Judge in Nikolas Cruz’s trial reverses her decision to restart jury selection

Attorneys argued about whether or not to continue their search for the jurors who will have to decide if Nikolas Cruz should be executed for the 2018 massacre at Marjory Stoneman Douglas High School.

FORT LAUDERDALE, Fla. – After Broward Circuit Judge Elizabeth Scherer dismissed 11 Broward County residents who responded to jury duty on April 5th, one of them took to Instagram.

“They called me in for this case I couldn’t do it. Death penalty thing. Sorry just cant nope,” the Instagram user wrote on the Local 10 News post’s comment section.

The prosecution and the defense mentioned the Instagram post in court on Wednesday. They were arguing about the search for the 12 jurors who would have to decide if Nikolas Cruz should be executed for the Marjory Stoneman Douglas High School massacre.

Scherer reversed her decision to restart jury selection and lose about two weeks of work. It was one of many delays. Some of them are because of the coronavirus pandemic. The families of the victims have been waiting for justice for more than four years.

Cruz, was 19 years old when he arrived at his former school on Feb. 14, 2018, armed with an AR-15 assault rifle. He admitted to shooting 34 people — 17 died. In October, Cruz, now 23, pleaded guilty to 17 counts of murder and 17 counts of attempted murder.

Since it’s a death penalty case, the 12 adults selected to serve as jurors must eventually vote on whether or not they think Cruz should be executed. If they disagree, Scherer’s only option will be to sentence Cruz to life in prison without parole.

THE 11 DISMISSED

Jury selection started on April 4. Prosecutors said there was an error on April 5 when Scherer dismissed the 11 potential jurors who communicated they would not follow the law. Attorneys expected the 11 to return on April 25, and when they didn’t, Scherer said there was “a miscommunication.”

On Wednesday, Scherer told attorneys the 11 she dismissed will be ordered to return to court on May 2nd. They will have to answer questions about the hardships that could prevent them from serving as jurors from May to September.

The defense in its written response cited an example of someone who could have been a possible juror for this case if they just had the opportunity to unpack their views.

That person posted a comment on Local 10′s Instagram page that read, “They called me in for this case. I couldn’t do it. Death penalty thing. Sorry just can’t. Nope.”

There are rules that potential jurors may not read or talk about the case, but that rule does not apply to excused jurors.

The defense argued that they still want the originally proposed remedy of the 11 jurors being brought back in for questioning before they are stricken.

In a motion filed on Wednesday, the defense claimed that if Scherer didn’t reverse her April 25th order to restart the jury selection process, the proceedings had to conclude.

“If this Court does not intend to reverse its order striking all previous panels, and further does not intend to make an attempt to return the 11 improperly excused jurors to court, the State must be barred from seeking the death penalty and the proceedings must conclude,” the defense wrote.

In response, Scherer reversed her decision and confused the prosecution. She said she was dismissing the motion “as premature.”

The defense alleged Scherer’s order violated double jeopardy, the law that protects Cruz from being subjected to a second trial for the same offense. Prosecutors argued there wasn’t a double jeopardy issue because a 12-member jury had not been sworn in. 

“Their argument is that not only would double jeopardy prevent the state from seeking the death penalty, but the overall principle of due process and the way this phase has played out and some of the actions of the state would prevent them from seeking the death penalty,” legal analyst David Weinstein said.

TRACKING JURY SELECTION

First two weeks: April 4 | April 5 | April 6 | April 7-8 | April 9 | April 10 | April 11 | April 12 | April 13 | April 14 | April 15 | April 18 | April 19 | April 25

  • 243 potential jurors said they didn’t have hardships
  • Scherer dismissed 11 potential jurors on April 5

Three days: April 25 | April 26 | April 27

  • 155 jurors said they didn’t have hardships

May 2

  • The first 40 of the 243 potential jurors to return for the second round of jury selection
  • Attorneys will get to question the 11 potential jurors who were dismissed on April 5th about hardships.

6 p.m. report

Broward Circuit Judge Elizabeth Scherer reversed her decision to restart jury selection and lose about two weeks of work. It was one of many delays. Some of them are because of the coronavirus pandemic. The families of the victims have been waiting for justice for more than four years.

12 p.m. report

Defense attorneys are asking a Broward County judge to drop the death penalty case against Nikolas Cruz.

LEGAL EXPERTS’ OPINIONS

Attorney David Weinstein, who is not involved in the case, said he has been following the jury selection process closely and the defense has more options. If Scherer re-affirms her decision, Weinstein said the defense could ask for “a stay,” an action to stop a legal proceeding.

If Scherer denies the “stay,” Weinstein said the defense then could file an application to the Fourth District Court of Appeals challenging the order. If the court of appeals grants the “stay” that would halt the entire proceeding, he said.

“This is one of those issues that arise in the middle of a case where a decision needs to be made as soon as possible so an error that may have occurred doesn’t get compounded any further,” Weinstein said.

Robert M. Jarvis, a Nova Southeastern University law professor, has experience in maritime and international law. He also has expertise in gaming law and the Florida Constitution. He said he too has been following the jury selection process closely and Scherer’s lack of experience shows.

“On the one hand, you can certainly credit her for keeping an open mind and for giving the parties a chance to come back and to argue,” Jarvis said. “On the other hand, while trying to push forward while this issue is hanging out there, she really does further put this case in jeopardy and further provides grounds for an appeal down the road.”

Jarvis said it is clear the prosecution is right to claim Scherer made an error.

“Obviously, there is no way to correct the error so what we are now talking about is what is the best way to mitigate the error,” Jarvis said.

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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.