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Second jury to decide if killer will be executed

Scott Ware gets a chance at a life sentence this week in the murder of an 88-year-old man.

By CHRIS TISCH
Published March 23, 2005

LARGO - Is there much more that could go wrong in the case of the State of Florida vs. Brandon Scott Ware?

Ware's first murder trial was called off after his lawyer admitted his guilt in opening statements. After Ware was found guilty of murder, his lawyer died of a heart attack.

One of the attorneys prosecuting him was charged with DUI. And a jury's recommendation that Ware be sent to death row was thrown out because of a remark the judge made to the jury.

Ware will get a second chance at life this week when he heads back to court. Though his guilty verdict stands, a second jury was empaneled Tuesday to determine if Ware should die for his crimes.

Testimony is expected to wrap up today.

Ware was convicted of murder and home-invasion robbery last year in the 2002 shooting of Vernon Gilbert, 88. Prosecutors said Ware followed Gilbert and his wife, Helen, 86, home from a Publix near their Largo condo on Nov. 26, 2002.

Armed with a stick, he forced the couple inside and began rummaging through their belongings. Mr. Gilbert grabbed a loaded gun out of his dresser drawer and shot Ware in the face and back. But Ware took the gun away and shot Gilbert in the head, killing him instantly.

Police arrived at the condo to find Ware lying on the floor with the gun in his hand and the couple's jewelry in his pockets.

Mrs. Gilbert, who had Alzheimer's, suffered a head injury in the attack. She died last year of natural causes.

Prosecutors said the case qualified for the death penalty for a number of reasons, including the fact that Mr. 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 Ware deserved a life sentence instead. His family members testified that Ware, who was 19 at the time of the shooting, had a troubled childhood.

But jurors voted 7-5 to recommend that Pinellas-Pasco Judge Brandt Downey sentence Ware to death.

Downey was forced to toss out the jury's recommendation based on defense objections to a comment he made to the jury.

Jurors had sent Downey a note asking if a defendant sentenced to life would ever be eligible for parole. Under Florida law, the answer is no.

But when jurors were brought in to hear the answer, Downey said that he couldn't predict what laws the state legislature would pass in years to come.

Defense attorneys said the remark may have led jurors to believe that Ware could someday be released on parole, which could have swayed them to vote for the death penalty.

Downey agreed and ordered a new penalty phase. The decision whether to send Ware to death row still ultimately belongs to Downey, but he must give the new jury's recommendation great weight.

Chris Tisch can be reached at 892-2359 or tisch@sptimes.com

[Last modified March 23, 2005, 00:55:18]