As Shawn Rogers sat in court at the defense counsel table last week to face the accusation he murdered his Santa Rosa Correctional Institution cellmate, he occasionally leaned over to attorney Kenneth Brooks to ask a question.
Brooks isn't technically Rogers' attorney — Rogers is representing himself — but he is on standby in case there's a point during the trial's scheduled three weeks that Rogers decides he doesn't want to be his own attorney any longer. Brooks would then jump in as counsel and keep going.
It's a unique situation because defendants rarely represent themselves, and they seldom do so in a case where the state has sought the death penalty, according to Assistant State Attorney John Molchan.
Both the prosecution and defense treat death penalty cases differently than other murder cases.
Florida law outlines a strict set of standards a defense attorney must meet to try a death penalty case. According to the statute, the attorney must have been the lead in at least nine jury trials dealing with serious and complex cases and have been co-counsel on at least two death penalty trials.
Molchan said the majority of defense attorneys in the circuit who are qualified work with either the public defender's office or the Regional Conflict Counsel. It's not often that private attorneys have the time or money to take on such taxing cases, he said.
"A death penalty case is expensive on their business," he said. "It has a huge impact on their practice not only from the discovery standpoint and the trial standpoint, but also in post-conviction. The attorneys get called back into court to defend their actions later on, and you have to go through a lot of steps to get paid in those cases."
Defense attorney Michelle Hendrix is one of the few private attorneys who has gone through the steps to certify.
She said, for her, the process took several years because state law says the attorney must try a certain number of death cases to completion. It's almost a Catch-22, because if the attorney is successful, they often reach an agreement with the state so the case doesn't go to trial. But they need to complete a trial to certify for future cases.
"Not very many attorneys are willing to (certify), but these people have a right to be represented by a qualified attorney," she said.
Hendrix said death penalty cases can be very stressful, and often are lengthy. She's been on the list as a death penalty certified attorney in the region for 14 years now and said she currently has three pending death penalty cases. She was ruled out as Rogers' potential standby counsel due to a conflict of interest since she is representing one of the prison guards in an ongoing civil suit stemming from the same alleged murder.
And she wasn't not the only one. Conflicts of interest arose in both the Regional Conflict Counsel and from the Public Defender's Office, according to court records, so Rogers was left without a qualified attorney.
Rogers also demanded a speedy trial, which means the court needed to get the matter to trial within 60 days.
A number of motions were filed in the weeks leading up to the July 31 trial to allow Brooks to serve as standby counsel, even though he isn't certified to try a death penalty case because it's also mandated by law that a defendant needs an attorney available. Rogers has previously been determined indigent, so Brooks will be compensated by the state for his time, Molchan said.
Brooks said last week that his case history includes a number of murder trials and other serious cases, so while he's not death penalty certified, he does have experience in complex cases.
Molchan said the strict criteria to try death penalty cases stems from an issue years ago when defendants would claim ineffective counsel on appeal.
Molchan is one of at least five members of the prosecution's death penalty committee, usually made up of himself, the trial attorney, the state's supervisor in that county, the chief assistant and investigators.
Between them, they review every first-degree murder case across the court's circuit and decide whether the state will seek the death penalty. The prosecution needs to declare their intent early, Molchan said, because of all the factors that come into play once the case is deemed a death penalty case such as finding qualified attorneys.
"We look for the worst of the worst," he said. "Death penalty cases are more than just a murder case. To come into that realm, they have to have certain aggravating factors."
Currently Rogers' case is still in the guilt phase, but if the jury convicts him, the case will move to the penalty phase where that same jury would decide if he should be sentenced to death. New Florida law mandates that juries unanimously recommend death, as opposed to the previous 10-2 split requirement. If convicted, Molchan said Rogers will be one of the first cases to fall under the new law.
"The new law is certainly something we have to take into consideration," he said. "It's not just a majority, it's unanimity, that's a key in the idea that death is different and it's for the worst of the worst."
Rogers' case continues this week in Santa Rosa County court.
Source:
Pensacola News Journal, Emma Kennedy, August 7, 2017
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