Florida’s New and Improved Heat of Passion Manslaughter Instructions

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...

Brener Comments on Sievers, Rogers Case

The husband of Dr. Teresa Sievers and an alleged co-conspirator will face the death penalty if convicted on first-degree murder charges. Mark Sievers and Jimmy Rodgers were indicted in May; on Wednesday the state attorney’s office announced it has filed notices of intent to seek the death penalty. Antonio Faga, Mark Sievers’ attorney, said he was disappointed by the decision. A second attorn...

Probation, restitution recommended for Lehigh Blaze

A Lehigh Acres teen pleaded no contest Wednesday to arson charges from a brush fire that burned down a home in April. Fifteen-year-old Kaiden Paolino started the blaze that prompted evacuations and destroyed a woman's home. His attorney, David Brener, said he was playing with a lighter, lit a pine cone and dropped it on the ground when it burned his hand. Click Here to Watch Video

Privilege Against Self Incrimination by David A. Brener

THE PRIVILEGE AGAINST SELF INCRIMINATION DURING THE BOOKING PROCESS The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757 (1966). The privilege exists to spare the accused from having to reveal, direct...

Prosecutorial Misconduct In The Penalty Phase by David A. Brener

PROSECUTORIAL MISCONDUCT IN THE PENALTY PHASE CLOSING ARGUMENT OF A CAPITAL CASE Florida Defender Magainze, Summer 2007 In Florida, both the state and the defense in the penalty phase of a capital trial have the right to make one closing argument. The State goes first, and if defense counsel chooses to make an argument, he or she argues last. This is true regardless of whether the defense pr...

Necessity For A Special Jury Instruction by David Brener

THE NECESSITY FOR A SPECIAL JURY INSTRUCTION ON HEAT OF PASSION MANSLAUGHTER Homicide can be divided into degrees, as in first, second, or third degree murder, or manslaughter. See Florida Standard Jury Instruction 7.1. Homicide can also be divided into lawful and unlawful killings. See section 782.04, 782.07 Florida Statutes. A killing which is justifiable or excusable is lawful, while an unla...

Limitation On The Scope Of Voir Dire by David A. Brener

In trying criminal cases in state court, the importance of jury selection cannot be overstated. Occasionally, however, defense counsel will encounter a trial judge who attempts to severely limit the scope of the voir dire examination. This may take the form of limiting questions about the defense in the case, or may include prohibitions on questioning the venire about constitutional protections an...

On Jury Nullification by David A. Brener

The following is an excerpt from an article written by United States District Court Judge Frederic Block entitled “Reflections on Guns and Jury Nullification - and Judicial Nullification”, which was recently published in the Champion Magazine, a publication of the National Association of Criminal Defense Lawyers. The province of a jury to disregard the law and engage in nullification has spawne...