Principal liability — how Florida convicts a man who never touched the gun
Plain-English explainer, drawn only from the case law, the statute, and the model jury instruction. Not legal advice.
The test
Florida does not have a separate, lighter crime for the person who arranges a killing. Under the principals statute, whoever "aids, abets, counsels, hires, or otherwise procures" an offense is guilty of that offense itself — the same first-degree murder as the shooter — "whether he or she is or is not actually or constructively present." The jury instruction breaks it into two things the state must prove: first, that Fernandez had a conscious intent that the killing be done; second, that he did some act or said some word that was meant to, and actually did, "incite, cause, encourage, assist or advise" Henry Tenon to commit it. There is a second version of that instruction written for exactly this situation — where the defendant is alleged to have paid the person who did it — and it asks whether the defendant made or promised payment in exchange for the killing, and whether the killing then actually happened. Because the charge is first-degree murder, the state must also prove premeditation: a decision to kill formed before the act, not in the heat of the moment.
Who has to prove what
Entirely on the state, beyond a reasonable doubt, on every element of both counts. Fernandez does not have to prove anything, does not have to testify, and does not have to explain the checks, the tire or the missing 70 minutes on his phone. His side's job is only to make the jury unsure — which is why the defense keeps returning to what the state's own witnesses conceded on the stand: no DNA, no fingerprints, no weapon, no surveillance of him, and no witness who ever heard him and Tenon discuss a killing. The verdict must be unanimous either way. Under Commonwealth v. Lawson (2016), the mere fact that most people are sane is not, by itself, enough to carry that burden once mental-illness evidence is in the case — the Commonwealth may rely on the circumstances of the offense and the defendant's words and conduct before, during, and after.
- Does "she knew what she was doing" end the inquiry?
- No. The test has two independent prongs. Even a defendant who appreciated wrongfulness is not responsible if disease left her without substantial capacity to conform her conduct to the law. That is the prong defense expert Dr. Zeizel invoked.
- If the jury acquits on lack of criminal responsibility, does she walk free?
- No. Under M.G.L. c.123 §16, the court may order up to 40 days of hospitalization for evaluation, and the DA or facility may petition for commitment — six months initially, renewable in one-year periods. The model instruction notes a person who remains mentally ill and dangerous "may remain committed for the duration of his [or her] life."
- What are the jury's options here?
- First-degree murder (life without parole), second-degree murder (life with parole eligibility), not guilty by reason of lack of criminal responsibility, or no unanimous verdict (mistrial; retrial possible). Whether involuntary manslaughter joins the slip is still being argued.
— Fla. Stat. § 777.011 — Principal in first degree · Fla. Std. Jury Instr. (Crim.) 3.5(a) — Principals · Fla. Std. Jury Instr. (Crim.) 3.5(b) — Principals, when the active participant was hired by the defendant · Fla. Stat. § 782.04(1)(a) — premeditated first-degree murder · Fla. Stat. § 777.04 — criminal solicitation