FORT LAUDERDALE, Fla. — A judge’s willingness to strike more than 200 jurors from consideration in the Parkland mass shooting trial was an error so significant, according to lawyers for the defendant, that the state should no longer be permitted to seek the death penalty.
Attorneys for Nikolas Cruz filed a motion Wednesday morning asking Broward Circuit Judge Elizabeth Scherer to end jury selection and prepare to sentence Cruz to life in prison for the murders of 17 students and staff at Marjory Stoneman Douglas High School on Valentine’s Day 2018. At the very least, defense lawyers argue, the judge must reinstate the jurors she previously struck.
Prosecutors fired back with a response early Wednesday afternoon calling the defense arguments baseless and “a blatant attempt to goad the court into reacting unfavorably,” effectively instigating an issue for an appeal.
The defense motion stems from a dispute over how to handle 11 jurors who, lawyers say, were prematurely dismissed on April 5. A hearing on the ramifications of that decision, as well as the concerns raised by both sides, will begin after the judge screens the next panel of 70 potential jurors.
Scherer, who defended the decision to dismiss those jurors, who said under oath they would not be able to follow the law in deciding the case. Nonetheless, Scherer offered to have the dismissed jurors return to court for additional questioning on April 25.
A problem arose when no one told the prospective jurors to show up. On Monday the state moved to address the error by striking all 243 jurors that had passed through the first round of jury selection.
The judge agreed, over the defense’s objection, and started jury selection from scratch. The defense accused prosecutors of requesting the dismissal in bad faith and the judge of “exponentially” compounding the error instead of addressing it. The defense went as far as raising the issue of compensation for the two lead prosecutors, Mike Satz and Jeff Marcus, who were due to leave the office in January 2021 but were retained on staff at hourly rates to work exclusively on the Parkland case.
“The Court did so without attempting a single plausible remedy, and without giving the defense sufficient time to respond,” defense lawyers wrote in a motion filed Wednesday. “Although this Court did indicate it would give the defense an opportunity to ‘change its mind’ ... based on the Court’s actions, the defense is concerned that the Court will not give this motion due consideration.”
Her decision, defense lawyers said, gave prosecutors a significant advantage in getting a jury more likely to vote unanimously for the death penalty. One of the jurors left a message on the Instagram account of WPLG Ch. 10 indicating he might be exactly the kind of juror the defense would try to rehabilitate. “They called me in for this case. I couldn’t do it. Death penalty thing. Sorry just cantnope,” he wrote.
“The improper striking of all previous panels violates double jeopardy and due process,” the defense wrote. “Thus, if this court does not intend to reverse its order striking all previous panels, and further does not intend to make an attempt to return the 11 improperly excused jurors to court, the state must be barred from seeking the death penalty and the proceedings must conclude.”
Prosecutors in their response said the Instagram post proved that dismissed jurors were already discussing the case and had been tainted, which would make them ineligible to serve anyway. The prosecutors took credit for originally challenging the premature dismissal of the 11 jurors, saying they only prepared their motion to scrap the first two weeks of jury selection after it became clear last Friday the 11 were not told to come back to court.
“The state is concerned with judicial economy, avoiding reversible error, and trying this case once,” prosecutor Carolyn McCann wrote.
She also defended the rehiring of Satz and Marcus. “That the defense would like to separate the prosecutors who are most familiar with the case from its prosecution is not new and has been raised by the defense before,” she wrote.
Satz, the former elected Broward State Attorney who chose not to run for re-election in 2020, is working a maximum of 133 hours a month at $100 an hour. Marcus, Satz’s former chief assistant, is working the same hours and compensation as of Jan. 11, 2022.
While Cruz has already confessed to the murders, his fate is the subject of the upcoming trial. The defense wants Cruz to be sentenced to life in prison. Prosecutors want a jury to decide whether that is acceptable or whether he should be sentenced to death.
Jury recommendations for death must be unanimous under Florida law. If a single juror rejects the death penalty, Cruz will be sentenced to 34 life sentences — 17 for the shooting victims who survived, and 17 for those who did not.
———
