Day 2 of Nikolas Cruz’s penalty phase, missteps could lead to mistrial motion

Procedural issue during jury pre-selection leads defense to consider mistrial motion

After the conclusion of the second day of jury selection, Nikolas Cruz’s defense attorneys criticized Broward Circuit Judge Elizabeth Scherer for a procedural issue regarding 11 potential jurors and said they wanted to consider it grounds for a mistrial.

FORT LAUDERDALE, Fla. – After the conclusion of the second day of jury selection, Nikolas Cruz’s defense attorneys criticized Broward Circuit Judge Elizabeth Scherer for a procedural issue regarding 11 potential jurors and said they wanted to consider it grounds for a mistrial.

Confusion came when Scherer sent a group of prospective jurors to the jury room after an exchange about whether they “could or would not follow the law” before the defense was even able to question them.

“These are people that said they cannot and will not follow the law that I excused back to the jury room to serve on another case and the jury room immediately excused them,” Scherer sharply told the prosecution and defense teams.

After a tense exchange as the judge wanted the defense to make a decision in “5 or 10 minutes,” it was decided that the discussion would lead off Wednesday morning.

Melisa McNeill, public defender: “I am going to ask to be able to make that decision by . . . I need 24 hours.”

Judge: “No, I will give you 5 or 10 minutes.”

McNeill: “You are going to give me 5 or 10 minutes to make a decision about whether I want to file, ask for a mistrial in a 17 count capital murder case?”

Judge: “We are one and half days into jury pre-selection, we have days and days to go. I don’t think this is reversible error to begin with, so yes, I am.”

McNeill: “So you won’t give me 24 hours?”

Judge: “No.”

McNeill: “I just want to make sure the record is clear.”

Judge: “The record is clear. I won’t give you 24 hours. You have 5 or 10 minutes.”

The judge ultimately decided to recess for the day and reconvene on the matter Wednesday morning.

“Both sides as well as the judge are going to need to take it slow. Decisions shouldn’t be made in 5 to 10 minutes,” said legal analyst and former state and federal prosecutor David Weinstein. “It is important that the judge take the time to draw on not only their own experience, but those of other judges who have done this before. This is not a misdemeanor or battery case, this is a case involving the death penalty, and so it needs to proceed in a much slower fashion and be deliberate, because in the end, no one wants to try this case twice.”

While the procedural issue could be cause for a mistrial, it would not mean the end of the trial. It is early enough in the proceedings that if the defense does want to pursue the mistrial motion, it would most likely mean that the past two days would be struck and the pre-selection process would start again.

Related story: Man shows up to court with a security guard to support Nikolas Cruz

Cruz, 23, pleaded guilty to the massacre at Marjory Stoneman Douglas High School in October. He waited quietly as the jury selection process continued. The search for 12 jurors and eight alternates started with a pool of about 1,000 prospective jurors.

The phased jury selection process will take about two months. The potential jurors will have to answer questions from public defenders, prosecutors, and Scherer, who expects the penalty phase to start on May 31 and run through September.

On Feb. 14, 2018, the 19-year-old former MSD student was armed with an AR-15 when he aimed at students in the classrooms and hallways of Building 12. Surveillance videos show it took him about seven minutes to shoot 34 people; he injured 17 and killed 17 — 14 students and three school employees.

(WATCH: Complete Day 2 in court below)

‘FAIR AND IMPARTIAL’

On Tuesday morning, a group of potential jurors took an oath to answer attorneys’ questions truthfully.

“From a religious standpoint, I do not feel that it is my right to be able to say, ‘You deserve to be put to death,’” a prospective juror said adding, “It would just be very hard for me to say, ‘I believe that this person should be put to death.’”

Assistant State Attorney Michael Satz pressed the prospective juror on whether or not she thought she could be fair and impartial. She wavered.

“So when you said before you could never vote for the death penalty, you are going back on that?” Satz asked.

“Yes, I am,” she responded.

Defense attorney Casey Secor told Scherer she didn’t want the prospective juror to be excused. Prosecutors argued she should be struck for cause. Scherer agreed and said that while her responses were thoughtful there was reasonable doubt about her capacity to be fair and impartial. The process continued.

As of Tuesday afternoon, the defense and the prosecution teams each had 10 peremptory challenges, the objections to a proposed juror without needing to give a reason why. Judges may increase the number of strikes.

Scherer told potential jurors that just knowing about the case was not a reason to be relieved of jury duty. Some of the reasonable excuses include being a caretaker or loss of income.

The 12 jurors selected will have to learn the facts of the case and decide if Cruz will face the death penalty or life in prison without parole.

Related stories: Complete coverage of the Parkland school shooting case

More afternoon reports

Day 2 of jury selection: 5:30 p.m. report

Nikolas Cruz, the 23-year-old defendant who pleaded guilty to the massacre at Marjory Stoneman Douglas High School, waited quietly on Tuesday as the jury selection process continued for the second day.

Day 2 of jury selection: 4:30 p.m. report

Nikolas Cruz, the 23-year-old defendant who pleaded guilty to the massacre at Marjory Stoneman Douglas High School, waited quietly on Tuesday as the jury selection process continued for the second day.

Day 2 of jury selection: 3:30 p.m. report

Nikolas Cruz, the 23-year-old defendant who pleaded guilty to the massacre at Marjory Stoneman Douglas High School, waited on Tuesday as the jury selection process continued for the second day.

Day 2 of jury selection: 12 p.m.

Tuesday marked day 2 of jury selection for confessed Parkland school shooter Nikolas Cruz’s penalty phase trial.

Day 1 of jury selection: 11 p.m.

For more than four years, family members of the 17 students and staff murdered at Marjory Stoneman Douglas High School in February of 2018 have waited for this day.

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About the Authors:

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."

The Emmy Award-winning journalist joined the Local 10 News team in 2013. She wrote for the Miami Herald for more than 9 years and won a Green Eyeshade Award.