FORT LAUDERDALE, Fla. – When Nikolas Cruz told Broward Circuit Judge Elizabeth Scherer back in October that he was guilty of killing 17 Marjory Stoneman Douglas students and staff on Valentine’s Day 2018, it set up the upcoming penalty phase where 12 jurors will need to unanimously decide whether he should pay for those crimes with his life.
Some of the evidence they will consider is anticipated to include gut-wrenching testimony from victims. Public defender Tamara Curtis asked Scherer on Tuesday to consider granting a defense motion asking that only the court hear victim impact statements, which she argued would “infect the proceedings with unfairness so as to deny Mr. Cruz due process.”
Prosecutor Carolyn McCann stated that “the state has every intent to present victim impact evidence,” adding that “victim impact evidence is supposed to be presented to the jury for their consideration, the fact that it might be overwhelming to the jury because of the sheer number of murders committed, is not a reason not to present it to the jury.”
While in most cases, a jury would decide guilt or innocence with sentencing left strictly to the judge, in a death penalty case, the jury decides punishment. In this particular case, with guilt already established by Cruz’s October plea, hearing from the victims the state argued, is evidence jurors should be entitled to consider in the penalty phase of the trial.
The judge agreed with the state’s argument, denying the defense request. “The motion for victim impact statements presented solely to the court is denied,” she said, adding, “I don’t believe there is any law that supports that request.
The defense also filed a motion to limit the number of victim impact statements jurors would hear. The motion indicating they want there to be “one statement per victim,” to be “brief,” and that the statements be read to the jury by a “neutral party.”
“The courts has not placed a limit on how many witnesses can be called,” the prosecutor said. “The defendant has murdered 17 people. That was his choice. … The fact remains there are 17 homicide victims and under the Florida constitution victims have a right to be heard. … I don’t want to tell a victim that we are going to be abridging their constitutional rights for the interest of brevity.”
The judge deferred her ruling on that motion for now.
The other motion argued in court Tuesday was a defense motion to preclude death as a possible penalty on “arbitrary” application in the state of Florida.
Curtis asked the judge to take death off the table, arguing that the state attorney’s office lacks a structured procedure for determining in which cases it will seek the death penalty. She also said that in this case, the decision of whether to continue pursuing the death penalty is being made at the “whim of one man.”
That man, former Broward State Attorney Mike Satz, whose term ended after choosing not to run for re-election but is still leading the prosecution’s case.
“Then state attorney, is continuing to prosecute this case,” Curtis said, “and has refused to consider any mitigation despite the ongoing duty to do so and has continued in a decision to pursue death.”
“While it is true that Mr. Satz filed a notice to seek the death penalty in this case,” countered McCann, “that decision to seek the death penalty has been ratified by Harold Pryor who is Mr. Satz’s successor. In this case there are 17 victims of homicide committed by this defendant over here, this is a case that calls out for the death penalty and the death penalty is appropriate and it is not being sought ‘at the whim of one man’ and the defendant’s motion should be denied.”
The judge issued a ruling on this motion after hearing from both sides, stating plainly: “I agree with the state, your motion is respectfully denied.”
Judge grants portion of defense motion to exclude evidence
Scherer has ordered that the prosecution cannot present as evidence certain items collected during the execution of a search warrant during the upcoming penalty phase, granting portions of a defense motion.
This includes a gun cleaning kit found in the defendant’s bedroom dresser, a gun cleaning tool recovered from atop his bed, 18 .223 cartridges removed from a gun safe in his bedroom, and a tan bag containing a tactical helmet and vest recovered from his bedroom.
When it comes to the gun cleaning kit and gun cleaning tool, Scherer wrote that “this Court would reconsider if there was additional evidence that the State could present that linked those items to the charged offenses,” but that without more than the items themselves, “the State is unable to demonstrate that the items were used to plan, prepare, or practice, as argued, in anticipation of the charged incident.”
As for the 18 .223 cartridges, the judge said since they were found in Cruz’s bedroom they were “not used in the commission of the offense and are thus irrelevant.”
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She also said that given the tag bag containing a tactical helmet and vest were recovered from his bedroom, they were not used in the commission of the offense and adds that “possession of such items in his bedroom does not demonstrate that he used them to prepare or plan the offense.” What is relevant is the vest that prosecutors say Cruz left on the first floor of the 1200 building which was used during the crime.
Another item the judge ruled on is a packing list from Numrich Corporation listing a firing pin and ammunition recovered from a dresser in Cruz’s bedroom. The state had argued that the packing list is relevant “because the firing pin found in the AR-15 used in the commission of the offense and left at the crime scene was sold by Numrich Corp.” The defense team had said any claim that the firing pin on the packing list is the same one found at the crime scene is ‘speculation’.
On this one, the judge decided that the evidence is admissible “only if the State can show that the firing pin at the crime scene is the same as the firing pin on the packing list” and that the ammunition listed “therein should be redacted from this item.”
In a separate order, the Judge denied a defense motion to declare Florida statute 921.141(1) unconstitutional stating that it “has been held to be constitutional by the Florida Supreme Court, and as such, this Court denies that portion of the instant motion.”
Another pre-trial hearing on pending motions is scheduled for Wednesday afternoon.