When jurors asked about the possibility of parole for murder suspect Brandon Scott Ware, the judge said he couldn't predict future laws.
By CHRIS TISCH
Published October 25, 2004
LARGO - A remark by a judge overseeing the trial of murder suspect Brandon Scott Ware last week did not cause any jurors to change their vote on whether to sentence Ware to death, the jury foreman said Saturday.
Jurors voted 7-5 Friday to recommend that Ware, 21, be sentenced to die for shooting to death 88-year-old Vernon Gilbert on Nov. 26, 2002. But Ware's attorneys asked for a mistrial based on a comment Judge Brandt Downey made to the jury before the decision.
Downey declined the motion for a mistrial, but defense attorneys said they may use his comment as grounds for an appeal.
Downey made the remark after jurors sent him a written question asking if Ware would ever be eligible for parole if he were sentenced to life in prison. Before bringing the jurors into the courtroom to answer their question, Downey conferred with prosecutors and defense attorneys about how to respond.
They all agreed that Downey should refer jurors to the written law they had received, which states that people convicted of first-degree murder and sentenced to life in prison will never be eligible for parole.
But after bringing in the jury, Downey told the panel that he could not predict what kind of laws the state Legislature might pass in the future. Defense attorneys objected to the puzzling remark after the jury was returned to deliberations.
Defense attorney Michael Schwartzberg said the comment may have led jurors to believe that Ware might be released from prison someday if he were given a life sentence, possibly swaying them to sentence him to death.
But jury foreman Anthony M. Arcaro said Saturday that he didn't think the comment had an effect on the outcome. He said jurors voted 7-5 for death when they first retired to deliberate. After the remark, no one had changed their stance, he said.
"At no time did any of the 12 of us sway," he said.
Arcaro said the question about parole was asked by one of the five jurors who voted for a life sentence.
But Schwartzberg said there's no telling right now if jurors who maintained their vote for the death penalty may have changed their mind had Downey not made the remark.
"If it didn't change anything, I wonder why they asked it in the first place," he said. "Obviously, somebody thought about it enough to write it down."
Schwartzberg said he could file a motion seeking to interview jurors about their decision, though he hasn't decided whether he will do that. Even if he does, jurors have the right to refuse to discuss their decision, he said.
No other jurors could be reached for comment over the weekend. Some called by the St. Petersburg Times on Friday declined to talk about the case.
Arcaro said jurors agreed after their decision that none of them would reveal publicly what other members of the panel said during deliberations. He said jurors also agreed not to tell who voted for what sentence.
But Arcaro said he felt compelled to speak publicly so the Gilbert family would have some insight into what happened behind closed doors. He agreed that he could not say if Downey's remark had any effect on the other jurors' decision, saying it didn't affect his. He declined to say how he voted.
Prosecutors said Ware followed Gilbert and his 86-year-old wife, Helen, home after they shopped at a Publix supermarket near their Largo condo. Wielding a stick, he forced the frail couple into their home and began rummaging through their things, filling his pockets with jewelry, their car keys and a knife.
Gilbert slipped into his bedroom and retrieved a loaded handgun he kept in his dresser drawer. He shot Ware in the face and back, then returned to his bedroom to call 911.
But Ware recovered and gained control of the gun. He shot Gilbert in the head, then patted his pants down in search of a wallet, prosecutors said.
When police responded to the 911 call, they found Ware in the condo. The gun was in his hand, jewelry was in his pocket and his blood was spattered throughout the unit.
Mrs. Gilbert, who suffered from severe Alzheimer's disease, sustained a head injury during the intrusion. Officers found her outside the condo, covered in blood. She died on Mother's Day this year of natural causes.
Ware went to trial in August, but after two days of testimony, he complained that his attorney at that time, Dyril Flanagan, admitted elements of his guilt during opening statements.
Flanagan had admitted to jurors that Ware shot Gilbert but suggested it was self-defense. Flanagan said because there was overwhelming evidence against Ware, he was trying to get a jury to convict him of a lesser crime, such as second-degree murder.
Downey granted Ware a new trial, which began last week. After three days of testimony, the 12-member jury took only about two hours to convict Ware of first-degree murder and home-invasion robbery.
Prosecutors sought the death penalty against Ware for a number of reasons, including the fact that he was on probation for a felony drug charge at the time of the murder. Also, the murder occurred during the commission of another felony, a home-invasion robbery.
And third, they said Gilbert was a particularly vulnerable victim. He weighed just 113 pounds, limped from a recent broken hip and wore a leg brace.
Defense attorneys argued that Ware's life should be spared because he had a troubled childhood, a minor criminal record and was only 19 at the time of the murder. They also said Gilbert, armed with a gun, was not a vulnerable victim.
Under Florida law, a person convicted of first-degree murder can receive one of only two sentences: life in prison without the possibility of parole or the death penalty.
The same jury that convicts a suspect must make a recommendation to the judge of life or death.
Downey must give great weight to the jury's recommendation. Though he can break from their suggestion, that is relatively rare. Downey has not set a date for sentencing, though defense lawyers may present more mitigating evidence on Ware's behalf at a hearing Nov. 19.
The Gilberts' granddaughter, Michelle Rowley, said she would not mind if Downey decides to sentence Ware to life in prison instead of death. She fears if he sentences Ware to die, defense attorneys will appeal and win a new trial, which will force her to sit through a third trial.
Arcaro, the jury foreman, said the days in court last week were tough on jurors, too.
