Lee County man accused of murder seeks new lawyer

August 6, 2009

Lee County man accused of murder seeks new lawyer

BY PAT GILLESPIE
pgillespie@news-press.com

1:49 p.m. update

Attorneys involved in a first-degree murder and sexual battery case will gather Tuesday to discuss whether the defendant's attorney should stay on the case, a judge decided this afternoon in court.

Richard Elkins, 20, doesn't want his current attorney, Kevin Shirley, on the case anymore because he said he heard Shirley is dating the woman prosecuting him, Marie Doerr.

But Shirley and Doerr said that as soon as they started dating in April, Doerr recused herself from the case to avoid any conflicts of interest. Assistant state attorney Bob Lee, who is now assigned to the case, is on vacation and won't be back until next week.

Shirley, co-counsel David Brener and assistant state attorney Michael-Anthony Pica, who filled in for Lee, met in court today for a case management conference to discuss scheduling matters related to Elkins' case. But those matters will be discussed Tuesday as well.

Elkins is charged with one count each of first-degree murder and sexual battery with a deadly weapon in connection with the February 2007 killing of Obed Flores behind the Bonita Center Shopping Plaza in Bonita Springs.

From this morning's editions of The News-Press

A man charged with first-degree murder and facing the death penalty wants a new attorney because he says his counselor is in a relationship with the prosecutor.

But Kevin Shirley, defendant Richard Elkins' attorney, said assistant state attorney Marie Doerr - the prosecutor - hasn't been on the case for months, when Shirley and Doerr began dating.

The issue likely will be discussed at a hearing this morning.

"Ms. Doerr and I went out a couple times and she took herself off the case immediately," Shirley said Wednesday. "We recognized the potential conflict immediately and she took herself off the case."

Doerr said she doesn't see a conflict because she hasn't handled the case since April. Assistant state attorney Bob Lee took over the case then, Shirley said.

But it appears the two were dating for a time while the case was active. If Shirley is taken off the case, it will cause delays in the 2-year-old case.

In a June handwritten motion, Elkins wrote that on May 16, he was in a holding cell at the Lee County Justice Center when he overheard an attorney tell another defendant Doerr was having a sexual relationship with Shirley, who was appointed to represent Elkins in July 2007.

Under the Florida Bar's Rules of Professional Conduct, "a lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."

The Florida Bar's rules don't address non-spousal relationships.

Elkins also wrote in his motion an infrequency of meetings with Shirley to discuss the case has caused him to lose trust in his attorney and he wants a new lawyer.

Attorneys and Elkins will gather in court this morning for a case management conference to discuss scheduling matters. A Nelson hearing, based on a 1973 Florida case that dealt with attorney-client conflicts, is scheduled for next week, Shirley said. At that hearing, Lee Circuit Judge Margaret Steinbeck may have to determine whether Shirley should remain on the case, but the issue will likely come up at the hearing today.

Elkins is charged with one count each of first-degree murder and sexual battery with a deadly weapon in connection with the February 2007 killing of Obed Flores behind the Bonita Center Shopping Plaza in Bonita Springs.

According to a Lee County sheriff's report, Elkins, Flores and Christopher Maner walked behind the shopping center to smoke marijuana. A witness told detectives Flores grabbed Elkins by his genitals when they were outside the bar where they had been drinking.

Elkins responded by punching and beating Flores to the point that he was either unconscious or unresponsive, according to deputies.

As Flores lay on the ground, Elkins then allegedly pulled off Flores' pants and sexually assaulted him before returning to the bar to pay his tab. A witness told detectives Elkins then beat Flores to death with a shovel, according to a report.

The defendant has had two attorneys in this case, both of whom withdrew because of conflicts. Fort Myers attorney David Brener, who had no comment on this issue, was appointed as co-counsel last September. Shirley said Brener and Lee have handled negotiations in the case.

"You'd think if I had favor with the prosecution I'd have gotten a great (plea) deal," he said. "You want to get away from any appearance of impropriety."

Shirley and Doerr worked on the Cash Feenz case as well. Shirley represented defendant Alexis Fernandez, who entered a guilty plea April 29 in exchange for 25 years in prison and his testimony against the remaining co-defendants. Shirley said co-counsel Joseph Lombardo handled negotiations on that case.

"Due to Mr. Shirley's actions, I feel he has absolutely no loyalty to the defendant," Elkins wrote in his motion. "If I cannot trust Mr. Shirley to even let me know what is happening in my case, how, may I ask you, can I trust him to fight for my life if this case goes to trial?"