FORT LAUDERDALE, Fla. – With jury trial selection back in the Broward County Courthouse in the case of the state vs. Nikolas Cruz starting up on Monday, Day 7, Week 3, prosecutors are requesting that previous weeks of jury selection be dismissed and that the panels of prospective jurors up to this point are struck.
“There are too many issues at this point,” said prosecutor Carolyn McCann. “It is better to start fresh,” she said.
It could happen. On Monday, Broward Circuit Judge Elizabeth Scherer granted a motion from the prosecution. “We are going to start over,” she said. The judge said her ruling to grant the motion to start over was “without prejudice,” meaning she could revisit the decision. She is giving the defense until Wednesday to present their arguments against the decision.
“The Court granted the State’s Motion to Strike without prejudice in order to give the defense time to respond to the Motion,” said Aaron Savitski, Executive Assistant of the Administration Office of the State Attorney, 17th Judicial Circuit. “It is possible the Court could reverse its ruling after the defense responds. For the time being and without a change in the Court’s ruling, today is the first day of trial and all the previous panels have been stricken.”
At issue are 11 prospective jurors from Week 1 that the judge excused from the case after they said they could not “follow the law” before the defense had a chance to question them.
The procedural issue developed when Broward Circuit Judge Elizabeth Scherer veered away from the limited scope of phase one on what was supposed to be asking prospective jurors if a possible four-month hearing would create hardships. Instead, she asked prospective jurors if they could “follow the law.”
She summarily dismissed 11 potential jurors who answered “no” when she asked their group of 60 if they could follow the law — a question she hadn’t asked any previous panel. The defense protested that she hadn’t questioned each individually to assure they meant what they said.
She then excused 11 from the case who said they could not “follow the law” before the defense was able to speak to them.
The remedy discussed on April 6 was to bring those 11 back to be questioned, an option legal analysts had said presents its own challenge given there are rules to not talk or read about the case. However, that does not apply to excused jurors.
Defense attorney Melisa McNeill told the Court that she thought the motion was premature. “You are creating more error by striking all,” she told Scherer.
Confusion In Potential Jury Call Back
In correspondence obtained by Local 10 News, Assistant State Attorney Jeff Marcus sent an email to Judge Elizabeth Scherer’s judicial assistant Nichole Lunsford on Friday asking whether a jury summons had been sent to the 11 prospective jurors from April 5.
“I understand that they are supposed to return Monday, April 25 . . . I have included the defense attorneys as well as Christina Tsoubanos, assistant BSO legal counsel, in this message,” Marcus writes. “I inquired of Mr. Tsoubanos this morning if he knew whether the jurors were all served. He advised me that he looked into the matter and that BSO has not received a letter from the Court to the jurors and that nobody has been served.”
Tsoubanos, Asst. General Counsel of the Broward Sheriff’s Office (BSO), replies to Marcus’ request for clarification Friday indicating that he “spoke with Captain (Roy) Liddicot of the (Civil Division) and he informed me he has not received the packet of jurors/addresses and the letter from the Court. We can get it served asap once we receive the information. If another department at BSO was provided that information, it was not transferred to Civil.”
On Sunday, the Clerk of Courts Office confirmed with Local 10 News its attorney stated that as of late Friday no new summons was issued to them.
On Monday morning, when Assistant State Attorney Carolyn McCann asked the Judge whether the 11 potential jurors would be in court today, the Judge said no, referring to a “miscommunication.” The state then made a motion to strike all panels to date.
McCann, representing the state, made the argument that this “rises to the level of reversible error” and that the best move would be to start over, which would mean striking all panels from the first six days.
“Error has been vetted and this is a capital case. What happened on April 5 when there were asked if they could follow the law and then the show of hands, it is reasonable that it had everything to do with the death penalty,” McCann told the court Monday. “It is a minefield,” she said.
“This is not harmless error,” McCann said.
The defense stated that it is preparing arguments that they want the judge to consider.
However, if the decision to start over sticks, almost 250 potential jurors who had said they could sit for a four-month trial will not be called back next month for further questioning, according to the Associated Press. More than 1,200 candidates had been screened already.
The defense has recommended that a recess be taken until the issue is fully litigated before moving forward with panes. The prosecution is working to get clarity from the judge about moving forward with new panels as the procedural issue remains devoid of a definitive ruling.
At this time, jurors who already cleared the first round won’t yet be excused.
It will also push the trial back a week from the most recent schedule.
Scherer told Monday’s prospective jury pool: “We anticipate that the trial is going to begin on approximately the week of May 20, I am sorry, the week of June 20, as you will see the courthouse is closed on the 20th so the trial is expected to begin on or about the 21. The reason I say on or about the 21 is because sometimes issues come and things need to be resolved before we begin the trial so it could possibly start later, but the earliest will be June 21st which is a Tuesday.”
It is expected to be a lengthy process of picking the panel that will decide if Cruz is executed or will spend life in prison without parole for killing 17 people at Parkland’s Marjory Stoneman Douglas High School on Valentine’s Day 2018.
Breakdown of Monday’s hearing from legal analyst David Weinstein:
“Today’s development is yet another reason why death penalty cases are inherently so different than your average criminal case.
“The simple issue of providing the defense with an opportunity to ‘rehabilitate’ even a potential juror when they have said they might or might not ‘follow the law’ is an important factor that is considered, especially in death penalty cases, the defense needs to be given an opportunity to try and rehabilitate these potential jurors in an effort to preserve a defendant’s rights under the system.
“In seeking to re-question the jurors the defense is attempting to set the record for what potentially could be an appellate issue down the road. If they are not given an opportunity to rehabilitate these jurors they can argue that there was a potential juror who was included in this panel who they were not able to select. And if that was the case that could have been a juror who would have voted against death penalty. So what they are doing is trying to preserve this issue for some point down the road.”
Weinstein on meaning of “without prejudice”:
“When a judge says he or she or granting a motion without prejudice that means the party who lost on the motion has a right to revisit the issue with the Judge. In this particular case, the Judge granted the motion without prejudice and gave the defense the opportunity to do some more research and come back and make some additional arguments to convince the Judge that her decision was not the correct one.”
Judge granted State's motion without prejudice to give the defense time to respond: “gave the defense the opportunity to do some more research and come back and make some additional arguments to convince the Judge that her decision was not the correct one.” -@DavidSWeinstein pic.twitter.com/KWF2QgStow— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) April 25, 2022
Excerpts from the State’s Motion to Strike the Jury Panel:
Page 2: “During afternoon session on April 5, 2022. this Court then had the clerk swear in the prospective jury for questioning and then stated: “Okay. By a—please answer out loud. In order to be eligible to serve, you much be able to follow the law. Does everyone here believe that they can and will follow the law? Please answer out loud. Ms. McNeill, Counsel for the Defendant, then requested a sidebar, stating that she believed she heard someone in the group say ‘no’ in response to the Court’s question. This set the stage for what was to come, a number of prospective jurors who stated they either could not or would not follow the law, and this Court’s releasing of the jurors over the objections of the parties.”
Page 11: “The jurors excused by this Court on April 5, 2022 were to return to the Court for continued voir dire on Monday, April 25th, 2022.”
Page 13: “In this instant case, parties for both the State and Defense were deprived of the opportunity to question each of the 11 prospective jurors regarding their statements that they either would not or could not ‘follow the law’ or to ‘rehabilitate any juror.’ Excusing these jurors prior to query by the parties was error. Given that a jury has not been sworn in this case, there is no double jeopardy issue.”
Page 14: “Error has now embedded in these proceedings….Thus, in the interest of judicial economy, the State is moving this Court to strike the jury panels of April 4, 5, 6, 11, 12, and 13. Six (6) days of jury selection have taken place. In the scheme of things, the six (6) days expended on jury selection in minimal and error can be easily cured by starting the process again, rather than having a new sentencing phase, which would also require a new jury panel. This Court should and must begin jury selection anew.”
#DigitalDeepDive: “Today’s development is yet another reason why death penalty cases are inherently so different than your average criminal case.” -@DavidSWeinstein #NikolasCruz #CapitalCase pic.twitter.com/0hAnzgLOZt— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) April 25, 2022
#ICYMI #ScenesfromtheCourtroom Judge Elizabeth Scherer disputed she made an error. In this clip you will hear from her, then Assistant State Attorney Carolyn McCann, and then Assistant Public Defender Melisa McNeill. ▶️ Background: https://t.co/4yQhBOgtGN pic.twitter.com/Mjdmh9emN1— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) April 26, 2022
#ICYMI #ScenesfromtheCourtroom - Assistant Public Defender Melisa McNeill had suggested the Court take a recess rather than continue to question panels of prospective jurors about hardships between now and Wednesday. ▶️ More: https://t.co/4yQhBOgtGN pic.twitter.com/TjGkWrSRLX— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) April 26, 2022