Day 3 of jury selection in Parkland school shooter’s sentencing phase trial concludes

Defense says they will not seek mistrial, but want to question 11 potential jurors who were excused Tuesday

The defense team for Parkland school shooter Nikolas Cruz said Wednesday they do not want to seek a mistrial due to the fact that the judge excused 11 potential jurors Tuesday before the defense was able to question them, but said they still want to question those jurors.

FORT LAUDERDALE, Fla. – The defense team for Parkland school shooter Nikolas Cruz said Wednesday they do not want to seek a mistrial due to the fact that the judge excused 11 potential jurors Tuesday before the defense was able to question them, but said they still want to question those jurors.

Both sides said they were fine with Broward County Judge Elizabeth Scherer calling the jurors back, but that could cause concerns about the jury being “tainted” given rules that potential jurors are not to talk about the case or read/watch coverage of it, which stopped applying to those 11 people after they were excused.

“Enter an order for the Sheriff’s Department to deliver a summons from the court and a letter from the court that the court would order them not to discuss the case any further,” Assistant State Attorney Jeff Marcus said.

The defense team for Parkland school shooter Nikolas Cruz says they will not seek to declare a mistrial following an incident Tuesday during jury selection.

Legal analysts say that option presents its own challenge, given rules not to read about the case to not apply to excused jurors.

Legal analysis from David Weinstein, former state and federal prosecutor:

“There is no way to know whether those people have now have started looking into what this case was about, so while it is a good suggestion, it’s not one in that in reality might work to fix the problem that exists here.”

While there have been some errors that were committed, the judge has offered a potential solution. However, no one will know whether or not that remedy will work until weeks from now when some, none or all of those jurors appear for further questioning.

If the remedy is successful, there is no error.

The defense is trying to spare their client’s life, so whatever that can do to preserve any error that has been committed works in their favor.

In the current situation, unless they agree to the mistrial, if one is declared over their objection, they could then potentially file an immediate appeal to the 4th District Court of Appeals seeking to invalidate the entire death penalty phase of the trial.

This is a process that is ripe with potential land mines, so the Court needs to proceed with caution.”

Confusion came Tuesday when Scherer sent the 11 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.

The judge asked jurors whether they can “follow the law” -- a question outside the limited scope of phase 1, which is just about hardships people may have that would prevent them from serving.

“Oh, don’t worry,” Scherer told the defense Wednesday. “I will never ask that again.”

While never expressly saying what she planned to do, the judge telegraphed that she will be sending an order for the jurors at issue to return, while answering a defense request for a copy of the letter she would send.

Meanwhile, two women who appeared to be sniffling were escorted out Wednesday morning as the first panel of prospective jurors arrived. By the time they reached the doorway to enter the hallway, one of the women could be heard crying.

“What the last few days have shown us is that the process itself is ripe with potential land mines, and the court needs to proceed with caution,” said Weinstein.

Emotional reactions were also seen during jury selection for Cruz’s battery on a law enforcement trial, stemming from a caught-on-camera BSO jail guard attack in November 2018. Those proceedings ended when Cruz decided to enter guilty pleas to all charges against him in both cases in October.

Cruz, 23, pleaded guilty to the massacre at Marjory Stoneman Douglas High School in October.

The state and defense are searching for 12 jurors and eight alternates.

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 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.

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.

Watch a recording of the live stream of Wednesday’s hearing:

Related stories:

Complete coverage of the Parkland school shooting case

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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."

Michelle F. Solomon is the podcast producer/reporter/host of Local 10's original, true-crime podcast The Florida Files and a digital journalist for Local 10.com.