Welcome back to Come Back With A Warrant podcast.I'm Brandon Denitz.And I'm Monica Schack.Before we kickstart this week's episode, this is your reminder that this podcast is not legal advice.It's real, unfiltered, and for entertainment purposes only.If you need to speak with a lawyer, call one.Or better yet, call us.Call us.So today, we're talking about all things death penalty and breaking down some cases, controversial ones obviously, and talking about the latest death penalty cases in the news these days.So, death penalty is a topic that is, like I said, very controversial and every state can choose to basically, the federal law is that the states, it's up to the states if they want to impose it or not.So, Florida's one of those states that impose it, um, and we'll be talking about the breakdown of Florida's law on the death penalty specifically.But there are some latest cases, like we, we just talked about theWe have the Charlie Kirk case.Charlie Kirk, yes.Where you have Utah is, yesterday, during the arraignment of the individual, they said that the death penalty is a potential sentence in the case.You have the case out of North Carolina where there's a young woman that was stabbed on the bus.There was already talk that the death penalty may be involved in that case.And not so, you know, recently in Florida we had the Parkland case, and in that case, that was, the death penalty was front and center in Florida again, um, and in the aftermath of that case, there was changes to the way that the death penalty can be reached in the State of Florida.Yes.And we'll talk about that as well, but this is a heavy topic, but it's so important because it is relevant and it comes up all the time, and any time there is a high-profile homicide case, the death penalty is the, one of the questions on everybody's mind, at least at the onset of the case and then during sentencing.Yeah, and then so there's different, the law qualifies basically who can get the death penalty, and so just because it's a high-profile case, it doesn't necessarily mean that that is, that case is eligible for the death penalty obviously, but because so many people don't really know how it works, people wonder, death penalty.And I see sometimes comments on, um, certain cases when they're online or whatever platform and people comment for, like, rape cases or sexual battery cases where they believe that the death penalty should be imposed on people who are considered sex offenders, and so that is something that would not make you eligible for the death penalty, and that's something that people would highly disagree with.So there is so many different factors that go into determining whether someone is eligible for the death penalty, and then it goes to a jury.So, the pro- the federal process is different than Florida's process, and I think we're gonna be focusing more on Florida's law.Correct.At least for the way that you get to the death penalty because I think that's important to explain.It is a process to get to that end result, and one of the things that starts that process is the decision from the state to seek the death penalty and their notice of intent to do so, something that they have to file in their case and something that they need to assert at the very beginning.The, just like Monica said, it's all case by case basis, and there are factors and things that make a case eligible for the death penalty, but we'll talk about the phases of the trial and really how you get there.So, if we have the beginning stage where the State Attorney's Office has decided that they are going to be seeking the death penalty, we know that the death penalty portion of sentencing is separate from the actual jury trial on the underlying charges.Certain times, there isn't even a trial on the underlying charges because there's already overwhelming evidence or some sort of agreement as to the guilt of the person and all they're focusing on is the death penalty.Right.So, it would be just like a regular criminal trial.Right.Phase one, which is, that's what it's called, phase one and phase two, and during phase one, it's like any other criminal trial.Is this person guilty beyond a reasonable doubt?Has the state proven beyond a reasonable doubt that this person is guilty?And then that same jury would then go into phase two and hear the reasons why, what the government would then present its case on the reasons why this person should get the death penalty, and that is based on statutory factors listed and they're called aggravated factors, and that would be weighed against the mitigating factors which are also statutory, and that's presented by the defense, and there'sdifferent factors for each jurisdiction, but I pulled up some for Florida just so people can have an idea of what would be considered an aggravating circumstance, and that's something that you only need one of.You only need one aggravating circumstance to be qualified or considered eligible for the death penalty.And like you said, you, the state or the government has to file a notice of intent for death penalty, and they have to do that in the beginning of the case, but if they don't do it within a certain timeframe, they waive it.Like, they cannot seek the death penalty.So, in order for eligibility to be found, there needs to be one aggravating circumstance and the jury needs to be unanimous on finding that aggravating circumstance, and that's, that's for them to even consider if this person should get the death penalty when they're weighing the evidence at phase 2 of trial.And so, some aggravating factors are prior conviction for a felony while under a sentence of imprisonment or on probation or community control, previously convicted of another capital felonyThe defendant knowingly created a great risk of death to many people, so that's like s- school shootings or mass shootings.When the capital felony was committed during or in flight after committing and then it's a bunch of crimes, like a robbery, a sexual battery, aggravated child abuse.The defendant committed the capital felony for purposes of avoiding or preventing lawful arrest.And so there is so many listed.There's 15.I'm not gonna go through every single one but they are listed in the statute.And so theyBasically, the- the government would present evidence to support one or many of these circumstances and then it goes to the jury and then there's mitigating circumstances that the defense would present and those include no significant criminal history, they were under the influence or extreme mental disturbance, the defendant's conduct consentSorry.The- the victim was participant in the defendant's conduct or consented to the act, there was an a- the defendant was an accomplice.So there's so many different factors or circumstances that can be presented and the jury then decides should this person get the death penalty.And you have a jury that's already sat through the guilt phase, so they have seen all of the underlying evidence to the crime.So they know how heinous it was, they know how, you know, what the proof was, uh, that the state proved and they have already concluded that this person is guilty.So now they are making the decision of what happens next.The jury used to have to come to this decision unanimously, and that means that all of them have to agree that this aggravating factor does exist and the person should be sentenced to death.What happened in Florida after the Parkland case where the defendant wasalready had- had pled guilty to the murders, i- it was notThat was not what the question was.The question became just the death penalty, if I'm not mistaken, and in that case there was not a unanimous jury to find that this person should be sentenced to death.The aftermath of that was a change in the Florida legislature to now have 8 8.out of the 12 jurors- Yeah.need to come to the decision that the death penalty is the appropriate answer.So that's a big difference.Any time you're dealing with a criminal case and you don't have a unanimous verdict, that's- that's pretty strange, makes a s- makes significant difference and it would have changed the outcome of that case.Nicholas Cruz would have been sentenced to death if that was the way that things were.Yeah because you, before, only needed one holdout and, like, one person to say, "No, this person should get life," and that was- that was the thing and I- I think it comes down to the burden of proof.Like, if you think about it, beyond a reasonable doubt is the standard for both of them and so if one person believes that there is reasonable doubt, it's the same idea to me.I'm justFor me, I'm, like, trying to understand, like, how is it that if w- well, it would be a hung jury in a- in a regular trial but when it comes to death penalty law, it was always just one person.Now it's requiring 4 people to say, you know, life, not just one.Well, up to.Up to, yeah.Up to 4 people can say life- And it wouldn't matter.and- and it would not matter- Right.as long as youBut the bottom line is you have a situation where, you know, what is the point of the death penalty if not for certain cases like that one, which this is part of the argument, and for one person to say no when, you know, everybody else thinks that it's the other way, that is where the frustration was.That is why the change was made to the- to thein the legislature.Does that make it right?Does that make it wrong?I mean, that's notI'm not one to say.I mean, this is not a conversation about our personal views on the death penalty.The conversation is more how do you get there and letting people know, you know, Florida has changed that path and the death penalty itself is not going anywhere.It's constantly floated and it comes up in so many different cases that we hear about and deal with.The other one that I was just thinking about was the college kids that were killed in Idaho.The death penalty in that case, it was off the table because of the agreement between the government and the defense that he plead guilty and seek, you knowThere'd be jail for the rest of his life.Yeah.But a lot of people were upset about that.The families were not all in agreement with that.And that was something that the government still went ahead and did and decided was the best thing to not make everybody relive through that crime because you have to think about something.The victims of the homicides themselves obviously are not available for whatever the trial is, but their relatives, their next of kin are available and in order to get to the death penalty, you have to put those people through a lot.And that is reliving all of what happened in detail in one trial and then a second trial where you get to hear how heinous all of the things were that happened again.To make people live through that is a consideration that prosecutors, at least in that case, made before they decided to take the death penalty off the table.Not only that, it's expensive for the government to seek the death penalty over life, to not only just in terms of what you're saying with the victims reliving through it, phase one, phase 2, they also have appellate courts.Like, I have never heard of anybody being sentenced to death and just like not appealing it.And that is a long process.It's expensive for the government to fight it, so no brainer for them to win.And people oftentimes, they seek every sort of remedy to save their lives if they can.And because of public defense and, you know, being able to have an attorney in these situations, many people do use that resource and file their appeals through the P.D.'s office.So that's a government expense on both sides.It's also more expensive to sentence someone to death over life imprisonment.That's because of the lengthy appeals and being on death row for X amount of years and just the different transitions versus being sentenced to prison forever.There's d- different expenses associated with both, and it ends up being more expensive for the death cause.Also, you have to pay for that person to be sentenced to death and the resources for that.Well, it costs a fortune to keep somebody alive on death row.Exactly.It's more expensive- Than inthan any part of the prison, and it is generally something that they're gonna be there for, I think we read, 15 to 20 years on average before they're actually sentenced to death.So, you know, that's a huge argument that people make against the death penalty, is just the cost of the death penalty, before you get to the morality issues.Yeah.And then, you know, you have to wait for the gov- governor to sign the w- death warrant.You know, there have been, I think there wasWe started off 2025 in the state of Florida, we had, uh, just under 300 people on death row.And I would say at least one per month has been executed since we started 2025.And I think the first one started in April, um, or March, I believe.So we were starting off pretty early and prior to that, people hadn't been getting executed in a general, like gen- like on a general regular basis.And I think a part of the reason why is because now that it's happening, I think it's to save the state resources because it's expensive to have these people alive on death row.And so it's really sad to say that, like, now that, like, I'm, like, saying it out loud, but it's just the reality of what we're talking about.You know, we were talking about the victims reliving through everything and talking about Marsy's Law in the state of Florida where they do, even if the, the person passed away, their next of kin is considered the victim in the case, and they would have basically receiving reports from the government about how the appeal is going and how everything, you know, when the, if it's, if it's scheduled for a hearing or whatever it is.And so they get, they have to go through that again, through that process.So I don't know if Idaho, I think we were saying, was a state, I don't, I don't know if they have something equivalent to Marsy's Law, but I wonder if they do, because they, if the victims were upset about it, then they probably weren't consulted when it came to the plea agreement.There were at least some families that were vocally upset about it in that, in that case.And then there were others that were, I think, on board with not having to relive everything and putting it to bed with, uh, a life in prison.It's an awful situation and I think the question that's gonna come up right now in Utah is whether or not prosecutors try to offer life in prison instead of the death penalty.But I think there's no chance that they- I agree.come off of it.Uh- I don't think so.Based on how high profile the case is, I don't think there's a chance that they, they do that.And I think Utah will consult the next of kin, and I would never speak for the next of kin in a situation like that, but I, IWhether they are going to or not, I think the state of Utah is gonna be very strong on this and say, "No, we're moving forward with the death penalty."I don't think that'sThere's any way around that.I don't think so either.That'sYeah.I would beI mean, it's, it's also a political agenda at the same time, you know, to seek the death penalty, I would say.Like, it is a highly political topic and because I don'tI, I think Charlie Kirk is considered a controversial person in politics, so that's, you know, even another reason people would feel, people in high positions would feel pressured by the government to, especially under this current administration, todo something that would protect their party in a way.Yeah.I think this is, that's a very specific and special case and a special scenario that it's not like the other typical death penalty cases- Yeah.Yes.that we see or deal with.And even when you look at something as high profile as what Parkland was, there's, um, there was still a big difference.Huge.Um, but I could say, you know, the jury makeup where the Parkland, where Parkland happened in Broward County, that jury makeup is gonna be substantially different to a jury out in Utah.And ultimately, if this question is left up to the people to decide, which it should be left up to a jury to make that decision, and that's why it always will be, let them make the, make the call.Maybe the government is, because of how high profile it is, they go forward with seeking the death penalty and then they do the thing that they're supposed to do in this government and leave it up to the people to make the decision.Yeah, but I know, I think I remember there was a'Cause death penalty laws are, like, always changing.Like we just said- Mm-hmm.it just changed, but there used to beI don't know if thisI don't think this still isI don't think this is a thing anymore, but the judge could override the jury's decision and say life if they chose death.In?In Florida, that used to be the law, I think.Well, that'sIt used to be.I don't know if it still is, but it definitely was a thing at 1 point.So theyUtah might have something like that.I doubt it would be exercised in that situation, but I'm just saying 'cause you're saying, "I think it should-"But I'm just saying 'cause you're like, "Oh, it definitely should be up to the people."I'm, I'm thinking it couldJury could say death and judge could say life in certain jurisdictions, and I'm sure that would- Yeah, I thinkAnd with a case that's so high profile- It wouldn't happen.there's no way a judge would- Yeah.make their own personal intervention.No.And then that would beThat judge would be labeled as the judge that let Kirk's, uh, shooter live forever, and that would be definitely pro-He probably- That'd be the end of his career.would have someYeah, career.Exactly, yeah.That would be it, which is crazy if you think about it, but everything- But, you know, you, you look and you see, like, whatYou know, you talk about aggravators and you talk about mitigators and even in that case, you know, the aggravators are so obvious and then the casesIn Parkland, the aggravators were so obvious, but you had somebody that was in the, in the jury pool that didn't feel, uh, that death was appropriate and what that comes down to is that the defense attorneys were able to present mitigation.And mitigation is basically showing either the government or the jury or whomever all of the good things about your client, the defendant, and the reasons why the sentence should be better for them, whether that's, you know, in our world when we deal with that, and I, I deal with miti-We deal with mitigation all the time.Yeah.It's presenting to our clients, pre- presenting to the government why our clients did something and what in their life they need to know about.Yeah.And that's the good and the bad.The good of, you know, they have a good job, they, you know, areThey, uh, go to school or they have a family that they care for, and then all of the things about them, whether it's their mental health, whether it's- Physical health.traumas that they've had, physical health, right.We're giving all of that information over in order to get the best possible offer from the state because we want them to consider our client.And they consider the human side of things.Mm-hmm.And that is, w- we're dealing with the same thing with the death penalty.Job of the defense in the death penalty proceeding is to put on as much mitigating information and evidence as possible.Mm-hmm.Make them look like they came from a place that they were a victim of their own circumstance and that's why they wound up doing this.Yeah.It's not really excusing behavior, it's more of an explanation.Just like you said, mitigatingMitigation in general is humanizing our clients to the government because the government, whether they have 200, 300 cases, whoever the attorney is on the case, they have a bunch of files that say that this person did Y and Z and it was this heinous act.And I think as you get higher up in handling certain high profile cases, you probably don't have 200, 300 cases, but it's something you see all the time.And so what differentiates this person from all the other people who may be in the same situation or accused of the same thing and showing them why it ledNot, not saying this is, you know, somebody died, no big deal.No.But it's showing them that this person deserves a second chance, or this person deserves some sort of mercy or grace here and explaining why.And so when it comes to mitigating in death cases, oftentimes people get into their backgrounds and a lot of times it's like mental health issues, substance abuse issues with their families or their parents, especially in situations like Stone.I know that Nicholas Cruz's background or his, like, upbringing was not the best, and that was discussed heavily in the de- death phase of the trial.And so that's something that comes up a lot and it's notAnd it's obviously, you know, we said like if somebody's under the influence and all those things while they're, while they're carrying out the act or under some sort of mental or emotional disturbance, which I think was also supported in that case, because I think he did have some sort of mental health issues andEnough that they were able to use it for the mitigation.Right.There was stuff there that was enough.Right.It wasn't like anything overwhelming that would have been dispositive for the case, but it wasThere was some mental health.They, they were able to put together mental health mitigation, um, and show, you know, look how sad his upbringing was.Yeah.That was theirThat was what they had, so that's what they went with.Right.And one juror bought it.Well more than one.And felt bad- More than one.Well at least- I think.Well, it doesn't matter.At least one.At least one bought it.Yeah.Because th- it was the standard at that point was unanimous.So, you know, that's a, that's a tough sell.You know, I've been in positions before where you're explaining horrible behavior by saying, you know, the way that they were brought up or the traumas that they suffered made them who they are and that's part of the reason they did this.But in the back of my mind and in the back of every defense attorney's mind, that does not absolve them of the actual thing that they did that's wrong.Yeah.And there are always, you know, those consequences.But our job when the evidence is so clear against our client is we need to paint them in the best light, humanize them, and try to get them something better than getting the book thrown at them for whatever the offense is- Yeah.that they did on that one day of their life.Yeah.And, like, life in prison is still a punishment.Like, people are acting like people get off completely when they talk about the death penalty.Like, I'm like, I don't know.Whatever.You said we're not gonna talk about our opinions.I said that, but we abso- I mean, we can.There's not really a reasonI justIt's something that I care deeply about.I did the death penalty clinic when I was in law school, and so I worked on real death penalty appeals and that gave me a lot of insight on the clients and the cases we had.And I took Death Penalty Law and I was just really interested in it in law school, so studied it a little bit more than maybe other people who weren't interested in it, and it just made me grow, like, a passion for it that I'm likeYou know, IYou have to become, like, death qualified or s- Right.to actually try a death penalty case, which I h- have not done.But I just like to follow them and, and watch them and, you know, we've had a few in Palm Beach County where I've watched the death phase of, of trials and it's, it's a he- it's heavy.Very heavy from both sides, whether somebody gets imposed the death penalty or not.Just watching and experiencing from both sides what is being presented in court, I don't know, it's just, it's, it's just, it's just very eerie in the room and it's, it's sad and I feel for the alleged victims or the victims actually and, and the defendant and what they're going through.And so it's justThat's why I'm like, oh my gosh, you know?But there's also, like, the logical argument for it where, you know, imposing the death penalty is something that a lot of people argue is against the 8th Amendment because it's a violation ofYou know, it's a cruel and unusual punishment.And the reason why people argue that is because they say that they administer, at least with le- lethal injection, which is what they do in Florida, a one-dose forLike, one size fits all really.But that's not how it should be, and so if you are a little bit heavier or you're a little bit too tall for, like, what the dose is supposed to be for that average person that they calculated it for, you will feelYou will experience, you know, actual pain and, like, it will prolong your actual death because you're not getting the dose you need to actually kill you.So people argue that it is cruel and unusual compared to what it's a- like, for the arguments who's against this is safe and nobody's going to be suffering as a result of the lethal injection or whatever the argument is.And also it's very expensive to actually administer the lethal injection.It's not a cheap thing.And so there's, like, different arguments whereAnd like we said, it's more expensive to do death than life and that's just gathered, you know, statistics.But yeah.That's why I'm likeI careTh- I do care about this a lot, you know?IAnd I, I understand, and I understand where you're, where you're coming from, um, and your position.And I, I think there should be some degree of suffering if you are putting somebody to death.And the wait alone is a ton of suffering.for some, and definitely for the victims and the, the families and everything.All of that extra time and waiting and appeals and everything is not great.But if you are putting somebody to death, it is not- Yeah.There's nothing about that that is Kumbaya.About- So, the idea that we are so concerned with the feelings and the, like, of the person that we are putting to death, like, we have already decided they have done something heinous and that's why they are there.My concern is a l- I, I don't advocate for anybody to be tortured, but my concern is not about how well they're feeling at the very end of, of that time, and if that's such the case, there are a lot faster ways that we can do it, just people aren't going to be as, you know, ready to, to do that.Whether, you know, in Utah they have the, a firing squad.We're Florida, we absolutely could do something like that here if we wanted to, but they have chosen that the lethal injection is the most humane way of doing it, so that's what they do.But you talked about, you hit on something earlier in the show, and I've mentioned this to you, but the, the death penalty, I think there's a lot of people out there that see where it could be expanded to for certain charges, for certain crimes, and I am someone that thinks there are definitely certain other crimes out there that I've heard, and things that I know that have been committed just through the work that I've done, that are far more heinous than some of the murdersthat land somebody on death row.Yeah.Whether that's manufacturing in child pornography, which is cases that I won't even take, or certain types of offenses against children or sexual-based offenses, I can understand and in ways support arguments for that to get the death penalty, because those people, those victims are not just the next of kin.Those victims will- Have to live through it.have to live with that forever.It's, in my opinion, just as bad.So, I think that there are areas where it could be expanded, not a, you know, I don't think it's appropriate in every case, but I think if we have a system like this where there are aggregators, and if you meet those aggregators then you meet the criteria, and a jury finds that, then fine.Yeah.I think it's- And that's that.I think it could be applied so subjectively and that's also, like, where you risk, like, certain people getting the death penalty over others in terms of demographics.But speaking on that specifically, Florida passed a law this year where if you are not a US citizen and you are charged with a capital offense, and that includes sex offi- with the victim being under the age of 12, you could be, they could seek the death penalty against you.And so, that is something that goes against Supreme Court precedent and case law that says that it is only for people who have been charged with a first-degree murder homicide.Like, you can't even get it for, like, a manslaughter.You know?So, it's, it's, it's first-degree murder plus, that's what it's been set for, and so Florida's latest law this year is kind of in contradiction with that.But technically it's not considered illegal until it gets in front of the Florida Supreme Court and it's challenged and someone says, you know, "This is unconstitutional," which I think will eventually happen, and s- someone who is in that position would have to first be sentenced to death- Right, they would have to get that far first before it even becomes a right issue.Exactly.Which will be years from now because, like we said, it takes so much time just to even get to phase one and then later to phase two, and then, you know, appeals start and then u- that, you have to go through so many courts before even getting there.So, it's just, it's just a, like, I guess, a real-life example of kind of what we're talking about.It's like, who should get the death penalty, and that question will come before the Florida Supreme Court, and if they say, "This is something that we think is legal and should be legal," then the US Supreme Court, because that is where the precedent comes from, would then analyze, "Okay, are we gonna expand it?"and then that- OrAnd then that becomes- The question that we're talking about.the question that we're getting.Exactly right.And it's- And we get an answer to that question of- Yeah.whether or not there are places that it could be expanded to that are appropriate.But the problem, I think, with this law- Orand are constitutional.Right, and I think the problem with this law is that it's, it's a s- it's specific to a group of individuals, non-US citizens.Right.So, you know, there is obviously the issue where I just said it's first-degree murder plus, and this is not first-degree murder plus.That's the issue.But then there's the other issue where it's like, can you do this for a specific group of people and not the rest of America who's maybe n- committed similar crimes and been convicted of it and they're not even considering death or dealing with a phase 2 trial!So, there's a lot of, like, late news coming out on death penalty law, and like you said, like, it's, it's, we, it's, uh, constantly changing and it could possibly be expanded.So there's just a lot of different things to keep an eye out, especially in current news.Yeah, there's, this is a, a time where there's multiple hot cases where the death penalty is on the table, uh, and being discussed.Yeah, and, you know, we're talking about it now.We don't fully agree on like what, how it should go, and that, we're not the only 2 in the country that feel like- No.You know what I mean?There's so many different opinions and ways to look at it, and then case law is being analyzed by judges who are appointed by certain administrations and then we see where, we see where we go.Let 'em judge.Yeah, and do their thing.Let 'em judge.So I think the, the bottom line is that the death penalty itself is far from automatic in any case.Even where we think that it's most appropriate or most inappropriate, it's never a guarantee.And even though Florida has now changed the way that you get to the death penalty by reducing the number of jurors that are required in phase 2 to say death, debate is gonna go on- Yeah.whether or not it's appropriate to even have the death penalty or not is gonna come down to the morality and, you know, saving lives and, as you brought it up, the pain of the, the pain threshold of the individual- Yeah.that's being murdered.Which is considered.Be it.Otherwise we would have a firing squad in Florida.Right.You know?Which it, the humanity of putting, which I think is a little bit ridiculous at that point because it's like, you know, we're so worried about their feelings, we've already decided at the end that, we've decided that we're putting them to death but we areBut, you know, we wanna make sure we do it in a humane way.Yeah.It's like, this is where we're gonna s- draw the line.I gotcha.Uh, yeah, well, I mean, I'm not advocating for, like, public execution- That's why we should get rid of this!But- Bring back, bring back, uh, there was a famous, I think it was George Carlin talked about public executions and putting them on pay-per-view and things.Listen, Salem witch trials, they were not too long ago.Yes, they were.Like, They were very long ago.The Salem witch trials.Oh my God.You're getting spooky, it's not even October.Yes, 'tis the season!It's almost.Me with my pumpkin spice.Well, when this comes out, it is probably gonna be October- Yeah.So happy spooky season, everyone.Yes!So if you liked listening to our show, make sure you like, comment, and subscribe to our newsletter, follow our podcast.We are on all platforms, come back with a po-, Come Back with a Warrant dot pod, and if you didn't like listening to usCome back with a warrant.