The Parkland mass shooting trial became the scene of a tense standoff Monday pitting the defense, missing a critical team member due to COVID, against a Broward judge who has grown openly tired of delays that have pushed jury selection into its third month.
Defense lawyers asked Broward Circuit Judge Elizabeth Scherer to disqualify herself from the case against school shooter Nikolas Cruz on Monday after the judge ordered jury selection to resume even though the defense is missing one of its attorneys. The attorney, Casey Secor, was brought in specifically to assist the team at this stage of the proceedings.
Scherer denied the motion, but that came after the defense threatened to withdraw from the case.
Even prosecutors urged the judge to give the defense the one-day delay it was seeking, just to preserve the progress that’s been made on the case so far.
At the heart of the dispute was the absence of Secor, who was diagnosed with COVID last week and is at home following CDC quarantine recommendations.
Melisa McNeill, the lead defense lawyer for the confessed gunman, said Scherer’s order mandating her participation in jury selection represented a conflict of interest — McNeill believes she would not be protecting her client’s rights if she followed the judge’s order, but the attorney threatened her own freedom, a possible contempt ruling, and the loss of her job if she refused.
Scherer never threatened to hold McNeill in contempt, but she said McNeill would be violating professional ethics if she failed to comply with the order.
Secor, McNeill said, is “a critical member of the [defense] team,” brought in as a specialist in jury selection in capital cases. Questioning potential jurors about their views on the death penalty without Secor’s participation would be depriving the defendant of the effective assistance of counsel, McNeill said.
Scherer and prosecutors initially disagreed, noting that McNeill has experience in death penalty cases and that there are three other members of the main defense team, not counting supporting attorneys who are watching proceedings through a live video feed.
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But when it became clear the defense was digging in its heels, threatening to withdraw from the case and moving to disqualify the judge, prosecutors moved to save the trial “in an abundance of caution,” said Assistant State Attorney Carolyn McCann.
Scherer was reluctant. “Where do you suppose that it ends?” she asked.
But minutes later, the judge agreed to screen 29 potential jurors for hardships, saving the death penalty questions for Secor’s eventual return.
It remained unclear what would happen if Secor was ill on Tuesday and Scherer remained unwilling to delay the case. When jury selection began on April 4. potential panelists were told the case would likely begin in the middle of May. That start date was eventually pushed to June 21, which appears increasingly unlikely. Jurors are now being told the trial will last into October.
So far, only 35 potential jurors are scheduled to return for the final phase of jury selection, with hundreds left to screen through the second phase. Phase two weeds out jurors whose death penalty views, pro and con, are too fixed to ensure a fair trial for the defendant. The final phase addresses what jurors have heard about the case and other general questions that could expose bias.
Once the third phase is complete, 20 jurors will be chosen to hear the trial — 12 to sit on the jury, and eight to serve as alternates to step in if one of the 12 has to depart for any reason. The jury will be tasked with deciding whether the defendant, who has already pleaded guilty, should be sentenced to death or life in prison.
Rafael Olmeda may be reached at email@example.com. Call or text him at 954-356-4457. Follow him on Twitter @rolmeda.