Stephen G. Cobb - Florida Criminal Defense Lawyer

Florida Rule Of Criminal Procedure 3.112 And Death Penalty Cases


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

When I began practicing law, back when the dinosaurs were still walking the earth, I had my first death penalty case there was no rule of criminal procedure such as 3.112, which mandated the use of an actual team. I was it. Frankly, I was lucky, because I did not know what I did not know. For years, I handled death penalty cases by myself. Then, I was appointed to a minor quadruple homicide shotgun slaying, obviously not a minor case in reality, and by then, rule 3.112 had been promulgated by the Florida Bar, and approved by the Supreme Court. This rule states that whenever there is a death penalty case, a lawyer has to meet certain levels of qualifications that previously were not required. In addition, there has to be a legal team, a minimum of two people.

This turned out to be so much more affective that I began using teams across the board. As you know, teams stand for together everyone achieves more. In addition, like the handling of a criminal case, there are exactly two ways to handle a legal team. The correct, and every wrong way possible. The correct way is to have lead counsel determine which lawyers based upon their particular skill set, do which particular task in a given case. The wrong way to do it is found frequently in large firms. The way large firms operate is very simple. Who have we got available to go to this particular motion hearing on such and such a date? Then whatever warm body is available is stuck in court.

That is not how you do a team affectively. When you have a major felony case in Okaloosa County, the use of a team is critically important. For many years, I have cultivated a reputation of being reasonable on the front end of the case, and an absolute pain in the rear end if we go to trial. My philosophy is very simple. If a case has to go to a jury trial, it should take no less than five days. After all, pain and pleasure are very basic to human motivation, including the motivation of a prosecutor to make a more favorable plea offer. Consider this. It is not uncommon for the prosecutors to show up on a Monday for jury selection with the hope that they will start picking the jury by eight o’clock, and finish the jury long before 11:30, so that preliminary instructions to the jury can be given, and the jury can be given a quick lunch.

Trial will then begin around 1:00, or 1:30 with the goal being to conclude the trial by 3 PM, and hopefully if they are lucky, they will have a verdict, preferably conviction, before 5 o’clock, and everybody can go home. I have a completely different theory. First, jury selection should take one to two days, because frankly, you cannot do an effective job with a quick jury selection process. Jury selection is the science as much as it is an art. As I gain more experience as the years go by, I think that jury selection is increasingly a science requiring very specific detailed questions with very specific attention to detail required.

Secondly, trial should take a long time. It should not run through rapidly. When a case is run through rapidly, the chances of conviction increase exponentially. The longer a trial last, the more likely that there is reasonable doubt to be found. The rule is this. The prosecution has to prove the case beyond and to the exclusion of every reasonable doubt. The more a witness is questioned on what they observed, their motives, and what their biases are including biases that are unconscious, the more likely it is that the jury is going to find favorably for the defendant. After all, nobody wants to hear this, but most jurors walk into a courtroom inclined to convict. It takes a while for their logical brain to override their emotional brain. This is critically important.

Finally, there is one other aspect that must be considered. No prosecutor wants a five-day jury trial. A five-day jury trial, when a prosecutor has budgeted a day and a half, two days max for a particular case, is a nightmare. Remember, they have cases coming out of their ear, not nearly as bad as the public defender’s office, but they still have a very high caseload. Again, we find that pain and pleasure can work to your advantage if it is used correctly as well as producing a greater likelihood of a favorable verdict. Finally, it is important to remember that when it comes to pain and pleasure, a prosecutor who has gone through a painful five-day jury trial is going to remember that in the future.

This is one of the reasons I try to avoid pointless cord as much as possible. What is pointless cord? Pointless cord is where a lawyer drivers for an hour, especially if you are coming through Destin traffic in the summer, then it can be an hour-and-a-half, sits in the courtroom for an hour or more, speaks for fifteen seconds, accomplishes absolutely nothing useful, and you and your lawyer walk out of the door with a new court date. On my definition, that is a textbook example of pointless cord. A series of legal pleadings and other tactics can be used to keep you out of court as much as possible, and I use them routinely to keep myself out of court.

I want to go to court when something important is going to happen, and I define important as something that is beneficial to my client. I wanted to always remain so that when I go to court, the prosecution is thinking, “Oh God, not him. Can’t he just go on the beach or spend a few weeks in Canada taking his language classes?” When they see me in court, I want the bottom of their stomachs to fall out, not for me, but for you.

Recognizing Lead Counsel’s Limits And Pitfalls Of Ego

The client was very insistent that lead counsel do the bond hearing. Lead counsel had explained repeatedly that co-counsel on the case was better suited for the bond hearing. Nevertheless, after insistence from the client, lead counsel did the bond hearing. The bond was tripled. When you have a legal team, it is very important to listen to your legal team’s advice. You would be shocked at how many people will hire a lawyer who properly assembles a legal team to represent them, and then promptly does not do what is expected of them. Use Coping With Stress During Criminal Prosecution, provide timely fact-pattern and discovery review report, and follow the advice that is given.

When a lawyer puts their ego in front of their client that is a real problem, when a client puts their ego in front of a wise decision that is an even bigger problem. Do not be like the guy who turned four years of probation into thirty-five years in prison. If that same case had been handled in Miami, all the way through Florida, up through Pensacola, there would have been a completely different outcome. So when it comes to Okaloosa County criminal defense, surprise equals bad most of the time. Follow your lawyer’s advice, and you will have the best possible outcome.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Florida Rules Of Criminal Procedure, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

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