Lawyers for Nicholas Cruzthe admitted school shooter in Parkland, Florida, filed a motion on Friday — then filed an edited version of virtually the same document on Saturday — to ask the judge Elizabeth Scherer to disqualify himself from presiding over proceedings that could result in the death penalty for Cruz.
Scherer chastised Cruz’s defense attorneys for closing their case Wednesday without calling about half of the witnesses who were scheduled to testify on the defendant’s behalf.
This tactical decision ended the defense part of the case much earlier than expected.
The decision stunned the judge, who then asked prosecutors if they had any witnesses available to testify on Wednesday.
The state responded that it was expecting 40 more defense witnesses, so no one was ready to speak.
The defense originally promulgated an 80-person witness list for the penalty phase of a trial surrounding the 2018 mass murder at Marjory Stoneman Douglas High School.
“We don’t play chess,” the increasingly furious judge told the defense.
“I just want to say this is the most unwarranted and unprofessional way to judge a case,” Scherer continued – again to the defense. “You all knew that, and even though you only made your decision this morning, to have 22 people, plus all the staff and every lawyer in court, wait like it’s some kind of game – now I We gotta send them home. The state isn’t ready. They won’t have a witness ready. We’ve got another day wasted. I just – I – honestly, I’ve never experienced a level of lack of professionalism in my career. It’s unbelievable.”
cruz avocado Melisa McNeill from the Broward Public Defender’s Office stood up on behalf of the defense.
“I’ve been practicing in this county for 22 years,” McNeill said – but Scherer cut her off.
“You know what, I don’t want to hear it,” Judge said.
“Well, Judge, you are publicly insulting me in front of my client, and I think I should be able to defend myself,” McNeill replied.
“You can do that later,” Scherer said. “You can do your case later, but you insulted me the whole trial, so – blatantly. Take off your headphones. Argue with me. Storm out. Arrive late intentionally if you don’t like my decisions. So, quite frankly, this is long overdue, so please sit down.
The jury was then ushered into the room; the defense then formally rested before the panel.
Scherer then drew the jury’s attention to the timeline of events in a way that further upset the defense.
“So we didn’t expect the defense to be resting today; therefore, the state is not ready to pursue the rebuttal case until the 27th,” Scherer told the jury. “If I had known earlier that this was going to happen, I would have – I would not have dragged you all here.”
It was a tough ending for the defense case.
The defense’s written motion to disqualify Scherer hit back at the judge by citing the preamble to the Sunshine State Code of Judicial Conduct. The required passage reads as follows:
Our legal system is founded on the principle that an independent, fair and competent judiciary will interpret and enforce the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, should respect and honor judicial office as a public office and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of fact and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
The motion noted that Cruz had pleaded guilty to 17 counts of first degree murder and 17 counts of attempted first degree murder. The only legal question for the jury is what the sentence should be: jail or death.
“This Court’s comments about the lead defense attorney on September 14 are [sic] the zenith of the cumulative disdain the Court has publicly expressed,” the defense wrote.
The defense said Scherer’s criticism of the timing came after the judge ordered the parties to return to court to deal with “all issues” related to the case; the defense said it was trying to file multiple briefs into evidence when Scherer lashed out over the lack of live testimony.
The defense argued that Scherer should not have “blamed” the defense “for the inconvenience of the jury” in this process.
Cruz’s attorneys also accused Scherer of “undermining the defense by insinuating to the jury that the defense failed to provide the state or the court with information they should have had in advance and that in as a result, they appeared in court unnecessarily”.
“This is patently untrue,” the defense document continued. “The defense had absolutely no legal obligation to inform the state or the court in advance of its intention to close its case. In addition, the jury must be present for the defense to rest. Finally, the Court bound itself to the State when it indicated “we had not anticipated” then “therefore, the State is not prepared”. Essentially, the court blamed the defense and gave the jury an excuse for the state’s inability to move forward for nearly two weeks.
The result, the defense claimed, is that Scherer “caused Mr. Cruz to fear that the Court was biased against him and his lawyers and that he would not receive a fair and impartial trial in the future.”
“The Court has now revealed that its animosity toward the lead defense attorney is long-standing and has infected this entire trial,” the filing adds.
The defense then distinguished two distinct scenarios. While defense attorneys said they were used to losing factual and legal motions in various other proceedings, attorneys said they were not used to being the subject of feelings of “long-standing and pervasive” animosity from a judge. As for the latter, the defense accused Scherer of having rendered decisions based, essentially, on hatred.
“Mr. Cruz has reasonable grounds to believe that the decisions of the Court were influenced by his adverse sentiments that do not relate to the legal issue before the court,” the motion reads. “Essentially, what the Court felt throughout this trial, and has now stated in the record, has corrupted this trial and should compel the granting of both a mistrial and a recusal so that an impartial jurist can properly try this case without prejudice Mr. Cruz suffers in this procedure.
The defense then cited a long list of incidents of so-called “blatant hostility” by the judge.
“The Florida Supreme Court held that”[t]The attitude of the judge and the atmosphere of the courtroom must indeed be such that whatever the accusation brought against a litigant. . . [the litigant] can approach the bar with the assurance that he [or she] is in a forum where the judicial ermine is all it characterizes, purity and justice,” the defense reminded Scherer.
The quoted passage does indeed appear in a myriad of Florida Supreme Court cases.
An affidavit from Cruz himself is attached to the motion.
In it, Cruz said she was a court witness because she “repeatedly insulted my attorneys throughout the trial and made me believe that she was biased against me and my attorneys.”
“I won’t get a fair trial,” Cruz said more bluntly. “I do not believe that the judge will carry out her duties and in an impartial manner.”
Cruz further stated that Judge Scherer also exhibited numerous “negative and derogatory non-verbal actions”, “including rolling her eyes when my attorneys speak or wish to speak” and “turning her head in a dismissive manner when my lawyers speak or try to speak.
Cruz, a former student, attacked Marjory Stoneman Douglas High School in Parkland, Florida on February 14, 2018. In pleading guilty, he admitted to arming himself with a semi-automatic rifle, killing 17 people and injured several others. The state refused to budge on the death penalty, paving the way for the current phase of the case.
Cruz’s full motion and attached affidavit are below:
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