Alan Dershowitz gives case analysis of SWFL 10-year-old accused of threatening mass shooting

A ten-year-old boy charged with threatening a mass shooting at his Cape Coral elementary school says he’s not guilty, and his family said they are ready to fight the charges.

As Daniel Marquez and his family approached the courtroom Monday morning, they were offered a plea deal to avoid trial: a court diversion program. Typically, charges are dropped when you successfully complete one of these programs.

Daniel’s father, Dereck Marquez, said no deal.

He says his boy’s reputation has been destroyed in the social media court of public opinion, thanks to Sheriff Carmine Marceno’s Facebook and TikTok posts. The only way to clear his name is to move forward with the trial.

“I feel like it’s frustrating because he’s 10 years old; he didn’t do anything wrong,” Marquez explained.

WINK News Investigative Reporter Celine McArthur has been digging into this case and is the only reporter to talk to Daniel about what happened. She challenged the Sheriff on his version of events and now talks to high-profile legal and law enforcement experts weighing in on what happened.

These experts are not directly involved in this case, and they said they don’t know Sheriff Carmine Marceno, but they all have decades of relevant law and order experience. We asked them to evaluate this situation.

All agree Daniel’s texts warranted an investigation, but they have concerns about how LCSO handled it.

We begin with high-profile civil rights attorney and former Harvard law​ professor Alan Dershowitz. Dershowitz represented President Donald Trump during his first Senate impeachment trial.

“We have a major problem throughout our system. Not only in the juvenile context, but in Congress today, in the courts today, in which we have eliminated due process in which people are allowed to essentially convict other people based on just one person’s assessment,” Dershowitz said.

In Daniel Marquez’s case, that ‘one person’s assessment’ came from Lee County Sheriff Carmine Marceno. It began with the Facebook post seen around the world: a perp-walk of Daniel in a hoodie and handcuffs with a caption from the Sheriff: “This student’s behavior is sickening.”

In a June interview, we asked Marceno why he did that three hours after the boy’s arrest.

“Well, that was the conclusion of the investigation. So, he’s arrested, he’s in our custody. He’s arrested for writing threats to commit a mass shooting,” Marceno said.

Dershowitz challenges that timeline, saying he’s never seen an investigation into a potential school shooter completed in a matter of hours.

“Well, this is Alice in Wonderland, justice. Verdict first, trial after. The trial comes last of all. This Sheriff had made his conclusion without regard to weighing the credibility of the evidence and its weight and its seriousness, and jumped to a conclusion far too quickly to satisfy due process,” says Dershowitz.

Daniel’s father has guns locked away in the home – he told deputies about them when they first questioned Daniel. But those deputies didn’t ask to see them or come back with a warrant to remove the guns or search for any other potential evidence.

“I think the availability of guns to a young person is a relevant factor in the investigation,” says Dershowitz. “But if the police are letting him back into the home, without any confiscation of the guns or change in the security measures, obviously, they’ve come to the conclusion that he and the guns together do not pose a danger. So, it makes very little sense.”

Dershowitz strongly disagrees with Marceno’s decision to post Daniel’s mug shot and perp walk video on social media after he was in custody.

“Once the investigation is complete, there’s no legitimate basis for showing a 10-year-old’s face on television,” says Dershowitz.

Florida law allows Daniel’s photograph to be released since it’s a felony charge. However, the law is not clear when it comes to releasing video.

Dershowitz says Marceno’s TikTok video, which includes a clip of Marceno on Fox and Friends, combined with Daniel’s mug shot edited to a version of the AC/DC song “Shoot to Thrill,” defies explanation.

“There’s certainly no legitimate basis for having a song suggesting more than the evidence allows. And basically, undercutting the presumption of innocence and making this 10-year-old seem like a mass murderer. That seems to have been something the Sheriff did for his own political benefit and not for the protection of society,” says Dershowitz.

In cases involving children, the details of the investigation are protected. Marceno, however, shared what he claims are the text messages sent from daniel to a classmate. And he believes they speak for themselves.

“When you look at this, okay, regardless of who it is, any person, any person would look and say, guns, get ready for water day. That is a threat,” says Marceno. He adds,
“That’s a threat. And you know that as well as I do.”

Dershowitz says he doesn’t know that.

“Those texts alone may constitute probable cause for beginning an investigation, but they don’t even come close to satisfying any evidentiary standard like proof beyond reasonable doubt. If every 10-year-old who made threats like that, or told jokes like that, or did stupid things like that were to be convicted, our jails and juvenile facilities would be filled with false positives,” Dershowitz added.

MCARTHUR: “Do you think the laws should change? Should there be some adjustments because when the laws were created to protect juveniles, you know, we didn’t have social media platforms we have today?”

DERSHOWITZ: “In this case, there’s clearly insufficient protection for juveniles as young as 10-years-old.” He adds, “It would be very useful to have a commission to study how these changes should affect juvenile law. But the one thing that a commission will conclude is, do not show the faces of 10-year-olds on television based on this kind of evidence. Do not accompany that with songs that suggest killing. What the Sheriff did here is simply inexcusable.”

Dershowitz also says Marceno could face a civil suit — even a Department of Justice investigation into law enforcement misconduct. We reached out to Marceno for comment. LCSO sent us a statement saying in part, “As the Sheriff of Lee County, school safety is my top priority. He adds, “Any threats made, real or fake, will be immediately investigated and taken seriously.”

The family, and the Foundation Against Intolerance and Racism, say Daniel didn’t make any threat, real or fake, and they will be back in court on August 3.