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Jury deliberating in penalty phase of Johnston case

By Staff | Feb 19, 2010

Closing arguments were heard today in the penalty phase of the double murder trial against Kemar Johnston.
Johnston, 23, faces life in prison without parole or death in connection to the October 2006 torture and slaying of Alexis Sosa, 18, and his 14-year-old nephew, Jeffrey Sosa. A jury found him guilty Jan. 30 on two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon.
The penalty phase began Tuesday before the same 12-member jury as Assistant State Attorney Bob Lee and defense attorney David A. Brener outlined the basis for leaning one way or the other in recommending a sentence to the judge. The jury spent the next few days listening to both sides build a case supporting life imprisonment or death.
The state and defense wrapped up their cases this afternoon with closing statements at the Lee County Justice Center in Fort Myers. The state rested at about 10:30 a.m. and the defense followed, resting its case at about 3 p.m. The jurors are now deliberating.
During his closing statement, Lee asked the jury to examine the nature of the crime and the character, background and life of Johnston. He said they must decide whether there are sufficient aggravating circumstances to justify the death penalty, then decide if the mitigating circumstances outweigh the aggravating circumstances.
“It’s a question of the weight that you give to the aggravating circumstances and the mitigating circumstances,” Lee said. “With many of these mitigators, they should be given very little weight.”
He reiterated that the jury has an opportunity to render both mercy and justice.
“It was his choices, his decisions, and at some point this man must learn that there are consequences to a person’s actions; consequences to heinous, atrocious and cruel actions,” Lee said. “Sadly those actions have ripple effects that went beyond Alexis and Jeffrey Sosa. Those consequences have to be answered.”
Brener argued in his closing statement that the evidence does not support the aggravating circumstances and the state did not prove the aggravators beyond a reasonable doubt. He asked the jury to consider the mitigating factors of Johnston’s character and background, along with his impairment, his brain damage and the peer pressure present on the night of the murders.
“Some mitigators are more weighty than others … one mitigator can outweigh all the aggravators,” Brener said. “This is a highly, highly mitigated case.”
He told the jury to save the death penalty for the worst aggravated cases with the least mitigating circumstances. Brener also noted that the jurors are not compelled or required to recommend the death penalty, even if they find that the aggravating circumstances are enough to recommend death.
“Life without parole is no picnic. It’s a huge consequence,” he said.
Brener said life imprisonment is an appropriate sentence because it protects society — the only way Johnston will ever leave prison “is in a pine box” — it severely punishes the defendant, the law accepts and recognizes a mandatory sentence of life, and the sentence satisfies the principals of justice.
“You’re here because of your ability to give life in an appropriate case, and I submit to you that this is an appropriate case,” he said.
“Mercy and compassion can be extended to Kemar Johnston. You can consider that,” Brener said. “To recommend that another human being should be sentenced to death should be reserved for the worst, of the worst, of the worst.”
The jury does not have to reach a unanimous decision to recommend a sentence, only a majority vote is required. Twentieth Judicial Circuit Judge Thomas S. Reese will will make the final decision on Johnston’s sentence, but Reese will greatly consider the jury’s recommendation when making his decision.
The jury panel is comprised of 13 people, including one alternate juror. There are 11 women and two men.