Nikolas Cruz appears distressed in court appearance, leading to issue over colored pencils

Some potential jurors dismissed after admitting they cannot be impartial in Cruz battery trial

Wednesday marked the second day of jury selection in Nikolas Cruz’s trial stemming from a caught-on-camera jail guard attack in November 2018.

FORT LAUDERDALE, Fla. – Wednesday marked the second day of jury selection in Nikolas Cruz’s trial stemming from a caught-on-camera jail guard attack in November 2018.

Cruz appeared distressed as the proceeding got underway, rubbing his forehead and blowing his nose as his counsel provided him tissues.

The 23-year-old is facing several charges in this case, including attempted aggravated battery on a law enforcement officer.

“By a show of hands, is there anyone who feels they cannot presume Nikolas Cruz innocent because of their knowledge of Mr. Cruz with the Parkland shooting or of this case? Broward County Judge Elizabeth Scherer asked.

During the pre-screening process, the judge asked prospective jurors about the February 2018 deadly school shooting in Parkland to mitigate against strong feelings on that case possibly bleeding over to this one.

“My best friend’s sister lives in Parkland and one of my church members was killed in the Parkland shooting, so I can’t,” one prospective juror said.

Scherer told the woman she would be excused from the jury pool.

The judge also excused other potential jurors who said they didn’t think they could be fair and impartial while listening to the facts of this case given Cruz’s notoriety as a confessed school shooter.

“The lead attorney in this case is fighting against an aggravating factor that is later going to be used in another case that could cost Nikolas Cruz his life,” defense attorney and former prosecutor David Bogenschutz said.

Bogenschutz, who is not involved in Cruz’s trial, told Local 10 News the stakes are high.

“Both sides of this second-degree felony trial, because a conviction in this case could be used as an aggravating factor in the potential penalty phase of Cruz’s upcoming Parkland shooting death penalty trial, if found guilty,” he said. “When you begin lumping in other factors that aggravate that crime, because prior convictions being one of them, than you become more susceptible to be receiving the death penalty should you get a conviction.”

On Wednesday, the state told the judge they were objecting to Cruz having what they said was drawing paper and what appeared to be crayons at his desk.

Defense attorney Gabe Ermine in his comments indicated that this process is taking a toll on his client.

“Why does he need colored pencils and drawing paper?” the judge asked.

“He is clearly upset, he is visually upset right now. I am trying to keep him calm,” Ermine answered.

“As long as he is not coloring with crayons as if he’s a child that’s fine but that is not appropriate,” the judge said. “If he wants to take notes that’s fine, if he wants to sit there that’s fine, if he wants to participate that’s fine, if he wants to be quiet that’s fine, but as far as coloring pictures on a picture book that does not assist him or you in selecting a fair and impartial jury, it gives an impression that he’s a child.”

The judge ultimately ordered that Cruz can only use a Broward Sheriff’s Office-issued pen and can’t block his face with a computer screen as he was doing Wednesday.

Ermine asked that his client have some downtime between jury panels.

“There are clearly a number of jurors who are crying and are upset,” Ermine said, requesting that Cruz be given two minutes of downtime.

By the end of Tuesday, 67 people were asked to return for final jury selection on Oct. 18.

On Wednesday, it appears they are aiming to continue pre-screening until about 30 more are moved to final jury selection.

Analysis: Cruz’s emotional state, and looking ahead to final jury selection

“Nikolas Cruz is in his early 20′s now. It has been going on for five years,” Bogenschutz said. “I am sure that at one point in his time in the county jail he realized this day is coming closer and closer, even if it is for this small case as opposed to the large case. I think it does a lot of things to you psychologically, especially if you have people in there who you hear cannot give you a fair trial because they know what he did. That’s got to be distributing to him, and seeing jurors cry? That’s got to be distrusting to him.

“It doesn’t sound to me like the defense is doing anything to impact this case and I think the yellow, green, blue-colored pencils they have, I think after today, after that small vignette I saw, it might be appropriate for the defense to have a psychologist to sit down with him again and see what is going on. The last thing you want is a client who can’t hear what is happening or can’t deal with what is happening because something else is going on in his head, because that really doesn’t give him a shot in this case.”

“He is finally realizing this is really happening, even though this is the first case and this may be difficult for him to accept and to process and maintain his composure on,” Bogenschutz added.

Next up: Final jury selection

Final jury selection is scheduled for Oct. 18.

A total of 106 people qualified for final jury selection after a two-day pre-screening during initial jury selection on Tuesday and Wednesday. Attorneys on both sides need to pick a six-member jury.

Per Florida statute, each side gets six strikes.

There is also the potential of some prospective jurors being excused for cause for, let’s say, violating the judge’s order not to post about the case or their role as a potential juror in it on social media.

“Both the state and the defense attorneys are going to try to encapsulate this case away from the murder case,” Bogenschutz said. “Jury selection, I think, is the most important thing that happens in a trial because if you lose a jury on jury selection, you might as well go home.

“The thing that makes this case difficult is what’s going on in the background with the homicide issue lurking.”

What the defense is looking for during questioning of potential jurors

“I think you want people who have children, children his age, if possible. I think you want school teachers who deal with children all the time. I don’t think you want law enforcement personnel or anybody who has any connection with law enforcement personnel,” Bogenschutz said.

What state is looking for during questioning of potential jurors

“I think you want to get some law enforcement people if you can or people who have law enforcement background,” Bogenschutz said.

About the Author:

Christina returned to Local 10 in 2019 as a reporter after covering Hurricane Dorian for the station. She is an Edward R. Murrow Award-winning journalist and previously earned an Emmy Award while at WPLG for her investigative consumer protection segment "Call Christina."