Parkland shooting judge reverses his own decision to restart jury selection, leaving lawyers confused

The judge overseeing the Florida sentencing trial school shooter Nikolas Cruz reversed it on Wednesday and said it is not dismissing more than 200 potential jurors who survived a first round of screening earlier this month.

In the latest confusing twist since jury selection began three weeks ago, Judge Elizabeth Scherer overturned her Monday decision to start jury selection again because of a possible mistake she made. She had said then that she would rule out 243 potential jurors who said they could serve from June to September, the expected length of the trial.

Now, she said, she will order 11 potential jurors she fired on April 5 without question to be taken back to court on Monday to be questioned by lawyers. Referring to the 243 potential jurors who were fired, she said, the first 40 would now be brought back for the start of the second round.

The decision has left lawyers on both sides confused, including chief prosecutor Mike Satz, who served as Broward County’s state attorney for 44 years before stepping down last year. He is now working as his successor on a special mission to lead Cruz’s prosecution team. At one point, Satz interrupted Scherer to ask what his exact plan was.

Scherer has been a judge for 10 years but is overseeing her first death penalty case. She was named after Cruz, 23, murdered 17 people at Marjory Stoneman Douglas High School on February 14, 2018. She was selected using the random method used in Florida.

Lawyers for Parkland Shooters Want Judge to Remove Them
Broward County Circuit Judge Elizabeth Scherer hears testimony during a hearing for Parkland High School shooting suspect Nikolas Cruz at Broward Courthouse in Fort Lauderdale, Florida on Wednesday, May 1 of 2019.

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Cross pleaded guilty in October. Scherer, prosecutors and defense attorneys are choosing 12 jurors and eight alternates in a three-step process. Those selected will decide whether the Stoneman Douglas alumnus is sentenced to death or life in prison without parole.

The question at the heart of the dispute arose on April 5, the second day of jury selection, about how Scherer handled a pool of 60 potential jurors. It was the fifth such panel to appear in court.

With all the other groups, Scherer just asked if the potential jurors had any difficulties that would make them unable to serve from June to September. Those who say they could serve are being instructed to return next month for further inquiries.

With the fifth group, however, Scherer asked if any would not follow the law if chosen – a question that shouldn’t be asked until the second or third phase. Twelve hands went up.

Scherer fired them without further question, drawing an objection from both Cruz’s prosecutors and lawyers. They wanted to make sure they weren’t simply trying to avoid jury duty. Florida jury candidates are always questioned prior to dismissal.

Scherer tried to bring the jurors back, but all but one left the courtroom. She said the Broward County Sheriff’s Office would serve subpoenas to the other 11 to return to court last Monday, but that was not done for unexplained reasons.

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Assistant Public Defender Melisa McNeill speaks with Assistant District Attorneys Mike Satz, left, and Jeff Marcus before jury pre-selection begins in the penalty phase of the trial of Marjory Stoneman Douglas high school shooter Nikolas Cruz in Broward County Courthouse in Fort Lauderdale on Monday.

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She originally said they would be instructed to return next week, but prosecutors convinced her over the defense’s objections to starting the process again and dismissing all 243 jurors who had been selected up to that point. The prosecution argued that Scherer’s mistake was so great that if Cruz receives a death sentence, an appeals court could overturn it and order a new trial. The defense wanted her to put the case on hold until 11 could be brought in next week.

That prompted the defense to file a motion on Wednesday alleging that Cruz’s constitutional rights to due process and against dual criminality had been violated. They accused Scherer and prosecutors of acting in “bad faith” and wanted her to immediately sentence Cruz to life in prison, eliminating the death penalty. Prosecutors angrily called this accusation “baseless”.

Scherer called the defense’s motion “a stretch” and rejected it, but that’s when she backtracked.

Scherer then told both sides to work together over the next few days to plan how they want to proceed from Monday. It remains unclear what will happen to the 155 jurors who passed the first round this week and whether they will be brought back next month. If they are still in play, that would give lawyers a pool of nearly 400 to go through.

Eventually selected jurors will decide whether the aggravating factors — the multiple deaths, Cruz’s planning and his cruelty — outweigh mitigating factors such as the defendant’s lifelong mental and emotional problems, possible sexual abuse, and the death of his parents.

For Cruz to receive the death penalty, the jury must unanimously vote on that option. If one or more jurors vote against it, he will be sentenced to life in prison without parole.

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