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New trial tamer for man accused of murder

Unlike Brandon Ware's past counsel who admitted Ware's guilt, his new lawyer only says to stay vigilant.

Published October 20, 2004

LARGO - If defense attorney Michael Schwartzberg has something up his sleeve, he didn't reveal it in opening statements Tuesday morning.

Schwartzberg is defending Brandon S. Ware, who is accused of killing 88-year-old Vernon Gilbert during a home-invasion robbery in 2002.

If convicted, Ware could face the death penalty.

This is the second time Ware has gone to trial in this first-degree murder case. After two days of testimony during his first trial in August, Ware complained that his attorney, Dyril Flanagan, admitted elements of his guilt during opening statements without his authorization.

Flanagan said the evidence against Ware was so overwhelming that he was trying to get jurors to convict him of a lesser crime, such as second-degree murder. He admitted to jurors that Ware shot Gilbert, but said it was self-defense.

But Ware thought Flanagan had gone too far and won a mistrial. Schwartzberg was appointed to represent him.

During opening statements Tuesday morning, Schwartzberg simply told jurors to carefully watch and listen during the trial.

Even if Schwartzberg can spare Ware a death sentence by convincing jurors the slaying wasn't premeditated, the case could still qualify as a death penalty case because the homicide occurred during the commission of another felony - a home-invasion robbery.

In the state's opening statements, prosecutor Lydia Wardell told jurors that Ware followed Gilbert and his wife, Helen, home after they shopped at a nearby Publix in Largo on Nov. 26, 2002. He forced the elderly couple into their home, then began rummaging through their drawers, collecting knives and jewelry, Wardell said.

Vernon Gilbert, who weighed 113 pounds and limped from a recent hip surgery, went to his bedroom and retrieved a gun he kept in a dresser drawer. He confronted Ware, shooting him in the face and back.

He then dialed 911 and told a dispatcher that he had shot someone who was robbing him.

While police were en route, Ware stood up and somehow took the gun. Wardell said Ware pressed it against Gilbert's head and fired, killing him instantly.

He also hit Helen Gilbert, who suffered from Alzheimer's disease, in the head. Police found her wandering outside the apartment, her clothes streaked with Ware's blood. She died in May.

Officers found Ware wounded on the floor of the Gilberts' home, the weapon in his hand and the Gilberts' jewelry in his pocket.

Blood and DNA spread throughout the home told a story of what happened, Wardell said.

Other than the change in opening statements, lawyers on both sides of the aisle said the trial was progressing much like the first.

Testimony is expected to continue today.

[Last modified October 20, 2004, 00:17:24]

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