FORT LAUDERDALE, Fla. – Pretrial deliberations continued Thursday in the case of admitted Parkland School shooter. The defense argued with the state on the number of expert witnesses that would be allowed to testify.
In the Broward County Courthouse, the defense showed its plans to present to the jury a list of expert witnesses in the upcoming penalty phase of Nikolas Cruz vs. the State of Florida.
The defense had already telegraphed its plans to present mental health-related evidence as mitigating facts for the jury to consider from multiple personality disorder to hearing from experts talk about fetal alcohol syndrome to extreme mental stress.
“The defendant is referring to another personality as ‘hatred’ and he’s the one who committed these crimes so that obviously could be a multi-personality defense,” Jeff Marcus, assistant state attorney, told Broward County Circuit Court Judge Elizabeth Scherer.
The defense told the court that the state should be restricted to one expert based on the wording of a rule that states that the defendant be examined by a mental health expert. The defense taking the language of rule 3.202(d) quite literally which reads:
“Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the state indicating its desire to seek the death penalty, the court shall order that, within 48 hours after the defendant is convicted of capital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for the state and defendant may be present at the examination. The examination shall be limited to those mitigating circumstances the defendant expects to establish through expert testimony.”
The state then countered the defense saying that the rule does not specifically say “one” and asked the court to allow them to present more than one expert given how many the defense planned to present.
Prosecutor Carolyn McCann read a list of the state’s expert witness subject fields, emphasizing the multiple mental-health causes represented.
“Memory deficits, next, motor function delays, next, neurological impairments, next, multiple deficits in adaptive function, next, brain damage, next . . .”
Prosecutors argued that they would need to have the same access to “level the playing field” because it would be impossible for one expert to be able to address the variety of physiological and medical diagnoses and determinations the defense is planning to introduce. The evidence would be presented to the jury to consider when making a decision on a punishment — whether Cruz gets life in prison without parole or the death penalty.
The state argued it would be unfair for the defense to be allowed to present upwards of more than a dozen experts from a variety of subject matter fields and the state be restricted to just one who would be able to examine Cruz.
“The word ‘one’ – o-n-e-’ is nowhere in the rule,” McCann said.
“The state has absolute rights to present the case and justice to the victims. It is not just about the defendant. It is all about leveling the playing field and it is not level where they have listed 14 experts and they want to keep us to one. How is that level? That is lopsided. It is not fair,” McCann countered.
The state’s perspective did resonate with the judge as Scherer read from the list.
“These are just some of the specialties: Genetics, psychology, speech pathology, neurology, radiology, forensic psychology, neuropsychology, toxicology . . . I don’t know of any one doctor that could possibly be an expert in every one of these fields.”
The judge denied the defense’s motion with a caveat that would let the state have more than one expert examine Cruz per a distinct field of study.
“Make a list of the medical fields and then I will determine which fields are specific enough that warrant expert,” Scherer said.
What will happen next is the judge will issue a formal order and then the state is expected to present expert witnesses it wants the court to consider.
Cruz pleaded guilty in October to the 17 murders and 17 attempted murders of the 2018 shooting at Marjory Stoneman Douglas High School.
Last week, Scherer postponed the penalty trial for Cruz until April with the goal of beginning jury selection in the first week of April.
Legal analyst weighs in
We asked legal analyst and attorney David Bogenschutz what could be the impact on jurors of hearing from so many experts and mental health diagnoses?
“I think care’s got to be taken by the defense attorney. You don’t want to throw a whole cornucopia because I think it takes away from the ones you really want to lead on.”
And, Bogenschutz said the defense could send the wrong message that could hurt their case. “You don’t want to send the message that ‘we don’t have much in this case but how about all this, you want to target the issues you really have.’ No matter how much you put on they are still thinking 17 dead.”
If Cruz’s defense is trying to gain the jury’s sympathy and their understanding he “should not die, pick the best shots you have, don’t dilute with something that is not quite that good.”
What about the defense argument that the state should have just one expert?
“The state needs to be on the same footing, the right to same shot,” which includes, he says, the ability for the state to present a witness in the same field of study as a defense expert witness to be able to rebut defense testimony. “That’s only fair.”