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.

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

FIRST EXONERATED DEATH ROW INMATE DIES, by David A. Brener

David Keaton, Florida's and the nation's first exonerated death row inmate, died last month after several years of poor health and a history of heart problems.  Keaton was one of the infamous "Quincy Five", who along with four others was innocent of the murder of an off duty sheriff's deputy which took place during a 1970 convenience store robbery in the Florida town of Quincy.  Coerced confessions, unreliable eyewitness testimony, and a lack of physical evidence contributed to Keaton's wrongful conviction and his placement on Florida's death row.  This was true despite the fact that the fingerprint evidence did not match, nor did the description of the getaway vehicle.  The work of a private investigator tied ballistic and fingerprint evidence to several other men, none of whom was initially charged.  Keaton was fortunate- he was not only exonerated- but was determined to be innocent within two years of being sentenced to death.  Most are not so lucky.  Since Florida reinstated the death penalty, there have been 25 exonerations, most of whom spent decades on death row for a crime they did not commit.  Outrageous.

Florida's New and Improved Heat of Passion Manslaughter Instructions, by David A. Brener, Criminal Defense Attorney

In 2010, I wrote an article, which was published in "Res Gestae", the Lee County Bar Association magazine,  entitled "The Necessity for a Special Jury Instruction On Heat of Passion Manslaughter." (The article can be viewed on my profile at AVVO, on my website at www.justiceisourpassion.com, or at my old blog - Brenerscriminallawblog.blogspot.com).  In that piece, I advocated for the need for a jury instruction on heat of passion manslaughter, as the standard instruction gave the jury only the option of finding the defendant guilty of murder, or not guilty, and had no option to find the defendant guilty of the lesser crime of manslaughter. I noted that community standards of behavior had changed since the excusable homicide statute had been enacted, and that contemporary jurors were highly unlikely to completely exonerate a person who intentionally killed another, albeit under the influence of passion.  In addition, despite the existence of case law authorizing the use of the heat of passion doctrine to reduce the culpability and legal liability of one acting under such passion, the standard instruction provided no definitions or guidance as to the elements of this recognized partial defense, or as to the circumstances under which a jury could thus exercise its inherent "pardon power."

Recently, while preparing for trial in a murder case, I was pleased to see that the Supreme Court of Florida amended/revised the heat of passion instruction, included manslaughter as an authorized verdict if heat of passion existed at the time of the killing, and spelled out the necessary elements of the defense  for the bench, bar, and jury.

Florida Criminal Standard Jury Instruction 7.2, dealing with First Degree Murder, now reads in pertinent part:

An issue in this case is whether (defendant) did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).

The second degree murder instruction contains the same heat of passion requirements, except that for second degree murder, such a mind state vitiates not only premeditation, but also the depravity which characterizes depraved mind murder.  Instruction 7.4 states, in relevant part:

An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion:


a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that would have resulted in death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that would have resulted in the death of (victim).


There are comparable provisions for attempted first degree murder and attempted second degree murder.  The Supreme Court of Florida went beyond merely approving  the giving of a special instruction on heat of passion manslaughter, and did even more than drafting a "special instruction", as I had asserted was necessary.  It inserted the appropriate language and preexisting legal standards into the existing "standard instructions" on homicide and attempted homicide, and firmly established the doctrine of heat of passion as a viable partial defense.  

Criminal Attorneys Brener and DeMine PLLC, Open Naples Office

Fort Myers Criminal Defense Attorneys David A. Brener and Thomas E. DeMine have opened a law office in Naples, Florida.  The Naples office, located across the street from the Collier County Courthouse, is at 2500 Airport Road, Suite 209, Naples, Florida 34112.  Brener and DeMine will continue to practice criminal defense, handling all state and federal crimes, including murder and other violent crimes, narcotics cases, firearms and weapons charges, thefts and frauds, sex offenses, probation and control release violations, and driving and DUI charges.

  David A. Brener is rated "AV Preeminent" in Criminal Law by Martindale Hubbell,   "Superb" by AVVO,  and is one of a select few criminal attorneys in the State of Florida who is lead counsel qualified for capital death penalty cases.

Thomas E. DeMine is a former felony prosecutor in the State Attorneys Office for the Twentieth Judicial Circuit.  He is a former President of the Florida Association of Criminal Defense Lawyers, Lee County Chapter, and a member of the Florida Bar and the Bar of the United States District Court for the Middle District of Florida.

Brener and DeMine, PLLC have 35 years of combined criminal law experience.  The attorneys have handled virtually every type of criminal case, and have had jury trials on a wide variety of criminal charges. For more information, visit the website at www.justiceisourpassion.com.

Brener and DeMine, PLLC
2500 Airport Road
Suite 209
Naples, Fl.34112
239-300-4837