FORT LAUDERDALE, Florida.
Lawyers for Parkland, Fla., school shooter Nikolas Cruz will have one goal when jury selection begins Monday: identify candidates who could give Cruz the single vote he needs to get a life sentence instead of the death for the 2018 murders of 17 students and staff. The process will involve a lot of educated guesses.
Court officials said perhaps 1,500 or more potential jurors could appear before Circuit Judge Elizabeth Scherer’s courtroom for several weeks as she, prosecutors and Cruz’s public defenders select 12 panelists, plus eight alternates, for his penalty trial. Those chosen must say they can put aside their animosity towards Cruz for the 2018 massacre at Marjory Stoneman Douglas High School and judge the case fairly. Potential jurors must also be available until September.
Cruz’s lawyers “shouldn’t even try to have a jury or a juror who doesn’t know about the case because it’s ignorance; you’d have to live under a rock,” Orlando defense attorney Mark O’Mara said. O’Mara rose to national prominence after his successful 2013 defense of George Zimmerman, who was acquitted of murdering black teenager Trayvon Martin. He’s not involved in the Cruz case.
Jury candidates who say they can be objective will complete a questionnaire that dives into their background and asks if they can handle viewing graphic evidence. They will then return in a few weeks for courtroom interviews, where they will have to say they can vote for the death penalty but also don’t think it should be mandatory for murder.
Cruz, 23, pleaded guilty in October to 17 first-degree murders, 17 attempted murders and one assault in prison, leaving the jury to decide only whether the former Stoneman Douglas student will get death or life without Conditional liberation.
Instead of deciding whether someone is guilty based on objective evidence, jurors sitting in this death sentence trial must answer a subjective question: Have prosecutors demonstrated that the aggravating factors – the number of deaths, the weeks of planning and the cruelty and horror of Cruz’s actions – do they outweigh mitigating factors such as his lifelong mental illness and the death of his parents? For Cruz to get the death, the jurors must all answer “yes”.
To get at least a ‘no’ vote, Cruz’s lawyers must show his path to the murders was not “100% purely personal intent,” said O’Mara, who has defended a dozen cases. capitals that ended with no death sentences handed down: “It’s going to be tough… Death is the default sentence in this case.”
The fact that no one who opposes capital punishment on principle can be selected for the jury eliminates some female, minority, religious and liberal candidates who could potentially be sympathetic to Cruz, said Geri Fischman, jury consultant for Miami and lawyer.
Whites strongly support the death penalty, a Gallup poll showed last year, while most blacks and Hispanics oppose it. The survey also showed that more women than men oppose capital punishment and only a quarter of liberals support the death penalty compared to 70% of conservatives. Broward County is a 2-1 Democrat.
Leaders of the Catholic Church, some Protestant denominations, and major rabbinical organizations in Judaism also oppose the death penalty on theological grounds, although many individual members support it in practice.
“Juries qualified for death are biased in favor of the prosecution,” Fischman said.
This won’t be the first time that Scherer, prosecutors and Cruz’s attorneys have begun choosing a jury for him. In October, Cruz was tried for assaulting a prison guard nine months after the shooting. Prosecutors wanted a conviction to use as an aggravating factor in their case for the death penalty.
Nearly 300 potential jurors were selected, 10 times what is typical in a Florida assault case. About half said they couldn’t judge Cruz fairly, and three women cried just seeing him. The other half said they could be fair, but the process ended with Cruz’s sudden guilty plea.
Until 2016, a Florida judge could impose the death penalty if the majority of jurors agreed. But after the Supreme Courts of the United States and Florida imposed a higher bar, the Republican-dominated legislature changed the law to require unanimity. This is the system used in 18 of the other 26 states where capital punishment is in effect.
This change gives Cruz a chance, but the composition of the jury is essential, note O’Mara and Fischman.
Prosecutors and defense attorneys can strike out at a potential juror if they are able to persuade Scherer that the person’s background or responses demonstrate an injustice. Cruz’s lawyers could challenge school employees, for example, or someone whose parent died at the hands of another.
Both sides receive 10 knockdowns for any reason except race or gender. Scherer said she may add more, given the notoriety of the case.
Fischman said that while advising the defense, she would not exclude any profession, age or economic group. Instead, she said she would look closely for “stealth jurors”: candidates who skew the answers to choose from so they can vote for death.
“Anyone who repeatedly tells you that they are going to be fair, that they have no bias, that they have no pre-existing opinion on this matter, is probably hiding something,” she said. “Someone who says they have no opinion on a shooting where innocent children were killed is not… frank.”
O’Mara said he may seek out racial minorities and jurors with relatives who have criminal charges because they may be “more aware of the inconsistencies and biases of the justice system.”
He said he would avoid accountants, engineers and others whose professions require “very specific” answers. These professionals use a mental scale to accurately weigh aggravating and mitigating factors — a battle Cruz cannot win with 17 dead victims, he said.
“When you get to that kind of analysis, you get away from what the defense wants: the humanity” of the jurors and the defendant, he said.
The bottom line: A case like Cruz has no certainty for the defense.
“You are, in effect, playing a juror – you just don’t know which one,” O’Mara said.