One day after the confessed Parkland mass killer requested she be disqualified from his case, Broward Circuit Judge Elizabeth Scherer Tuesday provided an answer: denied.
In a one-page order that says simply the motion was “legally insufficient to merit disqualification,” Scherer did not address the underlying allegation the defense made against her — that she spoke with a prosecutor outside the defense attorneys’ presence.
The motion, filed Monday afternoon by his public defenders, claims the killer fears Judge Elizabeth Scherer cannot be impartial because of the conversation.
"This appearance of impropriety requires disqualification of Judge Scherer," the motion states.
The so-called "ex parte" communication came to light last Tuesday when, the defense says, Chief Judge Jack Tuter told an assistant public defender Scherer had spoken to prosecutor Jeff Marcus about a pending motion to provide real-time trial transcripts to the defense on each day of the trial.
But the state says there’s a problem with the defense motion: the communication it alleges never happened.
In a written response to a request for comment from NBC 6, the Broward state attorney’s office denied any such conversation occurred.
"Although the judge can only rule on the legal sufficiency of the motion," the statement read, "we can respond to your question by telling you there was absolutely no conversation between any of our prosecutors and Judge Scherer about this case – outside of courtroom proceedings that were conducted in public."
Assistant public defender Diane Cuddihy said Tuter told her he "was advised by Judge Scherer that Jeff Marcus told her" about a real-time court reporter who could produce the desired transcripts.
When Cuddihy asked Tuter to clarify that Scherer had spoken directly to Marcus, "Tuter responded yes, but that it was a 'private conversation' and he did not want to bring Judge Scherer 'into this,'" the motion claims.
It says Scherer has not notified the defense of the communication, as required by the Code of Judicial Conduct, so "the defendant does not know the extent or duration of the ex parte communication."
That fact, combined with Scherer's prior employment by the state attorney's office – where she was personally mentored by State Attorney Michael Satz – "has created a reasonable fear defendant that Judge Scherer will not remain impartial and that the defendant will not receive a fair trial in front of this judge."
The defense is asking the case be randomly assigned to anther judge.