FORT LAUDERDALE, Fla. (AP) — Public defenders representing Florida school gunman Nikolas Cruz attempted to withdraw from his death penalty trial Monday after the judge ordered them to proceed with jury selection, though one member of her team of five is ill with COVID-19.
District Judge Elizabeth Scherer denied the retraction motion from Cruz’s lead attorney Melisa McNeill, who said she could return Monday afternoon with a motion to dismiss the judge from the trial as unfair.
The defense also filed a motion to indefinitely delay Cruz’s trial, saying the May 24 school shooting in Uvalde, Texas, which killed 21 people, was stirring emotions in Broward County resurrected the murder of 17 by Cruz at Marjory Stoneman Douglas High in Parkland on February 14, 2018. They said the shooting is currently making it impossible for him to get a fair trial. Scherer did not decide on this application.
Judge Scherer and McNeill fiercely disagreed Monday over the judge’s insistence that jury selection proceed without the presence of Casey Secor, a South Carolina death penalty defense specialist who is assisting McNeill. Scherer said Secor could follow the proceedings via video link and communicate with McNeill by phone or text message.
Scherer accused McNeill of attempting to deliberately ineffectively advise Cruz by saying her team would not participate without Secor. At one point, Scherer interrupted the hearing and urged McNeill to consult with the Florida Bar Association about what penalties she might face if she and her team refused to attend. She said four attorneys present in the courtroom for Cruz was enough.
“We’re going ahead,” said Scherer.
But McNeill told the judge she was the one who created grounds for a successful appeal against an ineffective defense attorney by insisting that jury selection proceed without Secor, who McNeill said had particular expertise in the area. McNeill said that more than half of successful death penalty appeals involve problems with jury selection. If Cruz is sentenced to death, a successful appeal would lead to a retrial in a few years.
“The families of these (victims) do not need to return to this courtroom,” McNeill said. She also said that Scherer’s threat to sanction her created a conflict between her obligation to provide Cruz with the best possible defense and her obligation to her career and family not to jeopardize her license to practice law.
The prosecutors found themselves in the middle. They originally agreed with the defense to defer jury selection until Secor returned, but then told the judge she had a sound legal basis if she chose to proceed without Secor. Scherer then adjourned the court proceedings until later Monday afternoon.
Cruz, 23, pleaded guilty to 17 counts of first-degree murder in October. The court has been trying for two months to select 12 jurors and eight alternates for a four-month trial that will determine whether he should be sentenced to death or life in prison without parole.
Jury selection, originally due to be completed by mid-May, has slowed, including a two-week delay when McNeill was ill with COVID-19.
An initial pool of approximately 1,800 potential jurors was reduced from 3 to approximately 300 with the Phase 2 trial. After being simply asked in Phase 1 if their work and life would allow them to serve four months, in Phase 2 it is now the prospective jurors who are asked their opinion on the death penalty and whether they can be fair to Cruz.
Phase 3, whenever this begins, would involve individualized interviews. Scherer hopes to have 150 potential jurors for this phase, but at the moment only 35 have left Phase 2 and about 80 have been rejected.
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