FORT LAUDERDALE, Fla. – Juror summons have been issued for the 11 prospective jurors who the defense had argued were prematurely excused on April 5th after they said they could not ‘follow the law’ before attorneys had a chance to question them.
The death penalty case is in its penalty phase after confessed Parkland shooter Nikolas Cruz entered guilty pleas in October for shooting and killing 17 Marjory Stoneman Douglas students and staff on Valentine’s Day 2018. The process of selecting a 12-member jury that can be fair and impartial when it comes to sentencing is underway.
The summons is dated April 28, one day after the Judge reversed a decision she had made on Monday to grant a state motion without prejudice to strike the first two weeks of jury selection to correct the underpinning procedural issue.
The defense had argued on Wednesday that the state’s motion wasn’t ‘ripe’ and they still wanted to speak with the 11 jurors. “My ruling was premature,” stated Judge Elizabeth Scherer on Wednesday, “I am going to dismiss the state’s motion as premature, I am going to bring those 11 individuals back for the purpose of asking them whether they have a hardship in serving and we will take it form there.”
For now that means the more than 200 potential jurors who cleared phase one focused on hardships during the first two weeks of jury selection remain in the jury pool for this case.
The summons tells the prospective jurors to arrive to the courthouse on Monday and added that “failure to comply with this summons may result in contempt of court
charges being filed against you.”
The procedural issue began on the second day of jury selection, April 5, when the Judge presiding over the case veered from phase one’s focus on hardships and began to ask some of the prospective jurors if they could ‘follow the law’, excusing 11 who said they could not before attorneys were able to speak with them.
Both sides called that an error. On April 6th both sides agreed to a remedy that those 11 prospective jurors be brought back for questioning. It was an option that at the time legal analysts told Local 10 News presented its own challenge because the instructions to not read or talk about the case don’t apply to excused jurors.
Assistant Public Defender Melisa McNeill telling the Judge on April 6 “The defense has a request, or rather a suggestion for the Court, that you do not discuss ‘follow the law’ in this procedure and that we simply stick to issues related to….,” the Judge interjecting with “Oh trust me, I’ll never ask that again.”
On Monday April 25 the 11 jurors in question were not in the courtroom as expected. The Clerk of Courts Office confirmed a jury summons was never issued, the Judge called it a ‘miscommunication’. That is when the state filed its motion to strike the first two weeks of jury selection arguing the best way to correct the issue was to scrap the first six days of jury selection. “There are too many issues at this point,” Assistant State Attorney Carolyn McCann told the Court, “it is better to start fresh.”
Assistant Public Defender McNeill objected calling their motion premature and saying they were fine with the Judge’s suggestion of bringing those 11 prospective jurors back. The Judge granted the state’s motions while giving the defense until Wednesday to present their full objection. “I am giving them an opportunity,” the Judge said, “to change my mind.”
The Judge also telling both sides, “I don’t believe there was an error, you all do, so I am doing it for you all okay?”
“I think what she is saying is that she doesn’t believe she committed reversible error,” said NSU Professor Bob Jarvis, “is this reversible error?, probably not, but it does shake your confidence that on something as basic as questioning potential jurors that the Judge made what is very much a rookie mistake. And no matter what the Judge does the error is there and it will potentially provide the basis for an appeal down the road which means we could be doing this all over again.”
“I doubt that many judges on the face of the planet have judicial experience with this kind of a case,” said legal analyst David Bogenschutz, “and if you look across the country very few cases have actually been to trial on these multiple killing cases.”
Before being appointed by Gov. Rick Scott in 2012 Judge Scherer was an Assistant State Attorney (ASA) with the Broward State Attorney’s Office working in the ‘Career Criminal Unit’ (CCU) which prosecutes ‘violent, repeat offenders.” CCU prosecutes, a spokesperson for the Broward State Attorney’s Office explained,” “some second-degree murder and manslaughter cases as assigned by the State Attorney.” As an ASA Scherer did not prosecute first-degree murder cases they said. Now as a judge, she is presiding over a 17-count capital murder case.
“There is nothing in her background that prepared her to handle this case,” said Jarvis, “I want to emphasize that no judge would have handled this kind of case flawlessly, there are too many pitfalls. I think it would be very fair to say we would be having a better process to date if we had a more experienced judge. It is very clear that Judge Scherer is learning as she goes and is making mistakes that a more experienced judge would not make. She’s in over her head.”
In its written response Wednesday to the state’s motion the defense telling the judge unless she reverses her ruling from Monday they believe that legally the death penalty option is off the table.
The defense argued granting the motion over their initial objection “violates double jeopardy and due process.” Double jeopardy here meaning the state can’t seek the death penalty any longer. The state said in its motion “given that a jury has not been sworn in this case, there is no double jeopardy issues.” The defense citing case law with a different interpretation and adding that “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 the court, the State must be barred from seeking the death penalty and the proceedings much conclude.”
The defense cites an example of someone who could have been a possible juror for this case if they just had the opportunity to unpack their views. One of the 11 prospective jurors at issue, on the day the court excused them prematurely they said, posted a comment on Local 10′s Instagram account that read: “They called me in for this case I couldn’t do it. Death penalty thing. Sorry just cantnope.” The defense said they still want the original remedy restored before all stricken, otherwise they said, they believed the state could no longer seek the death penalty without violating Nikolas Cruz’s rights to due process.
“Their argument is that no only would double jeopardy prevent the state from seeking the death penalty,” legal analyst David Weinstein said, “but the overall principle of due process and the way this phase has played out would prevent them from seeking the death penalty.”
The defense claimed the state acted in bad faith by asking to strike the jury before the original remedy to bring them back played out and that the court acted in bad faith in aiding them. McCann telling the court that the defense mention of acting in ‘bad faith’ was ‘offensive’ ad ‘unprofessional’. The judge stating that while she was ‘not finding bad faith’ she would ‘dismiss’ the state’s motion as ‘premature’ effectively reversing the decision she made on Monday.
What remains unclear is what happens if all 11 prospective jurors in question do not appear in court on Monday despite being instructed.