The judge overseeing jury selection for a man who murdered 17 people at a Florida high school declared that the process will start over Monday, after prosecutors and defense attorneys argued that she erred when she didn't question 11 potential jurors who said they would not follow the law before she dismissed them.
In granting the motion filed by Nikolas Cruz 's prosecutors over the strong objection of his attorneys, Circuit Judge Elizabeth Scherer nullified two weeks of work by prosecution and defense lawyers, forcing them to begin the entire process anew Monday.
As a result, almost 250 potential jurors who had said they could sit for a four-month trial will not be called back next month for further questioning over whether they could fairly judge Cruz, who pleaded guilty in October to murdering 14 students and three staff members at Parkland's Marjory Stoneman Douglas High School on Feb. 14, 2018. More than 1,200 candidates had been screened.
The 12-member jury that will be selected after a two-month winnowing process will decide if Cruz, 23, is sentenced to death or life in prison without parole. The restart will push back opening statements from June 14 to June 21. They had already been delayed from May 31.
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Prosecutor Carolyn McCann made her argument after the 11 jurors who were improperly dismissed by Scherer two weeks ago weren’t told to return to court for more questioning Monday — as had been planned — due to a miscommunication error.
Scherer said they would be brought in next week, but McCann argued that more time would be wasted if the potential jurors had to be struck anyway. She said the prosecution has just as much right to question potential jurors and to an untainted final panel as the defense.
“Neither side has been able to talk to these jurors. In a capital case, the questioning of jurors is important. It is of the utmost importance," McCann said. "This is not harmless error.”
Melisa McNeill, Cruz’s lead public defender, said Scherer should wait until next week to see if the 11 jurors returned and could be questioned.
“We believe you are committing more error" by dismissing the potential jurors now, McNeill said.
Scherer sided with the prosecution, but gave the defense until Wednesday to conduct research in an effort to change her mind.
Scherer told both sides that while they think she made a serious error by not questioning the 11 jurors, she disagrees. She said she was only deferring to their opinion to move the case forward.
Having to start again has been a possibility since April 5 after Scherer's questioning of a group of 60 potential jurors, the fifth of 21 panels screened before Monday.
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. With the fifth group, however, she also asked if any would not follow the law if chosen. Eleven hands went up.
Scherer dismissed them without further questioning, drawing an objection from 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 them, but that was not done for unexplained reasons. Even if all returned, they still might have been disqualified because they had not been given the order that Scherer gave to other potential jurors to not discuss or read about the case.
“I will never make that mistake again,” Scherer told attorneys the next day.
David Weinstein, a Miami defense attorney and former prosecutor, said Monday that the prosecutors are correct, to a point. They, the victims and their next of kin “all have a right to a fair trial, but that right can’t trump the rights of a criminal defendant.”
“What the state is seeking to prevent, more than anything else, is a penalty phase that has been tainted at this early stage,” he said. If Cruz receives a death sentence, that could result in it being thrown out on appeal, he said. “From their perspective, the judge can wipe the slate clean and start over."
But the defense, he said, will argue on appeal that by restarting over their objection, Cruz is being subjected to double jeopardy and cannot be sentenced to death.
Robert Jarvis, a law professor at Nova Southeastern University, said the prosecution is correct that a restart is necessary. But, he said, the dispute is “another error by a judge who is in over her head.” This is Scherer's first capital case.
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 vote against it, he will be sentenced to life without parole.
Given Cruz’s notoriety and the hatred many in the community have for him, finding jurors who can be fair promises to be an excruciatingly long process. Jurors who can serve four months complete questionnaires about their backgrounds and their beliefs on the death penalty. The answers are given to both sides, and then prospects are brought back in several weeks for further questioning.
Both sides then can try to “rehabilitate” jurors who they believe might be favorable for their side. For example, jurors who are morally opposed to the death penalty would normally be dismissed as unfair to the prosecution, but the defense can ask whether they could vote for the death penalty if the law required it. If the judge is convinced that they could, the juror could be seated.