Explainer: What are aggravating factors and mitigating circumstances?

During this penalty phase in the Nikolas Cruz trial viewers will hear the court reference ‘aggravating factors’ and ‘mitigating circumstances’

FORT LAUDERDALE, Fla. – This trial starts in what is typically the second phase of a capital case.

That is because guilt was established in October when confessed Parkland school shooter Nikolas Cruz plead guilty to shooting and killing 17 Marjory Stoneman Douglas High School staff and students when he was 19 years old on Valentine’s Day in 2018.

His guilty plea set up the penalty phase that began with jury selection on April 4.

“In the penalty phase, we get into the character of the accused,” NSU Law Professor Mark Dobson told Local 10′s Christina Vazquez. “It really comes down to the question of does this person deserve life or does this person deserve death?”

Jurors in the penalty phase of the trial will be asked by the court to come to their decision after carefully considering the evidence presented at trial and weighing the aggravating factors the prosecution will present versus the mitigating circumstances the defense would like them to consider.

“This is not the traditional trial that we are all used to watching,” legal analyst David Weinstein told Vazquez. “Their client has committed the crime and admitted that he committed it, so what we will all be seeing here is the various aggravating and mitigating factors that each side is trying to convince the jurors exist.”

What is the difference between an aggravating factor and a mitigating circumstance?

Aggravating Factors:

“An aggravating factor is something that the state believes would make a juror vote in favor of the death penalty,” Weinstein said.

Instructions to the jury, in this case, explain that an aggravating factor is “a standard to guide the jury in making the choice between life and death, a statutorily enumerated circumstance that increases the gravity of a crime or the harm to a victim.”

According to Florida state statutes, aggravating factors can include that the defendant “knowingly created a great risk of death to many persons” and that the murders were committed in “a cold, calculated, and premeditated manner without any pretense of moral or legal justification,” or were “especially heinous, atrocious, or cruel.”

“One of the more compelling aggravating factors that the prosecution will focus on,” said Weinstein, “would be the premeditation that went into this mass shooting.”

The prosecution has listed more than 1,000 witnesses and is expected to present evidence, some of it graphic, as it works to meet its burden to prove an aggravating factor beyond a reasonable doubt.

Another aggravating factor is whether the defendant was “previously convicted” of another felony involving the “use or threat of violence to the person.”

Therefore, legal analysts anticipate in addition to presenting evidence of the 17 Marjory Stoneman Douglas staff and students Cruz plead guilty to killing, the prosecution may also present evidence related to the 17 hurt in the 2018 school shooting.

Weinstein says Cruz’s October guilty plea to a separate case, a caught-on-camera BSO jail guard attack from November 2018, nine months after the Parkland shooting, could also be leveraged as an aggravating factor by the prosecution.

Once the prosecution provides evidence that an aggravating factor exists, they can present victim impact evidence.

The jury will be asked to identify “each aggravating factor” they found to exist and must unanimously find that at least one aggravating factor has been proven beyond a reasonable doubt before the defendant is eligible for a death sentence.

If the jury “does not unanimously find at least one aggravating factor,” the statute explains, “the defendant is ineligible for a sentence of death.”

If they are unanimous that an aggravating factor exists, they will then individually weigh if the aggravating factors outweigh the mitigating circumstances to submit their sentencing recommendations.

The jury instructions read, “If you do not unanimously agree that the aggravating factor[s] [is] [are] sufficient to impose death, do not move on to consider the mitigating circumstances.”

Mitigating Circumstances:

A mitigating circumstance, Weinstein said, “is something that the defense believes would provide a reason for a juror to vote against the death penalty and in favor of a life sentence.”

The defense team will likely focus on Cruz’s background, age at the time of the offense, his childhood, mental condition, history of behavioral issues, and related medical documentation as they present evidence of the mitigating circumstances they want jurors to consider.

The defense has more than 300 listed witnesses which include a range of mental and behavioral experts.

During a pre-trial hearing in February the defense had already telegraphed its plans to present mental health-related evidence as mitigating circumstances for the jury to consider from multiple personality disorder, neurological impairment, motor function delays, multiple deficits in adaptive functioning, brain damage, to extreme mental stress.

“The defendant is referring to another personality as ‘hatred’ and he’s the one who committed these crimes so that obviously could be a multi-personality defense,” Jeff Marcus, assistant state attorney, told Broward County Circuit Court Judge Elizabeth Scherer during the February hearing.

Related Link: “Discussion of Parkland shooter’s mental health: ‘Hatred’ one of personalities who committed crimes”

State statutes outline that mitigating circumstances can include that the capital felony was committed “while the defendant was under the influence of extreme mental or emotional disturbance” and that the defendant “acted under extreme duress.” Another mitigating circumstance includes the age of the defendant at the time of the crime and “any other factors in the defendant’s background that would mitigate against the imposition of the death penalty.”

Jury instructions explain that “unlike aggravating factors, you do not need to unanimously agree that a mitigating circumstance has been established.”

Weinstein anticipates the defense will present evidence “going back to what his mental status was at the time the incident occurred and not as he is sitting there in front of them. They will have to be careful,” he added, “because the emotions of these jurors are going to bleed over into their consideration and their deliberations. So the defense will have to attune these jurors to listen for what they believe will be the mitigating factors that suggest from their perspective their client is the one worth saving.”

Per the Florida Bar’s website, rather than needing to prove a mitigating circumstance “beyond a reasonable doubt”, the defendant “need only prove a mitigating circumstance by the greater weight of the evidence, which means evidence that more likely than not tends to prove” a mitigating circumstance exists.

Each juror during deliberations will be tasked with making “his or her own decision about whether a mitigating circumstance exists.”

A death sentence would be the outcome if all 12 jurors individually decide that the aggravating factors outweigh the mitigating circumstances.

That is because the jurors must be unanimous if choosing death. If just one juror decides the appropriate sentence is life in prison without parole, Cruz will receive life, which is the sentence he currently has after pleading guilty to the murders in October.

“Keep in mind, all the defense needs to do,” said Weinstein, “is to convince one juror that the appropriate penalty is life and not death and they have succeeded.”

Related Link: Meet the Jurors

Opening statements are scheduled for Monday.

The trial is expected to run four to five months.

About the Author:

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."