argued that juries, not judges,  should make the factual findings and ultimate determination as to the sentence to be imposed.  They also made a compelling argument that jury unanimity should be required, as both reliability and community  moral standards are enhanced by unanimity of the jury when deciding the question of whether someone should live or die.  This case will be an extremely significant case for everyone connected with death penalty jurisprudence.  The case is scheduled for oral argument on October 3, 2015.

Fort Myers Naples Murder Homicide Attorney David A. Brener is Available to Represent Clients Charged With First Second Third Degree Murder Manslaughter Charges

Attorney David A. Brener (239) 332-1100 is available to represent clients charged with any homicide offense, including first, second, or third degree murder, manslaughter, vehicular homicide, DUI manslaughter, and driving without a license resulting in death.  Mr. Brener is lead counsel qualified for capital cases,  and has handled more than two dozen death penalty cases, as well as over one hundred murder cases.  Mr. Brener is rated "AV Preeminent" by Martindle Hubbell in Criminal Law, and is in the Bar Registry of Preeminent Attorneys.  David A. Brener is available for consultation and representation in Lee, Collier, Charlotte, Hendry, and Glades Counties, as well as throughout the State of Florida.

David A. Brener, Esq.
Brener and DeMine, PLLC
2550 First Street
Fort Myers, Fl. 33901
(239) 332-1100

2500 Airport Road
Naples Fl. 34112
(239) 300-4837