A murder defendant’s efforts to get two juries was denied Monday in a hearing. Kemar Johnston, a reported member of the Cash Feenz, is charged with two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon in the beating, torture, shooting and burning of Alexis Sosa, 18, and his nephew Jeffrey Sosa, 14, in October 2006 in Cape Coral.
Johnston faces the death penalty if convicted of first-degree murder. In court Monday, his attorney, David Brener, asked Lee Circuit Judge Thomas Reese to give Johnston two juries – one to determine his guilt or innocence and one to determine whether he should be put to death if he is convicted. In a typical death penalty case, if a jury finds a defendant guilty, they return in a few weeks for a hearing where attorneys argue whether the jury should recommend to the judge a sentence of life or death based on what are called aggravating and mitigating factors. Aggravating factors are presented by the state, and may include the defendant’s prior record and facts about the crime in support of a death sentence.
Mitigators are factors presented by the defense and may include a defendant’s mental state, family history and other factors that could spare the defendant’s life. Ultimately, the sentence is up to the judge, but the jury’s recommendation is given significant weight. Although Florida state law allows for one jury to determine a defendant’s guilt and a recommendation of life or death, if convicted of first-degree murder, Brener argued for a second jury. He cited research from the Capital Jury Project, a multistate research project that looks at the decision-making of capital jurors. Brener said research shows jurors make up their mind about sentencing defendants to death before hearing the mitigating factors.
Reese denied the motion.