Judge plans to question jurors about feelings toward Parkland school shooter in order to find ‘fair’ jury

Expert explains differences picking death penalty jurors

A legal expert explains the differences involved in picking a jury for the penalty phase of Nikolas Cruz's trial after he has pleaded guilty and now faces either capital punishment or life in prison.

FORT LAUDERDALE, Fla. – Nikolas Cruz appeared in court Tuesday for a status hearing, nearly a week after he pleaded guilty to murdering 17 people and attempting to kill 17 others in the Feb. 14, 2018, school shooting in Parkland.

During the hearing, Broward County Judge Elizabeth Scherer told lawyers on both sides that one of the first questions she plans to ask prospective jurors in January for the penalty phase is about their feelings toward Cruz.

She referenced her experience during jury selection for Cruz’s case involving an attack on a Broward Sheriff’s Office jail guard, in which several potential jurors became upset before they were even questioned.

“Just in the last case we had several people who reacted just by walking in, and I think if that question, whether or not these people have heard of the defendant and whether they can be fair -- if it’s not addressed, I think we’re just wasting time because there’s going to be -- based on my experience in the last case -- depending on the particular panel, there was I think up to three people that basically couldn’t even sit in the room without getting upset,” Scherer said.

Prosecutors and the defense will reconvene with the judge next week to go over various motions.

The defense has filed a series of motions to suppress evidence in the case, including evidence related to a search warrant executed at a Lantana home Cruz once stayed in, as well as another home in Pompano Beach.

A 12-person jury will be selected early next year and Cruz will ultimately be sentenced either to life in prison or death.

A status hearing was held Tuesday morning for confessed Parkland school shooter Nikolas Cruz.

During last week’s hearing, Cruz delivered a statement to the families of the victims who were killed and injured in the shooting at Marjory Stoneman Douglas High School, apologizing for what he did and saying that he hopes “you give me a chance to try to help others.”

Families of the victims were unmoved by his statement, calling it “irrelevant.”

“Irrelevant, and we’re just one step closer to justice,” said Fred Guttenburg, whose daughter, Jaime, 14, was killed in the school shooting,

Families who spoke to Local 10 News last week said they are hoping Cruz gets the death penalty, although even the death penalty wouldn’t be enough.

“I think killing him death by injection is too peaceful,” said Andrew Pollack, whose daughter Meadow, 16, was killed in the shooting. “Get him out of the jail and put him in the prison where he gets prison justice.”

“Not even the death penalty would in any way balance what happened to my son,” said Manuel Oliver, who lost his 17-year-old son, Joaquin “Guac” Oliver, in the shooting.

Differences in penalty phase

Legal analysts say selecting a jury for the penalty phase is not a matter of being “fair and impartial” when it comes to guilt and innocence, as Cruz already pleaded guilty. Instead, both sides will look at whether jurors can be fair and impartial on the issue of capital punishment.

“Guilty is not an issue, so if there is a bias as to guilty, that is not a reason — it is about fairness toward the penalty,” Assistant State Attorney Jeff Marcus said.

Legal analyst David Bogenschutz elaborated on that concept to Local 10 News.

“The difference is that you don’t talk about penalty [in a typical trial], in fact, you are forbidden to talk about penalty in regular jury instructions on cases other than death penalty cases, whereas on a death penalty case that’s the issue so you have to talk about it,” he said. “Even though a person may be not fair and impartial as to homicides they may be completely fair and impartial as to penalty so you diverge from the regular instructions and do something that is unheard of in a regular jury trial you go directly to the penalty.”

And just knowing about the high-profile case doesn’t exclude a potential juror, said Bogenschutz, a former prosecutor and defense attorney.

A key issue, he said, is whether jurors can set aside any bias they may have about the death penalty.

“A lot of people based on upbringing, religious, or other reasons don’t like to be involved in that, don’t like to make that decision [on the death penalty] and those are the kinds of questions they would be asked,” Bogenschutz said.

“It is probably one of the hardest decisions they will ever make. You are talking about asking somebody to recommend that another human being be put to death.”

Defense motions to exclude evidence

Scherer set a Nov. 3 court date to begin discussing several defense motions to suppress evidence.

They relate to a search warrant of Cruz’s cell phone and two search warrants at homes where Cruz lived.

In a separate motion, the defense wants to preclude a photograph of a backpack with “inflammatory words and images” as evidence. According to the defense motion, in 2016 a former MSD student took picture of a student wearing a red backpack containing “a drawing of a swastika and the words  ‘f— you n—r’ written on it.”

After the school shooting in 2018 that former student, the defense writes, said he believed it was Cruz who was wearing that backpack in the 2016 photograph. The defense argues that the photograph as a form of evidence is inadmissible in their view because they consider it “irrelevant” to the Parkland shooting. They say that there is “no evidence that any victim was targeted because of race or religion, and the state is not claiming otherwise. Moreover, the State does not have any evidence that Mr. Cruz drew the swastika symbol on the backpack or wrote the offensive words on it.” Adding, “the only purpose would be to inflame the jury in what will already be an otherwise emotional trial.”

The defense also wants to keep the jury from seeing “window re-enactment videos from the third floor teacher’s lounge” created, they say, by a BSO Detective. In the motion, the defense writes that the detective“testified in his deposition that the videos do not depict what actually occurred, but rather what could have occurred.”

They argue that the videos therefore “should be excluded because they are not relevant to any material fact at issue in this case, they represent speculation,” on the part of the detective.

About the Authors:

Amanda Batchelor is the Digital Executive Producer for Local10.com.

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."