MIAMI — The defense team for Parkland school shooter Nikolas Cruz wants a judge to hold every single future pretrial court hearing in secret, arguing that more publicity will taint future jurors. One problem: the defense’s own expert, a consultant who studies the effect of publicity on jurors, admits he doesn’t think that such a drastic step is necessary.
“I didn’t recommend full closure,” consultant Bryan Edelman told a Broward judge during a hearing Tuesday.
The Miami Herald and a host of media outlets are objecting to the defense’s request, arguing that such an unusual step is overly broad and imperils the public’s right to monitor the criminal justice system, especially in such a high-profile case.
“Their own expert supports our position that the motion must be denied under Florida law,” attorney Dana McElroy, who is representing the Herald, told the judge.
The Broward State Attorney’s Office also objected, saying the defense can always ask for certain evidence in future hearings to be withheld from the public by using general language that won’t reveal too much, and by asking the judge to review the evidence in private. “This is an open-and-shut issue,” Broward Assistant State Attorney Steven Klinger said.
Broward Circuit Judge Elizabeth Scherer, who appeared skeptical of the defense’s request, didn’t rule Tuesday, but said she will make a decision next week.
The 22-year-old Cruz is awaiting trial for the Feb. 14, 2018, massacre at Marjory Stoneman Douglas High that killed 17 people, and wounded 17 others. He is facing the death penalty if convicted in what remains the state’s worst-ever school shooting.
In the past, the Broward Public Defender’s Office has said Cruz would immediately plead guilty in exchange for life in prison. The Broward State Attorney’s Office, under longtime top prosecutor Mike Satz, has pressed ahead in seeking death, as has Harold Pryor, who was elected to the post last year.
As they have been across the state, legal proceedings in Cruz’s case have been complicated and delayed by the coronavirus pandemic. No trial date has been set.
The Parkland massacre sparked a wave of activism among MSD students and scrutiny on American gun culture and laws. In response to the shooting, the Florida Legislature passed a law restricting the sale of certain firearms to people under the age of 21.
Coverage of the Cruz case has generally been more muted over the past two years, eclipsed by a wide array of international stories, like the presidential election, the COVID-19 pandemic and the Surfside condo collapse that killed 98 people.
Still, last month, the Public Defender’s Office asked the judge to close all future pretrial hearings, arguing the ”press will continue to be active and aggressive in the coverage of all events and proceedings in this case.”
Defense lawyers argued that coverage of key hearings — like whether the court should allow Cruz’s confession to be seen by jurors, or over the constitutionality of the death penalty — could taint a future jury pool in Broward County and harm his ability to get a fair and impartial trial.
“Included in these discussions of the evidence will be Mr. Cruz’s statements to the police, certain confidential health and education records regarding Mr. Cruz, photographs exempt from public records release, and the medical examiner’s findings,” the Public Defender’s Office wrote in its request.
Florida courts are known for transparency — under long-standing case law, hearings are rarely closed to the public, especially in the criminal division. The public is also entitled to a wide array of evidence in the case, once it’s been made available to the defense. In the Parkland case, that’s included witness statements, 911 calls, police reports and limited portions of Cruz’s interviews with homicide detectives.
Judge Scherer previously restricted the ‘substance’ of Cruz’s confession, under Florida law, and it largely remains secret.
The Broward State Attorney’s Office said Cruz’s legal team “totally failed “ to demonstrate all future hearings must be closed. Lawyers representing the news media — including the Miami Herald, the New York Times, the Associated Press and TV news groups such as ABC, CBS and NBC — also objected.
The defense hired Edelman, a California trial consultant who runs a company called Trial Innovations. He admitted, in a deposition on Friday, that he did not think closing all proceedings was the right move, but instead called for a “targeted” approach for just the most sensitive hearings.
During Tuesday’s hearing, defense lawyer David Wheeler seemed to agree with Edelman, saying the defense chiefly wants hearings such as a motion to suppress Cruz’s confession closed. Still, he pressed ahead with the request to close all future pretrial hearings.
Edelman said that he examined hundreds of articles published in the Sun-Sentinel between 2018 and 2021, and many included details about Cruz that will never be introduced to a jury. Among them: that Cruz was known for killing animals, espousing racist and hateful language, and had been the subject of numerous warnings before the massacre.
Edelman pointed to studies over decades that contend that pretrial publicity has a negative impact on perception. “Overwhelmingly against the defendant,” he testified.
He also claimed that jurors will often say they will be impartial because it is a “socially desirable” response, but that voir dire, the practice of grilling candidates at length, doesn’t work. “It’s not a reliable tool to ferreting out bias,” Edelman said.
Lawyers for the media pointed out that Edelman has not surveyed actual Broward County residents — and future potential jurors — to gauge the effect of pretrial publicity.
“His testimony made clear that closure would not be effective in protecting the rights of the accused Mr. Cruz without being broader than necessary because much of the information sought to be shielded has already been made public,” McElroy said.
Attorney Deanna Shullman, who represents several TV networks such as ABC and CNN, also noted that the media is crucial to ensuring the public knows that lawyers are doing their jobs.
“Everybody thinks that access is about our ability to look at what the defendant did or a right to look at the evidence of his crimes,” Shullman said. “This is not at all what this is about. It is about the public’s right to oversee all the players in this process.”
