Inappropriate vs. Threat: New twist in battle over Florida law following 10-year-old’s arrest by Lee County Sheriff’s Office

We have new developments in a story we’ve been investigating for nearly a year, as the Cape Coral fifth grader—now sixth grader—accused of threatening violence at his school goes back to court.

This story made national and international headlines last May, when the Lee County Sheriff’s Office perp-walked the 10-year-old and posted it to Facebook, with few details about what led up to his arrest.

WINK News Investigates Reporter Céline McArthur has been leading our exclusive coverage of this case. She explains what happened in court and what new information the judge will have as she makes her decision.

The May 10 hearing for Daniel Marquez turned out to be a hearing to set up the next court date to discuss the motion to dismiss. Both sides will go through the evidence collected in this case, as well as a new—and potentially game-changing—legal development. At that point, the judge can decide if the charges are dropped or Daniel goes to trial.

The Marquez family, dressed in suits, are back in juvenile court, eager to clear Daniel’s record.

“I will say that they’re wrong. Because I never did anything wrong,” said Daniel, nearly a year after his arrest.

Charges Against Daniel Marquez

The charge against him: Florida Statute 836.10 — Written or electronic threats to kill, do bodily injury, or conduct a mass shooting or act of terrorism.

A month after Daniel’s arrest, Sheriff Carmine Marceno told me why he felt the boy was guilty.

Marceno: “Any person, any person would look and say, guns, get ready for water day. That is a threat.”
McArthur: “What if you were wrong?”
Marceno: “Well, I’m not going to be wrong going with what I feel.”

But here are the facts.

One text read, “scammed a friend,” followed by a screenshot of money.
Another read, “I bought this,” followed by a screenshot of guns.
A third text read “get ready for water day” with a funny emoji.
In an interview with LCSO deputies—obtained exclusively by WINK News—you can hear Daniel explain why he sent the texts.

Detective Tyler Mackereth: “I mean, you can hold it, but.. Wow, for a lot of money.”
Daniel: “Yeah, it was just a joke.”

Without any other evidence to contradict that explanation, Daniel’s attorney Alex Saiz clarifies why that joke isn’t a crime, and why it’s different from the fake or real threat Marceno accused Daniel of making.

“When it comes to a fake threat, the idea of a threat is that you’re trying to put the person in fear; that fear feels real,” said Saiz. “But when somebody’s sending you a message they never intend for you to take seriously, they’re never trying to put you in that fear, the law treats that very differently. Because without that intent to put you in fear, there isn’t a crime there that’s punishable.”

You won’t find the word intent in that law, but the concept is still there.

Mens rea in American Law

Alan Dershowitz, Harvard Professor Emeritus and civil rights attorney, explains what’s called mens rea in American law. Its literal translation: guilty mind.

“Intent must be presumed as part of any statute, unless the statute explicitly excludes it. Obviously, it is very relevant on this case.”
Alan Dershowitz, Harvard Law Professor Emeritus and Civil Rights Attorney

Florida’s Fourth District Court of Appeal agrees. In February, it overturned a conviction against a child accused of sending threatening messages to a classmate through Instagram. The trial court concluded, “the intent of the youth was irrelevant.” The appellate court ruled that was wrong. Saiz says that was a big deal for Daniel, and any other cases moving forward.

“Having the court come out with a decision which held the exact interpretation of the law that we had, it feels like a bit of a vindication,” said Saiz.

Dershowitz doesn’t represent Daniel, but I asked him to review his case file.

“I want to commend you, I want to commend your television station for making this story available to all of us so we can see it and we the citizens can demand changes because this case cries out for multiple changes,” said Dershowitz.

Section II. Risk Assessment

He’s challenging the closed-door process used to detain children. Here’s the score sheet used by the Department of Juvenile Justice. Thirteen points or more get you locked up. Daniel scored 20 right off the bat for what’s listed as a violent felony.

“That’s ridiculous,” said Dershowitz. “It shows you the scoring system means nothing. It’s the scorer that means something, and the scorers here obviously were showing their bias.”

Had the scorer selected Option “E” for a non-violent felony, Daniel would not have earned enough points for automatic detention. Daniel’s father Dereck says the long-term impact of locking up his son, who was 10 years old at the time, has yet to be seen, which is unsettling.

“He used to be a little bit more independent, wanting to venture out; now he wants to stay close,” said Dereck. “He’s just more reserved than he was the way it was before.”

Questionable Narratives on Social Media

Perhaps the most consequential issue in this case is something our legal system does not address: Facebook and TikTok.

“The framers of the Constitution could not have imagined how social media can impact a case, even the Supreme Court,” said Dershowitz. He adds, “And once the social media gets at somebody, it’s often more than a presumption. It’s a certainty of guilt.”

Dershowitz and Saiz both say these posts created a dangerously misleading narrative of what happened, which immediately influenced the social media court of public opinion. And it happened before Daniel could go through the judicial process.

“As to why they didn’t get into the specifics of the case, I can think of two reasons, neither of them particularly good,” said Saiz. “One, they didn’t know fully what was going on before they went to publish it, which tells you a lot about the person publishing the story. Or two, they did know the details of what was going on, and decided not to put them because it would make it look like this was an overreaction.”

Dershowitz reacts to the TikTok post from LCSO about Daniel, where Marceno says in part, “If a 10-year-old, 12-year-old, 18-year-old presses the trigger, the aftermath is the same.”

“He (Sheriff Carmine Marceno) made statements suggesting this kid actually had a gun. Maybe even pulled the trigger. And that’s not what happened here,” says Dershowitz. “And a sheriff has an obligation to be straight with the public and he wasn’t.” Alan Dershowitz, Harvard Law Professor Emeritus and Civil Rights Attorney

Dereck hopes his family’s story will change that.

“I know a lot of people say that it’s not going to be my family; it’s not going to be me,” said Dereck. “But when it is, that’s when you really think like, why why is this happening?”

The Motion to Dismiss hearing is scheduled to take place in June, the day before classes end for Daniel. You can count on us to be there.

No Answers From Lee County Sherriff’s Office

The Lee County Sheriff’s Office hasn’t answered my questions about this case since June of last year. Coming up in the next part of the series, we’re going to hear what one of the deputies who arrested Daniel had to say about that day.

It’s a story you’ll only see on WINK News.

Daniel Marquez Series:

Part 1: Exclusive: 10-year-old arrested, accused of threatening mass school shooting speaks out

Part 2: Cape Coral 10-year-old accused of threatening a mass shooting officially charged

Part 3: 10-year-old accused of mass shooting threat declines plea deal, says not guilty

Part 4: Alan Dershowitz gives case analysis of SWFL 10-year-old accused of threatening mass shooting

Part 5: Law enforcement weighs in on 10-year-old accused of threatening mass shooting

Part 6: ‘She should be euthanized’; Experts weigh in on Lee sheriff’s commentary on suspects

Part 7: Family of 10-year-old charged with mass shooting threat requests DOJ investigation into LCSO

Part 8: Hear the last conversation LCSO had with Daniel Marquez, 10, before he was handcuffed

Part 9: More twists: Lawyer quits Daniel Marquez case; new text messages revealed

Part 10: New attorney for 5th grader accused of threatening mass school shooting discusses the case

Part 11: Could Sheriff Carmine Marceno be charged under Florida statute used to arrest Daniel Marquez?

Part 12: EXCLUSIVE: Lee County Sheriff’s Office deputy deposed after arresting Cape Coral 10-year-old