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Brunvand to Represent Delmer Smith in Hearing Seeking New Trial

Earlier this month, criminal defense attorney Bjorn Brunvand of this office represented Delmer Smith in his Manatee County “Spencer hearing”. Smith was convicted of first-degree murder last August. A jury recommended that he be sentenced to death. A judge must still make the final determination after considering the aggravating and mitigating factors of the case, arguments of counsel and the evidence presented at this month’s “Spencer hearing”.

The purpose of the Spencer hearing is to ensure the reliability of the penalty and sentencing process in Florida. The hearing is named for Leonard Spencer, who was sentenced in 1989 to death after a jury found him guilty of two counts of first-degree murder and multiple counts of armed robbery.

In Spencer’s case, the defense attorney went looking for the judge and prosecutor and found them in the judge’s chambers, proofreading an order sentencing Spencer to death. Spencer’s attorney, “voiced his concern that the judge had drafted an order expressing his reasons and conclusions for imposing the death penalty prior to Spencer’s counsel having an opportunity to be heard,” according to the appeals court.

The Florida Supreme Court ultimately determined that a trial judge should not formulate his sentencing decision prior to giving the defendant an opportunity to be heard. They then established a procedure to be used in the sentencing phase, which included the trial judge holding a hearing to give the defendant and his or her counsel the opportunity to be heard and an opportunity to present additional evidence – now called a “Spencer hearing”.

In Smith’s case, the judge heard evidence of Smith’s health condition. Defense psychologist Ruben Gur testified that abnormalities in Smith’s brain affect his thinking processes. Possible causes include traumatic brain injury.

“The thinking is hyper-active at the resting stage and shuts down when you need to perform a task,” Gur said. Gur, of the University of Pennsylvania, testified about what he found in MRI and PET scans performed on Smith. He concluded that the abnormalities shown are consistent with brain injury.

Smith is scheduled to be sentenced by the court on May 28. The judge has only two sentencing options under Florida law – death penalty and life in prison without parole.


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