Court Cases

Defense Attorneys Happy to Spare Lives by Sam Cook -

Note: Today’s column looks at the death penalty cases of murderers Kemar Johnston and Fred Cooper. Sunday’s column examined the case of Justin Grodin.

Fort Myers criminal defense attorney David Brener loves to talk. No debate there. The 50-year-old barrister was equal parts orator, historian and schmoozer as he coaxed a jury Feb. 19 to keep murderer Kemar Johnston off death row. Jurors listened for three hours in the penalty phase as Brener borrowed from Aristotle, Homer, Shakespeare and Franklin D. Roosevelt. After convicting Johnston, 23, on Jan. 29, jurors spared his life in the slayings of Alexis Sosa, 18, and Jeffrey Sosa, 14. Lee Circuit Judge Thomas Reese on Monday sentenced the Cape Coral man to four life sentences plus 30 years in prison. That’s as close to under the cell as you get.

Brener and Miami attorney Terry Lenamon laid the groundwork by wading through 186 potential jurors before finding a jury that wasn’t overly affected by pretrial publicity. “This is a very intelligent jury,’’ Brener said a day before it recommended life in prison for Johnston. “This jury gets it.’’ They next day, jurors were cerebral and patient as Brener played to his audience while detailing 100 mitigating factors to sway them. “I got a real good sense during the penalty phase and especially during the closing argument that I was connecting with them with the arguments I was making,’’ Brener says. Yet when is enough too much for a jury? “You know when you’re losing the jury when they start dropping their eye contact, when they stop nodding their heads,’’ Brener says. “When they start fidgeting and looking around. But sometimes you have to take that risk to make your point.’’

Brener says a jury forgives length as long as an attorney isn’t repetitive. One of Brener’s simplest mitigators was “Kemar’s a good rapper.’’ “That was to show the Cash Feenz was a rap group, not a gang and Kemar was a rapper, not a gang leader,’’ he says. “All the mitigators had a basis in the evidence itself.” Brener, who worked on Johnston’s defense for three years, knew he had a winner when jurors walked back to the box. “They all came in upbeat. Not the kind of dour demeanor when a death recommendation is handed out,’’ Brener says. “When this jury came back — and I’ve been wrong before — but my sense was that we had won.

“As a criminal defense lawyer, I can tell you that there is no feeling like that in the world.’’