[Deathpenalty] death penalty news----PENN., CALIF., S. DAK., MD., FLA.
rhalperi at mail.smu.edu
Wed Apr 18 06:03:59 UTC 2007
INTERVIEW: Mumia's lawyer responds to DA
In this interview, San Francisco attorney Robert R. Bryan responds to the
recent move from the Philadelphia DA requesting that the entire Third
Circuit Court recuse itself from Mumias case. Abu-Jamal Attorney Responds
to Philly DA
----Is the DA afraid the Third Circuit will grant a new trial?
Hans Bennett interviews Abu-Jamal attorney Robert R. Bryan
As reported in two recent Associated Press articles, the Philadelphia
District Attorney has filed a motion asking the entire 3rd U.S. Circuit
Court of Appeals to recuse itself from black death-row journalist Mumia
Abu-Jamals case on grounds that Gov. Ed Rendell, whose wife serves on the
court, was district attorney during Abu-Jamal's 1982 trial. The DA argues
that if the court rules unfavorably for Abu-Jamal, the defendant could
then argue that the ruling was a result of bias from the court, and as the
Associated Press wrote, the DA allegedly "wants to leave Abu-Jamal no
grounds for any future appeal."
Assistant District Attorney Hugh J. Burns Jr. wrote in his motion that
since "Mr. Rendell was the elected district attorney at the time in
question, and so would have been responsible for the supposed 'routine'
racially discriminatory practices of Philadelphia prosecutors, Abu-Jamal's
accusations necessarily implicate Mr. Rendell personally."
This request followed the March 22 announcement that Abu-Jamal would have
oral arguments in Philadelphia on May 17, where the court will consider 4
different issues that have already been certified for appeal. Supporters
have already begun organizing a mass-demonstration in Philadelphia on May
17, and many feel that the DA's request is actually designed 1) to delay
the oral arguments and 2) to move Abu-Jamal's case to a more conservative
circuit that will be less sympathetic to the issues being presented for a
Abu-Jamals attorney, Robert R, Bryan, strongly opposed this move by the
District Attorney and filed his response with the court on April 13.
In this interview (conducted on April 16), Bryan responds to this recent
move from the DA and provides background on the issues being considered on
San Francisco attorney Robert R. Bryan has appeared as chief counsel in
numerous murder cases and specializes in death-penalty litigation. He is a
member of the bar of the United States Supreme Court, California, New
York, Alabama, various federal courts, and is the former Chair of the
National Coalition to Abolish the Death Penalty, Washington, DC.
Mumia Abu-Jamal first began writing Mr. Bryan in 1986 and in 1991 formally
asked him to take his case. The attorney had to decline at that time due
to a full schedule of other capital case commitments. In 2003 Mr. Bryan
was again approached, and finally agreed to become lead counsel for Mr.
Abu-Jamal. He can be contacted via email: RobertRBryan [at] aol.com
Hans Bennett: Last week, you filed a response to the DA's request to have
the 3rd Circuit Court recuse itself? What's this all about?
Robert R. Bryan: I was surprised that the Philadelphia District Attorney
actually asked for the disqualification of every judge on the U.S. Court
of Appeals for the Third Circuit. This seems really over the top. On
Friday, April 13, I filed a response aggressively opposing this effort by
the DA. One of my concerns is that the prosecution not be allowed to use
this ploy to delay oral argument which is set for May 17.
Mumia has been locked up for over a quarter of a century and on death row
for 24. This day for oral arguments has been a long time coming and we do
not want justice delayed. That is the bottom line. Also, I feel that this
court can be fair. The grounds presented by the DA for disqualification of
every judge are baseless and absurd.
I have been doing death penalty work for three decades and this is a novel
approach. Of course, in some cases a judge might not be fair and must be
disqualified. An example would be when I reopened in New Jersey the
Hauptmann-Lindbergh Trial of the Century on behalf of Anna Hauptmann, the
widow of Richard Hauptmann. He was executed in 1936 for the kidnap-murder
of Charles A. Lindbergh, Jr.; that was long before I was born. In the
1980s I uncovered evidence suppressed by the government establishing that
Mr. Hauptmann was in fact innocent. We were litigating the case in the
U.S. District Court, Newark. I asked for the recusal of the judge assigned
to the case in the belief he could not be fair because his father had been
involved in the initial 1932 Lindbergh kidnap investigation as a police
Recusal is statutorily required where a judge has a personal bias or
prejudice concerning a party, or personal knowledge of disputed facts, or
where there is the appearance of impropriety. However, I do not see those
conditions in the case of Mumia Abu-Jamal, where the DA wants to
disqualify not just one judge, but rather the entire court.
Bennett: Has the 3-judge panel even been selected yet?
Bryan: No. We do not at this point know whom the three judges will be to
hear and decide the case. For the District Attorney to be asking for
disqualification under the circumstances seems absurd.
Bennett: In December, 2005, the U.S. Court of Appeals shocked many by
agreeing to consider 2 claims not "certified for appeal" by Judge Yohn in
2001. Do you think the DA is threatened by the 3rd Circuit because they
may fairly consider the issues and grant your client a new trial?
Bryan: The prosecution seems intent on doing just about anything to avoid
that result: a new trial not riddled with racism. The DA's efforts seem
not only for the purpose of delaying the May 17 oral argument, but is also
a transparent attempt to maneuver the case into being heard by really
conservative judges from other circuits. This court, the Third Circuit,
has a reputation for being fair and evenhanded, much more than some of the
other courts. That is all Mumia and I wantfairness.
The United States is divided into different circuits. This particular
circuit is known for being just, particularly when there have been
constitutional abuses and has been willing to grant relief. It is clear
what the DA is trying to do. The prosecution wants Mumia's case out of the
Third Circuit and heard instead by judges from elsewhere who are more
conservative and less concerned about constitutional violations,
particularly with death penalty cases such as this.
A word of caution. Being in the Third Circuit certainly does not guarantee
a favorable outcome. What Mumia and I want is that his case be fairly
heard and adjudged. If that occurs then we have a good chance of being
granted a new trial, since the constitutional violations are so egregious.
Racism and unfairness are threads that have run through this case since
Bennett: In 2003 a state court ruled against considering court
stenographer Terry Maurer-Carter's affidavit. Since this time, have you
been able to include her affidavit in the current federal appeal, despite
the state ruling?
Bryan: Ms. Maurer-Carter came forward in August, 2001 with startling new
evidence. She revealed that during the 1982 trial she overheard Judge
Albert Sabo state, in reference to Mumia, that he was going to help "fry
the nigger." Her sworn declaration was immediately filed in the U.S.
District Court. 3 weeks later on September 17, 2001, a motion was filed
federally in an effort to expand the judicial bias claim, contending that
the newly discovered evidence established the judge "was racially
prejudiced" against Mumia. The evidence also was submitted to the state
court, and then as part of a petition I filed March 8, 2004 in the United
States Supreme Court. The issue we presented was whether it is permissible
under the Fifth, Sixth and Fourteenth Amendments for a judge to preside
over a capital murder trial in which he was overheard stating in reference
to the accused that he was going to help "fry the nigger." Just quoting
those horrible words of Judge Sabo sends chills down my spine.
Bennett: You have included her statement in your current 3rd Circuit
appeal, in particular regarding the 4th issue being considered: Judge
Sabo's unfairness at the 1995 PCRA evidentiary hearings.
Bryan: Yes. We have four issues in this case and this one concerns Judge
Sabo's bias, not at the 1982 trial, but during the 1995 post-conviction
(PCRA) evidentiary hearing. I am stuck with that limitation since the
lawyers previously on the case did not as a matter of law accuse Judge
Sabo of bias at the trial. The judge who was deciding whether or not to
grant a new trial in 1995 was the same person who presided over the 1982
trial in which my client was convicted and sentenced to death. Judge Yohn
assumed as part of his federal rulings in 2001, that in denying relief
Judge Sabo was impartial and fair. Now we know that was not true. When it
came to Mumia Abu-Jamal, Judge Sabo made a bigoted remark that he was
intent on seeing my client "fry," to be executed. The constitutional
principles of due process, fundamental fairness, and equal protection of
the law, had taken a holiday from his courtroom. As you know, Mumia has
been on death row ever since the trial.
Aside from the numerous violations of my client's constitutional rights
detailed in our briefs, we also have this evidence that Judge Sabo said he
was going to help the prosecution kill my client, referring to him in the
most racist and despicable manner imaginable.
Sabo's fry the nigger comment is interrelated with what we are arguing on
May 17, but it is not the sole basis of the argument that Judge Sabo was
unfair at the 1995 hearing. But it is now part of it and we put it in
because it was raised shortly following discovery, and was presented to
the U.S. District Court. So I feel it is legitimately there before the
Court of Appeals.
As you know, I have litigated numerous death penalty cases around the
country for three decades. Back when I was trying many cases in the South,
I went before some very racist judges. One even jailed me 3 days for
contempt of court for challenging his racism and bias. Incidentally, my
client was clearedacquitted of murder and all related charges. With all
the racism I have witnessed, never have I been before someone who was so
arrogant about his or her racism as to just openly talk about it. Mumias
case occurred not in the South, but in Philadelphia, which, aside from the
police department, is a sophisticated city. Yet, in this case Judge Sabo
refers to Mumia as a "nigger" and boasts about helping the prosecution
ensure that he is executed. This is the big gorilla in the room that must
be addressed; it cannot be ignored.
Bennett: It's remarkable that Judge Pamela Dembe ruled in 2001 that even
if Maurer-Carter was correct, it simply does not matter. She said that
since it "was a jury trial, as long as the presiding judge's rulings were
legally correct, claims as to what might have motivated or animated those
rulings are not relevant."
Bryan: I feel that as a matter of law Judge Dembe was wrong, and of course
rejecting that she employed faulty judgment. The subsequent ruling by the
Pennsylvania Supreme Court, which I took to the United State Supreme
Court, was likewise based upon illogical reasoning. Nevertheless, as I
mentioned earlier, this issue was also presented during the same period in
the U.S. District Court. The sworn declaration of Terri Maurer-Carter was
promptly filed federally.
It is interesting that Ms. Maurer-Carters husband was a police officer and
she an official court stenographer who has received awards for the
excellence for her court-reporting work. She is just a normal personal,
not political, but what Ms. Maurer-Carter overheard really bothered her. I
have great respect for her, that she had the courage to come forward with
this information. Ms. Maurer-Carter could have remained silent and stayed
out of this, and she and her family would certainly feel safer at night.
Bennett: Do you have an estimate of you how long it will take for the 3rd
Circuit Court to make the ruling on a new trial?
Bryan: It is difficult to say. The court has a goal of having an internal
draft decision within 60 days following assignment or all supplemental
briefing. Yet, if a judge on the panel wishes to concur or dissent, he or
she should submit the opinion within 45 days after a second judge's
approval of the majority decision. These are only targets the court sets
for itself so it could reach a decision much quicker, or longer. I hope to
have a ruling before the end of the summer, but that depends upon what
happens internally with the court; it could be sometime in the fall. I do
not think it will sit on this case for a long time. This is a court not
known to procrastinate and hold up the wheels of justice.
Bennett: What rulings could the court make?
Bryan: I will give you the 2 extremes of what might happen: (1) If the
court decides that Mumia deserves a new trial, the judges might order a
retrial. (2) If the court rules against us on everything, it we would be
looking down the barrel of an execution and need to petition the United
States Supreme Court. Of course, there are various rulings the court could
make between these 2 extremes, such as sending the case back to a lower
court for further hearings, only ordering a retrial on the issues of life
or death, etc.
The issues in this case are of great constitutional importance. In
additional to the work by associate counsel Professor Judith L. Ritter and
me, there has been support from highly respected legal organizations. The
NAACP Legal Defense Fund has written a friend of the court brief on the
"racism-in-jury-selection" issue. There was also a brief filed by the
National Lawyers Guild, which has been joined by the National Conference
of Black Lawyers, International Association of Democratic Lawyers, Charles
Hamilton Houston Institute of Race and Justice at Harvard Law School, the
Southern Center for Human Rights, and the National Jury Project. That is
quite a list of human rights-oriented organizations arguing that this case
cries for a new and fair trial not riddled with racism, as it was
Bennett: What can supporters around the world do to best aid your battle
in the courts?
Bryan: People need to openly express their concern for human rights,
opposition to the death penalty, and demand what we are after in this
case: a completely new trial, at the conclusion of that trial, my client
could go home to his family. That is the bottom line, and that is whats
driving me and the legal team: Mumia's ultimate freedom.
That being said, I consider it very important that people's voices are
heard in many ways, like peacefully demonstrating, writing letters to
newspaper editors, op-ed pieces, news articles. It is really like what
you, Hans, are doing: just getting the word out publicly about the
injustices that have occurred in this caseletting the facts speak for
themselves. That is what people can do. Of course we need financial
support for the legal effort, and there is a fund strictly for the legal
defense, the Committee To Save Mumia Abu-Jamal (see below).
The big thing is that that people's voices are heard. I was in Berlin,
Germany, in January and spoke to an audience of well over 2000 people. The
audiences boisterous reaction to my remarks was overwhelmingthey
recognized the importance of Mumia to the cause of peoples basic rights.
There is also much activism in many other countries, such as France,
England, Spain, Italy. Mumia Abu-Jamal has become a worldwide symbol in
the struggle against the death penalty, and against human rights abuses.
When arrested Mumia was a prominent journalist who was known as the Voice
of the Voiceless, because he spoke out against governmental abuses and
corruption. The authorities thought when they prosecuted and put him on
death row, they would silence him. Ironically he is heard by more people
today through radio and print than he was when free. Mumia does not write
about himself, but rather about big issues like women's rights, racism,
wrongs committed by the U.S. and other governments in Iraq, how we treat
prisoners at places like Guantanamo, the education of young people, and
The Philadelphia District Attorneys goal is to kill Mumia, to see him put
him in the death chamber, strapped down, and murdered in the name of the
law. The hope of the state is to silence Mumia once and for all.
We all need to understand that the racism and unfairness continues through
the present and we are trying to change that.
Bennett: Anything else to add?
Bryan: The Batson issue, which concerns racism in jury selection, is very
important. It was not just in my client's case, but it was actually the
modus operandi of lawyers in the District Attorneys Office to remove
people from the jury who were black and poor. This rendered the trial
unfair. The U.S. Supreme Court as well as the U.S. Circuit Court of
Appeals have spoken on this issue, ruling that this type of behavior by
prosecutors is constitutionally unacceptable.
Bennett: How long have you and Mumia know each other?
Bryan: Mumia started writing me in 1986 and we eventually got to know each
other, but I had to turn down the case because I was too busy with other
death penalty work. When he came back to me just over four years ago, I
could not say no, because it was too important and he needed help.
Mumia has reminded me that what we are all doing is far bigger that just
his case. It relates to everyone on death row, and is about people
everywhere who are unfairly treated, political prisoners around the globe.
We need to bear in mind that a victory for Mumia Abu-Jamal will help other
people. That is Mumia's concern. He hopes that what we are doing in his
case will help other death row inmates, and put a spotlight on the things
wrong with legal systems everywhere. The racism needs to be exposed,
brought out to the light of day, and changed. We are about making change
for a lot of people.
To contribute to the legal defense of Mumia, check should be made payable
to the "National Lawyers Guild Foundation." The NLG Foundation is a
tax-exempt, nonprofit charitable organization under Internal Revenue Code
Section 501(c)(3). Donations should be mailed to: Committee To Save Mumia
Abu-Jamal, P.O. Box 2012, New York, NY 10159.
The 4 issues being considered are:
#1. Whether the penalty phase of Mumia's trial violated the legal
precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling.
This issue was grounds for Yohns overturning the death sentence in 2001
and is now being appealed by the DA. Yohn ruled that sentencing forms used
by jurors and Judge Sabo's instructions to the jury were confusing.
Subsequently, jurors mistakenly believed that they had to unanimously
agree on any mitigating circumstances in order to be considered as
weighing against a death sentence.
#2. "Certified for appeal" by Yohn in 2001, the Batson claim, addresses
the prosecution's use of peremptory challenges to exclude Blacks from
Mumia's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky
that a defendant deserves a new trial if it can be proved that jurors were
excluded on the grounds of race.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory
challenges to remove black jurors that were otherwise acceptable. While
Philadelphia is 44% black, Abu-Jamal's jury was composed of ten whites and
only two blacks. From 1977-1986 when current Pennsylvania governor Ed
Rendell was Philadelphias DA, the evidence of racism is striking: from
1977-86, the Philadelphia DA struck 58% of black jurors, but only 22% of
#3. The legality of McGill's statement to the jury minimizing the
seriousness of a verdict of guilt: "if you find the Defendant guilty of
course there would be appeal after appeal and perhaps there could be a
reversal of the case, or whatever, so that may not be final."
In 1986 the Pennsylvania Supreme Court ruled against McGill in another
case (Commonwealth v. Baker) on the same grounds. When Mumia addressed
this same issue in his 1989 appeal with the State Supreme Court, the court
reversed its decision on the legality of such a statementruling against
the claim for a mistrial.
Incredibly, just one year later, in the very next case involving this
issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and
restored the precedent. However, this would not affect the ruling against
Mumia, because the court ruled that this precedent would only apply in
#4. The fairness of Mumia's 1995-97 PCRA hearings when the retired,
74-year-old Judge Sabo was called back specifically for the hearing.
Besides the obvious unfairness of recalling the exact same judge to rule
on his fairness in the original 1982 trial, his actual PCRA bias has been
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that
the "behavior of the judgegave the impression, damaging in the extreme, of
undue haste and hostility toward the defense's case." Concluding the PCRA
hearing, Sabo rejected all evidence and every witness presented by the
defense as not being credible. Therefore, Sabo upheld all of the facts and
procedures of the original trial as being correct.
For more information, visit mumia.org (Philadelphia), freemumia.com (New
York City), freemumia.org (San Francisco), or emajonline.com (Educators
for Mumia). For the latest on Abu-Jamal from the independent media, check
out Bennetts new Voice of the Voiceless series on Abu-Jamal being
published in the months leading up to the oral arguments at:
(source: Hans Bennett (insubordination.blogspot.com) is a
Philadelphia-based photojournalist who has been documenting the movement
to free Mumia and all political prisoners for more than 5 years;
Execution room outrage imperils prisons project
Gov. Arnold Schwarzenegger's proposed $10 billion prison construction plan
suffered a setback Monday as the top two legislative Democrats blasted
corrections officials for building a new execution chamber at San Quentin
State Prison without telling lawmakers and suggested they wouldn't spend
money on a mismanaged prison system.
Senate President Pro Tem Don Perata on Monday questioned the credibility
and management skills of the governor's Department of Corrections and
Rehabilitation, suggesting that the construction of the chamber at San
Quentin illustrates why Democrats are balking at agreeing to
Schwarzenegger's proposal to spend more on new prison and jail
"It would be irresponsible to appropriate more money to a department that
has clearly shown it is lacking in management skills,'' Perata said in an
His comments were echoed by Assembly Speaker Fabian Nez, who earlier
Monday gave an angry and impromptu speech on the floor of the Assembly
floor chastising a Republican assemblyman who has complained about
inaction on prison reform. The Assembly discussion spotlighted growing
tension in the Legislature as the clock ticks on judicial threats to
implement a population cap on the overcrowded corrections system. Three
federal judges plan to hold hearings on a cap in June, and Schwarzenegger
and lawmakers are negotiating on changes that could alleviate overcrowding
and avert judicial intervention.
Perata suggested there were still plenty of sticking points.
"There are very few of us on this side of the building that have the
confidence in the department to make changes,'' he said, referring to
Senate Democrats, who have demanded that any new prison building be
coupled with more programs for inmates, such as drug rehabilitation or job
The department has a poor track record of implementing inmate programs: a
recent report by a prison watchdog agency said the state had wasted $1
billion on ineffective drug treatment services, and Schwarzenegger
abandoned an attempt in 2004 to send parole violators to drug treatment or
other training programs instead of prison in part because the
administration had not trained parole agents on the policy changes or
lined up enough facilities to accept parolees.
Lawmakers learned just last week that prison officials quietly began
building a new execution chamber at San Quentin in January. The
construction was estimated to cost $399,000, or just under the $400,000
price tag that would have required legislative approval. Jim Tilton,
secretary of the Department of Corrections and Rehabilitation, told The
Chronicle Friday that he had not been notified by subordinates that they
were proceeding with the project.
The revelation left many legislators furious, and state Sen. Gloria
Romero, D-Los Angeles, said Monday she would summon corrections officials
to a hearing on April 25 to explain the project and how they arrived at
the cost estimates.
"This is a department that can't clear its throat for under $400,000, so
that number lacks credibility to me,'' Perata said of a department that
has routinely spent more money than legislators allot.
Oscar Hidalgo, a corrections spokesman, said costs were low because the
department was renovating an existing building and using inmates on the
project, instead of bidding it out to a construction company. The new
lethal injection chamber is being built around the corner from the
existing execution chamber.
"We are not razing a building or putting up a new one,'' Hidalgo noted.
The new chamber is part of several changes the department is making to
respond to a federal judge who in December suggested that the state's
haphazard process of carrying out capital punishment was unconstitutional.
Hidalgo said Corrections Undersecretary Bud Prunty was in charge of making
changes to the lethal injection procedure.
A spokesman for the governor, Communications Director Adam Mendelsohn,
said Schwarzenegger was not upset with corrections officials for
proceeding with the construction, noting the "administration believes we
need to act quickly to respond to judges' concerns.''
How much impact the San Quentin construction project will have on the
broader prison reform negotiations remains to be seen, but Nez also said
the project was problematic.
"The same management that says they didn't know a new execution chamber
was being built is telling us they have a firm grasp on how they're going
to fix the overcrowding problem,'' said Nez, who lashed out on the
Assembly floor earlier Monday after Assemblyman Todd Spitzer, R-Orange,
complained that the lack of a prison reform deal would lead to the release
of inmates before their sentences were finished.
A clearly irritated Nez said that negotiations were continuing, and then
urged Spitzer to come up with his own solution.
"If you want to go before the voters of the state of California and ask
them to support a bond for $20 billion, $30 billion, whatever it takes so
that we can keep imprisoning the people you want to imprison under the
auspices of protecting the public safety, then let's put it on,'' Nez
said. "Let the voters decide. I'm prepared to support your proposal today,
tomorrow, any day of the week.''
Schwarzenegger in December proposed spending more than $10 billion in
prison and jail construction, including adding beds to existing prisons
and creating new facilities near urban centers to help inmates preparing
to be released. Democrats have balked at the cost and are pushing to spend
(source: San Francisco Chronicle)
S.D. jury to get death penalty case Wednesday
The last witnesses have testified at the Sioux Falls, South Dakota, trial
of a deaf woman facing life in prison or death by lethal injection.
Jurors went home for the night and will start deliberating tomorrow after
attorneys give closing arguments.
The jury convicted 43-year-old Daphne Wright last week of kidnapping and
murdering 42-year-old Darlene VanderGiesen in February 2006.
Prosecutors say Wright was jealous of the friendship that VanderGiesen had
with Wright's former lover, another deaf woman from Sioux Falls.
Wright's mother, 63-year-old Carolyn Tucker, of Upper Marlboro, Maryland,
testified that her daughter lost her hearing to disease around 10 months
of age and grew up with an abusive, alcoholic father who died of cancer
when Wright was a teen.
If Wright is sentenced to death, she would be the 1st woman on South
Dakota's death row and likely the 1st deaf woman on death row in the
(source: Associated Press)
Death penalty challenged in prison bus slaying
An attorney for an inmate charged with strangling a fellow inmate on a
prison bus says Maryland's moratorium on executions should bar prosecutors
from seeking the death penalty.
Lawyer Harry Trainor today asked a Harford County judge to void the
state's notice of intent to seek the death penalty for Kevin Johns.
Maryland's highest court ruled in December that the state didn't correctly
adopt parts of its protocol for lethal injections. That ruling established
a de facto death penalty moratorium.
Defense attorney Harry Trainor says capital cases are more difficult to
try and the court shouldn't face that burden for a punishment that can't
But the state counters the death penalty has not been repealed and
prosecutors should go to trial with the laws that are in effect.
Also today, the judge postponed the July 16th start of the trial and
scheduled a motions hearing for August 14th. A new trial date has not been
(source: Associated Press)
Cash Feenz ringleader pleads lack of attorneys, fights death penalty fate
A Lee County judge said this morning that the indictment of 9 people, many
of whom were teenagers, in the Cape Coral Cash Feenz case was so unusual
that it depleted local resources for qualified and available attorneys.
Defense attorney David Brener wants the death penalty pulled off the table
in the murder case against his client, Kemar Johnston, because weeks
passed after his Nov. 2 arrest before he was appointed a lawyer. Judge
Thomas Reese did not immediately rule on Brener's motion but he agreed
that, with so many defendants in the Cash Feenz case, the area's stable of
eligible attorneys was quickly exhausted.
Johnston, 20, is accused of being the ringleader in the October 2006
attacks on Alexis and Jeffrey Sosa. The teens were reportedly beaten and
tortured in his home, and ultimately killed the night of his birthday
He is charged with 2 counts each of 1st-degree murder, kidnapping and
(source: Naples News)
No death penalty requested in Cape murder case
Kemar Johnston, center, is escorted out of a Lee County courtroom Tuesday
after sitting through several motions filed by his attorney, David Brener.
One of the motions he filed was to make death not a possible penalty for
the 20-year-old Cape Coral man.
The attorney for alleged murderer Kemar Johnston presented 3 motions
Tuesday morning, one of which was to make death not a possible penalty for
the 20-year-old Cape Coral man.
Johnston is charged with 2 counts of 1st degree murder and other charges
related to the Oct. 7 killings of Alexis Sosa, 18, and Jeffrey Sosa, 14,
in Cape Coral.
Lee County Circuit Judge Thomas Reese granted one of Johnstons motions,
which was to appoint a paralegal to assist with the defense.
"One person cannot represent a person in a capital case and do it all,"
attorney David Brener told Reese. "I'm asking the court to put me in the
same position as the state."
Brener argued that because Johnston didn't have an attorney when he was
arrested, arraigned, indicted on first-degree murder charges, arraigned
again and then notified the state would be seeking death, death shouldnt
be a penalty. Brener argued that an attorney is essential during those
stages and can be used to negotiate with prosecutors.
In a 3rd motion, he asked Reese to make a Florida statute unconstitutional
because it alleges a defendant can be labeled a gang member regardless of
any connection of the gang to the crime. Brener argued that "Cash Feenz"
is a rap group, not a gang. Reese reserved ruling on the latter two
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