WINK News EXCLUSIVE: New attorney for 5th grader accused of threatening mass school shooting discusses the case

CAPE CORAL

For nearly seven months, a Cape Coral family has waited to prove their son’s innocence.

At the age of ten, Daniel Marquez was charged with threatening violence at his elementary school during Memorial Day weekend.

Hours after that arrest, video of the boy was posted by the Lee County Sheriff’s Office on Facebook, with commentary from Sheriff Carmine Marceno, which sparked national attention.

“The sheriff made sure of that. Put it on his Facebook so that everyone around the world could see it,” said Dereck Marquez, Daniel’s father.

The 5th grader told the Lee County Sheriff’s Office and WINK News he never made a threat — real or fake. Now, the boy has a new lawyer ready to take this case to trial.

During this time, Daniel Marquez turned 11 and advanced to the 6th grade.

His family says he’s thriving in school, but struggling with PTSD from his arrest, lock up and court appearances.

They also say Daniel has yet to fully grasp how this high-profile arrest could impact his future.

When you Google his name, his mug shot and perp walk are front and center. That’s why they allowed us to share their story.

The Foundation Against Intolerance and Racism, FAIR, hired a Miami civil rights attorney to represent Daniel.

Alex Saiz does not like discussing cases outside the courtroom, especially when they involve children.

“The court of public opinion is one thing. A jury trial or trial by a court is something very different. It’s sacrosanct in our country, and it’s something we protect,” said Saiz.

Saiz says he doesn’t have that option with Daniel Marquez’s case, because the Lee County Sheriff’s Office chose to make it public.

“It should have been a matter that should have been handled by adults involving a child and should have been handled with a certain level of, you know, security and privacy,” said Saiz.

LCSO posted Daniel’s mug shot and perp walk on Facebook three hours after his arrest. Sheriff Carmine Marceno called him “a little delinquent,” and described his behavior as “sickening.”

The social media posting didn’t end there.

Twelve days after Daniel’s arrest, LCSO posted a TikTok video, including the boy’s mug shot edited to AC/DC’s “Shoot to Thrill.”

Saiz believes it’s the Sheriff’s behavior that’s cause for alarm.

“The people of Fort Myers and Lee County need to know what their Sheriff is doing and how it is affecting innocent children in this community,” said Saiz. “When we talk about criminal cases, we always talk about being innocent until proven guilty. Daniel is not going to get that opportunity. Daniel was declared guilty by this system before he even stepped in front of a judge.”

I asked Marceno about it in June, the only time he would talk to us.

McArthur: “What if he’s proven innocent? What if the charges are dropped?”

Marceno: “Well, then publicly…”

McArthur: “What if the detectives were wrong?”

Marceno: “Well, I’ll tell you this, they did a thorough investigation.”

McArthur: “What if you were wrong?”

Marceno: “Well, I’m not going to be wrong going with what I feel.”

Saiz says it’s not about feelings; it’s about facts.

“This was an attempt to go viral,” said Saiz. “The issue here was that it was more important that everybody looked like they’re doing something, than to actually do something.”

Marceno defended the move, saying Daniel’s text messages alone warranted the arrest and video postings.

“That is a threat. That is a threat,” said Marceno.

One text read, “scammed a friend,” followed by a screengrab of money. Another read, “I bought this,” followed by a screengrab of guns. A third text read “get ready for water day” with a funny emoji.

In a LCSO recording obtained exclusively by WINK News, you can hear detectives ask about the texts and react to Daniel’s explanation before arresting him.

Daniel: (returns with phone and reads) “I scammed my friend Jacob; it was just a fake (inaudible)… ”

Dereck: “You’re fine.”

Detective Mackereth: “I mean, you can hold it, but.. Wow, for a lot of money.”

Daniel: “Yeah, it was just a joke.”

(Detective laughs): “So there’s a photo of a bunch of cash. Is that your thumb?”

Daniel: “No.”

Detective Mackereth: “Or just a picture from the internet.”

Daniel: “It’s just a picture. You can see here – the search?”

Saiz says the family is not criticizing law enforcement for questioning Daniel. However, he feels Daniel’s answers in that seven-minute interrogation should not have landed him in handcuffs and lock up.

“We’ve all seen the school shooting cases, and every one of them is a tragedy,” said Saiz. “We see when we start doing an investigation into the shooters, we start seeing things like acts of violence, mental health issues, numerous threats, we don’t see any of that in this case. It would have taken a seasoned detective five minutes to realize Daniel’s a threat to nobody.”

He adds, “Daniel is a young precocious kid with no mental health issues, no negative, no violent history, no negative disciplinary history at school, who sent a text message to his friend, that was objectively not a threat. The reason they didn’t treat this case like Daniel was a threat, was because Daniel wasn’t a threat, and they knew that going in.”

Saiz says the charge (FL 836.10) filed against Daniel —written or electronic threat to kill, do bodily injury, or conduct a mass shooting or an act of terrorism — doesn’t fit.

“It has to be a reasonableness standard,” said Saiz. “And this is one of the reasons why we do these things, not in the media, but we do them in a court of law. What is that comment? What did he text? Not what would you have liked him to text. Not what you think he said. What did he actually say? And was it a threat? And did he pose a threat to anybody.”

He adds, “The problem with it is when we’re trying to litigate on emotion, we’re trying to litigate fear, what causes fear in another. It’s harder to get to the intent of the person. But that’s what’s crucial, right? In this particular case, not only did Daniel not intend to scare his friend with his text message, it was objectively not a threat, and that’s what matters.”

Saiz says this case impacts everyone in Lee County, not just the Marquez family.

“If we can do this to a 10-year-old in this community, all bets are off for anybody, any person who is there alone on the street with a police officer,” said Saiz. “They have to know that there are rules and there are civil rights and there are due process rights that apply to everyone. If we aren’t willing to fight for our children, who are we willing to fight for?”

“I just hope that anyone following this case, like you, follows it to the end,” said Saiz.

Saiz is preparing a motion to dismiss the charge. We’ll let you know how that goes.

Speaking of that charge, legal experts say the statute is so vague as it’s written that almost anyone—including Sheriff Carmine Marceno—could be arrested for their words.

Stay tuned for that story.

If you want to weigh in on this story, email celine.mcarthur@winknews.com.