FORT LAUDERDALE, Fla. (AP) — Circuit Judge Elizabeth Scherer has been assigned the case of a former Florida student who shot and killed 17 people in 2018 despite never overseeing a death penalty trial or a lawsuit with a lot of publicity.
His assignment to the Nikolas Cruz case was randomly done by a computer program that disregarded experience or the fact that no mass shooting in the United States of this magnitude had ever been brought to light. before the courts. The random selection process is used in much of Florida, but not in some other states.
Jury selection is underway in Cruz’s trial for the massacre of 14 students and three adults at Marjory Stoneman Douglas High School in Parkland on Feb. 14, 2018. And every decision Scherer makes is scrutinized, at least in part. , through the prism of how she was subpoenaed and her inexperience — especially compared to the case’s seasoned prosecutors and defense attorneys.
Supervising the Cruz trial would be stressful for the most seasoned lawyer; serious mistakes that hurt Cruz’s case could result in the death sentence being overturned on appeal. That would likely mean a new trial years from now, which would reopen emotional scars for families and the community.
For Scherer — a 45-year-old judge who was appointed to the bench in 2012 after serving as a midlevel prosecutor in Broward County — it’s likely to be even tougher. Scherer has never known the spotlight of a momentous affair. Prosecutors and defense attorneys said she made a serious mistake last month when she fired 11 potential jurors before letting lawyers question them.
Scherer also expressed frustration with the length of an upcoming hearing on whether defense experts can testify that Cruz’s brain was damaged as a result of his wife’s alcohol abuse. biological mother. The judge said she thought it should take a day or two; the lawyers, sounding exasperated, said a week was needed.
“The Cruz case shows what happens when an inexperienced judge handles a high-profile death sentence case,” said Nova Southeastern University law professor Bob Jarvis. “Any lawyer would have found this a difficult case to handle, given the excessive publicity, but a highly trained judge would probably have done better – that is, kept his cool, avoided obvious mistakes and gave the defense fewer grounds for appeal.”
Scherer declined to comment, which is usual with judges. In court, she noted that she would spend hours at night and on weekends researching difficult legal or scientific issues before making decisions. Chief Justice Jack Tuter also declined to comment.
Bruce Rogow, a well-known Florida defense and constitutional attorney, said Scherer handled the case well.
“Judge Scherer has already demonstrated sensitivity to the nuances of jurors that are critical in such proceedings,” Rogow said. “She was a prosecutor, she’s been a judge for a decade, she’s smart. She’s careful. That’s all you can ask of any judge. No judge wants this kind of case, but when a judge is called upon to preside over such proceedings, it is important that the public understand the onus.
But Bill Gelin, a Fort Lauderdale defense attorney who writes for a Broward Courthouse News blog, said Tuter should have ditched the haphazard process and appointed a more experienced judge or brought in the prosecutors and attorneys. defense to agree on one.
“It’s not a Scherer problem; it’s a CJ issue,” Gelin said. If Scherer makes a mistake that results in a new trial, he said, “it will throw salt on the wounds” of the families of the victims.
In other states, county court systems similar in size to Broward do not leave judge assignments strictly to chance.
For example, in the Santa Clara County, California, San Jose home, the criminal division supervising judge assigns cases “taking into account the complexity of the case, judicial availability, experience , knowledge and skills.
In Queens, New York, and throughout New York State, judges are randomly assigned, but if there are extenuating circumstances such as notoriety or complexity of a case, the court’s administrative judge may reassign it.
Cruz, 23, pleaded guilty in October to 17 counts of first-degree murder and 17 counts of attempted murder for the 2018 Valentine’s Day attack. The 12-member jury that will ultimately be chosen will decide whether factors aggravating factors such as the number of casualties and Cruz’s planning and cruelty outweigh mitigating factors such as his ongoing mental and emotional problems, his possible sexual abuse, and the death of his parents.
If even a juror votes for life without parole, that will be the sentence given to the former Stoneman Douglas student. The trial is expected to last four months after the selection of a jury.
The computer that handles Broward County’s criminal cases assigned Cruz to Scherer shortly after the shooting. The system ensures that judges have caseloads of generally equal size and complexity, but otherwise distributes cases haphazardly. It also prevents the possibility of cases being assigned to specific judges for a preferred outcome.
By the time she was assigned to the case, Scherer had been a judge for six years, and her biggest trials were two second-degree murders and two manslaughters, according to a defense filing. His name rarely appeared in the South Florida Sun Sentinel, Broward’s newspaper.
But Scherer quickly planted his flag. Shortly after the shooting, when she was unavailable, the defense asked another judge for an emergency order, which he granted. Scherer overruled it and ordered that all matters except search warrants be heard only by her.
She lambasted two Sun Sentinel reporters for releasing a sealed school file of Cruz that they obtained legally. She threatened to tell the newspaper what it could and could not print, but never did. It would have been unconstitutional, the lawyers said.
The prosecutors and defense attorneys in the case were of course not designated by computer. Broward State’s Attorney Mike Satz and then-public defender Howard Finkelstein turned to their best, most experienced lawyers.
For Satz, that included appointing himself as lead prosecutor. He retained that position even after stepping down after 44 years in early 2021, during which he personally prosecuted most of the defendants charged with the murder of a Broward police officer. He is also Scherer’s former boss.
Florida regulates who can be appointed to represent death row defendants. Both lead counsel and co-counsel should have criminal law and trial experience and be trained in capital case procedures.
Finkelstein, who also stepped down in 2021, has appointed Melisa McNeill to lead Cruz’s team. A deputy public defender for two decades, McNeill has represented 17 murder suspects at trial, including in two death penalty cases.
David Weinstein, a Miami criminal defense attorney and former prosecutor, said both sides should use their advanced experience to educate Scherer, not take advantage of her.
“While each side will seek to advance its position, its obligation, particularly in criminal cases, is to ensure that the law is upheld,” Weinstein said.