Florida school shooting judge reverses; confusion follows

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© South Florida Sun Sentinel 2022

Marjory Stoneman Douglas High School shooter Nikolas Cruz speaks with Assistant Public Defender Melisa McNeill prior to the start of the day's jury pre-selection in the penalty phase of his trial at the Broward County Courthouse in Fort Lauderdale, Fla., on Wednesday, April 27, 2022. Attorneys for Cruz argued Wednesday that he should no longer face a possible death sentence, accusing both the judge and prosecutors of acting in bad faith when 240 potential jurors were dismissed this week. (Amy Beth Bennett/South Florida Sun-Sentinel via AP, Pool)

FORT LAUDERDALE, Fla. – The judge overseeing the penalty trial of Florida school shooter Nikolas Cruz reversed herself Wednesday and said she is not dismissing more than 200 potential jurors who survived a first round of screening earlier this month.

In the latest confusing turn since jury selection began three weeks ago, Circuit Judge Elizabeth Scherer overturned her Monday decision to start jury selection anew because of a possible mistake she made. She had said then that she would throw 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 dismissed on April 5 without questioning to be brought back to court this Monday to be queried by the attorneys. Referring to the 243 potential jurors that had faced dismissal, she said, the first 40 would now be brought back for the start of the second round.

The decision left attorneys from both sides confused, including the lead prosecutor Mike Satz, who served as the Broward County state attorney for 44 years before leaving office last year. He is now working for his successor on a special assignment to lead the Cruz prosecution team. At one point Satz interrupted Scherer to ask her what exactly her plan was.

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

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

The issue at the core of the dispute arose April 5, the second day of jury selection, over Scherer’s handling of a group of 60 potential jurors. It was the fifth such panel to appear in court.

With every other group, Scherer only asked if the potential jurors had any hardships that would make it impossible for them to serve from June through September. Those who say they could serve are being told to return next month for further questioning.

With the fifth group, however, Scherer asked if any would not follow the law if chosen — a question that wasn't supposed to be asked until the second or third phase. Twelve hands went up.

Scherer dismissed them without further questioning, drawing an objection from both prosecutors and Cruz’s attorneys. They wanted to make sure they were not simply trying to avoid jury service. Florida jury candidates are always questioned before dismissal.

Scherer tried to have the jurors returned, but all except one had left the courthouse. She said the Broward County Sheriff’s Office would deliver summonses to the other 11 to come back to court this past Monday, but that was not done for unexplained reasons.

She originally said they would be told to return next week, but prosecutors convinced her over defense objections to start the process anew and dismiss all 243 jurors who had been selected to that point. The prosecution argued that Scherer's error was so great that if Cruz gets a death sentence, an appellate court could overturn it and order a retrial. The defense wanted her to suspend proceedings until the 11 could be brought in next week.

That led the defense to file a motion Wednesday alleging that Cruz's constitutional rights to due process and against double jeopardy had been violated. They accused Scherer and prosecutors of acting in “bad faith” and wanted her to immediately sentence Cruz to life, throwing out the death penalty. Prosecutors angrily called that accusation “baseless.”

Scherer called the defense's motion “a stretch” and dismissed it, but that's when she reversed herself.

Scherer then told both sides to work together over the next few days to devise how they want to proceed starting Monday. It remained unclear what will happen with 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 the lawyers a pool of nearly 400 to winnow through.

The jurors eventually selected will decide whether 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 vote unanimously for that option. If one or more jurors vote against it, he will be sentenced to life without parole.