A murder defendant says his attorney went too far in telling jurors he was guilty. A judge agrees and grants him a new trial.
By WILLIAM R. LEVESQUE
Published August 6, 2004
LARGO - The first-degree murder case against Brandon Scott Ware is a defense lawyer's nightmare.
Evidence of Ware's guilt is so overwhelming that his own attorney admitted to jurors earlier this week that Ware broke into the victim's Largo apartment and killed him with a shot to the head.
The lawyer says it's hard to argue innocence when police found Ware with the murder weapon in his hand, robbery loot in his pockets and his DNA all over the murder scene.
But Ware says his lawyer went too far.
On Thursday, a judge declared a mistrial in Ware's case because Ware said he never authorized his attorney to admit elements of his guilt in opening statements two days before.
"I wasn't expecting him to get up there and tell them I was guilty," Ware said after standing to make an unusual statement to the judge before testimony opened Thursday. Ware says he is innocent.
Ware's lawyer, Dyril Flanagan, told jurors that Ware killed 88-year-old Vernon Gilbert in self-defense as he robbed Gilbert during a home invasion in 2002. Gilbert had shot Ware twice.
Prosecutors upset at the apparent mistake asked a judge to order that the state not pay the court-appointed Flanagan for his work on the case. They also want Flanagan barred from further court-appointed death cases. No decision has been made on the request.
Lawyers appointed to death cases earn $90 an hour.
Flanagan, a lawyer since 1984, told Pinellas-Pasco Circuit Judge Brandt Downey that he fully explained to Ware before openings what he planned to do. Flanagan said in an interview he didn't want to insult the jury's intelligence by trying to deny his client's guilt.
Flanagan said he hoped jurors would find his client guilty of a lesser crime such as second-degree murder, which doesn't require the shooting to be premeditated.
And if Ware was convicted as charged, Flanagan said he hoped the self-defense argument would convince jurors his client didn't deserve the death penalty.
"He never, ever said, "Don't do that,' " Flanagan said. "I just thought we had such an overwhelming scientific case against him."
The problem for Ware is that, even if he killed Gilbert in self-defense during a home invasion, he would be guilty of felony murder. Felony murder is a killing committed during a felony such as robbery or burglary.
A defendant guilty of felony murder can still be convicted of first-degree murder and be sentenced to death, even if the killing isn't premeditated.
Ware, 21, said Flanagan tried to get him to agree to plead guilty before trial to avoid the death penalty. Ware refused.
Flanagan said Ware, who had been shot in the face and back by Gilbert, doesn't remember anything from the robbery and killing. Ware says he is innocent.
"He doesn't remember doing it," said co-counsel John Swisher.
Jurors were dismissed and Downey said he will re-schedule the trial as soon as possible. Ware said he no longer wants Flanagan on his legal team. That's a decision up to an administrative judge later.
For Tabitha Cecere, Gilbert's granddaughter, another trial means having to hear the details of her grandfather's death again.
"We don't get anything now," she said. "We get to relive this nightmare. Ware gets away with another day in jail."
Prosecutors Bill Loughery and Lydia Wardell say Ware followed Gilbert and his wife, Helen Gilbert, home after they shopped at a nearby Publix on Nov. 26, 2002.
Prosecutors say he forced his way into their home carrying a large club. At some point, Helen Gilbert, who suffered from Alzheimer's and died in May, was struck in the head.
Her husband retrieved a .38-caliber handgun he owned, perhaps as Ware rummaged through another room, prosecutors say. He shot Ware twice and then called 911.
"I just shot a guy in here robbing us," Gilbert told a police dispatcher, giving his address. "Hurry. Hurry."
The line went dead. Police found Gilbert dead by the phone, shot once in the head by his own gun. Gilbert was found by police on the floor of the living room, weapon in hand.
"It's a do-or-die situation for Brandon Ware," Flanagan told jurors on Tuesday.
