The selection of a jury to decide the fate of a confessed mass murderer has made little progress since it began April 4. The start of testimony has now been delayed until June 13, and the judge does not sound pleased.
“In what universe does it take, in any case, three months for jury selection?” Broward Circuit Judge Elizabeth Scherer asked of the lawyers.
For a case of such unprecedented notoriety and complexity, that is hardly too much time.
But a better question is this: In what universe does continuing with this trial make any sense at all?
The only issue is whether Nikolas Cruz should be sentenced to death or to multiple life sentences without parole for the massacre he inflicted at Marjory Stoneman Douglas High School in Parkland on Feb. 14, 2018.
His guilty pleas have left nothing else for a jury to decide. If only one juror refuses to vote for death, it will all have been for naught.
A unique case
The state of Florida has never had a criminal case of such infamy, difficulty and magnitude, nor any so potentially expensive. There are more than 950 potential witnesses. Conspiracy theories abound. The pretrial publicity has been so pervasive that it can be assumed every prospective juror knows about the case, and may even know someone who was involved or affected.
That makes it a monumental challenge to find 20 people — 12 jurors and eight alternates — whose minds appear to remain open on the question of life or death.
If they cannot be found in Broward County, the court would have to consider the costlier proposition of moving the trial elsewhere.
The penalty phase is still in the stage of identifying and excusing potential jurors — out of some 1,000 who have been summoned — who say they could not spare the months needed to serve, or who betray their emotions by weeping at the sight of Cruz at the defense table. Detailed questioning comes later.
Any mistake by Scherer — she has already made some and there will be more opportunities — can be the basis for years of appeals culminating in an order to do it all over again.
Cruz, a former student who had been barred from the campus, pleaded guilty to killing 14 students and three staff members and wounding 17 more people. He was 19 at the time.
At a minimum, his pleas mean 34 life sentences and no possibility of parole. He will die in prison. The only variables are how and when. Protecting society — the primary function of the criminal justice system — is fulfilled. That some of the victims’ survivors want him executed is understandable, but retribution must not be the controlling factor in a modern criminal justice system.
Former Broward state attorney Mike Satz, who indicted Cruz and is on contract in retirement to prosecute him, raises a larger question: If Cruz doesn’t deserve the death penalty, who does?
That’s a fair question, but it begs the validity of the death penalty itself. The justice system is capricious. Discretion affects every stage from arrest to prosecution to trial to sentencing. Some cold-blooded killers never go to death row while others whose crimes were impulsive rather than premeditated are sentenced to die.
The trauma continues
This case is exceptional. Beyond the millions of dollars in expense and the emotional burdens on so many witnesses, there will be trauma to the community and to the survivors of reliving, in anguishing detail, every moment of Broward County’s most tragic day, and of the many missed opportunities to prevent it. It has haunted the community too long already.
A death sentence is not inevitable. Cruz had been in and out of counseling and from one school to another for years, showing glaring evidence of emotional instability and potential danger. There were some 80 interactions with law enforcement and multiple other junctures in which he slipped through society’s cracks. The FBI ignored an explicit warning that he would be a school shooter. His entire life was a primal scream.
The defense is duty-bound to present these and other mitigating circumstances to the jury and will need to persuade only one juror that they overcome the state’s aggravating factors.
Mass murderers don’t often live to be tried. James Holmes is another who did. He killed 12 people, the youngest six years old, at a movie theater in Aurora, Colo., in 2012. He planned the shootings meticulously and jurors didn’t buy his insanity defense. But in 2016 he was sentenced to life because one or more jurors did not vote for death, and four years later Colorado became the 22nd state to abolish capital punishment.
“The death penalty cannot be, and never has been, administered equitably in the state of Colorado, " Gov. Jared Polis said.
That is also true of Florida.
Florida rules of court require that the lead defense attorneys in death cases have experience in other capital trials, but there is no apprenticeship rule for the judges other than a required instructional course. By random selection, the Cruz case is in the hands of a judge who had never presided over even a routine capital trial.
Judges’ decisions can be fertile grounds for appeals. Early on, Cruz’s defense objected for the record that Scherer showed favoritism to the prosecution. She has ruled that the jurors eventually chosen will be identified by name, not by number, potentially exposing them to dangerous community pressure. She will let the prosecution take the jury through the 1200 building, unused since the killings, over defense objections that it is unnecessary and inflammatory.
Scherer eliminated an entire panel of 60 prospective jurors after some of them became emotional on seeing the defendant. She released 11 prospective jurors out of a group of 60 who had answered “no” when she asked whether they could follow the law on death sentences, but she did not question each one of them as required. After the defense objected, she summoned them to return April 25 and conceded that she had made a mistake.
Even the most experienced trial judges can make reversible errors. The Cruz case is fraught with more such chances than in any previous Florida trial. Continuing it solely for the sake of a death sentence does not protect the public and makes no other sense.
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The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email to letters@sun-sentinel.com.
