FORT LAUDERDALE, Fla. – The sudden end of the defense case in the mass shooting in Parkland this week drew criticism from and from the presiding judge, temporarily overshadowing the biggest question in question – was enough evidence presented to convince a jury to the defendant to spare life?
It’s impossible to say for sure – juries are notoriously unpredictable. But at least one expert, and some observers at the trial, say they wouldn’t be surprised if the jury in the Marjory Stoneman Douglas mass shooting case showed mercy to noted gunman Nikolas Cruz.
“I would much rather be the defense than the prosecution at this point,” said Bob Jarvis, a law professor at Nova Southeastern University. The state must convince 12 jurors that Cruz should be sentenced to death, he explained. The defense only needs one to say no. With one vote in his favor, Cruz would be sentenced to life in prison.
Jarvis predicted that the defense would actually prevail. The overwhelming evidence of guilt and premeditation, the “horrific, abominable and cruel” acts that resulted in 17 deaths, and the mental anguish of wounded students who knew they were going through their final moments may well be offset by acknowledgment that the shooter suffering from mental disorders that were long recognized but never adequately addressed.
The defense called 26 witnesses over 11 days to present its case, focusing on Cruz’s birth mother’s alcohol and drug abuse while pregnant with him, and followed it up with the repeated, inadequate, and ultimately failed attempts. from his adoptive mother to help deal with his increasingly violent outbursts.
Fetal alcohol spectrum disorder was identified as the most likely cause of his lifelong struggle with mental illness, according to defense experts.
“This jury has three or four people who have experience with mental health issues,” Jarvis said. “He had a bad break from the start. I’ll be amazed if this jury decides to reduce the death penalty.”
Support for that view comes from more than just the typical anti-death penalty proponents who would never choose execution over life imprisonment.
Fort Lauderdale jeweler Brian Keno, who describes himself as a conservative death penalty supporter who boasts of his support for the Second Amendment right to bear and bear arms, said he couldn’t imagine sentencing Cruz to death after hearing the defense.
“I don’t know if mercy is the right word,” Keno said. “It’s not like a Ted Bundy situation where he did this over and over at different times and in different places. The boy had serious psychological problems. He never had a chance. It should never have come to the point where he got the gun.
“I couldn’t push the button,” Keno said.
Each juror who upholds the death penalty would have to do so 17 times, once for each victim. And while the pressure to accept the death of at least one person will be high, Jarvis suggested holding on with every vote would become easier.
Defense attorneys initially seemed to indicate they would call nearly 80 witnesses, so few expected the defense team to rest after the 26th. Prosecutors will begin presenting a rebuttal case on September 27.
Broward Circuit Judge Elizabeth Scherer raised eyebrows with a blistering critique of the defense team. Experts said they could sympathize with the judge’s frustration, though they were unable to defend her outburst.
“We’re going to be talking about this in law school for years to come,” said Jarvis, who criticized Scherer for letting her emotions get the better of her. Scherer is expected to rule Monday on a motion to get her out of the case.
In a typical case, prosecutors and lawyers telegraph the broad outline of their plans, including how long they expect their case to last and how many witnesses they will call. But that courtesy cannot be taken for granted, and the mass shooting process in Parkland has never been a typical case.
“When you’re dealing with a case of this nature, with 22 people on the jury, you want to know what’s going to happen. You always want to be prepared,” said retired Broward judge Paul Backman, who has handled numerous death penalty cases. “Lawyers like to know which witnesses are being called so that they can be prepared for that witness that day.”
Defense attorneys in the Cruz case had accused a prosecutor a week earlier of contacting and attempting to intimidate a witness, though they had not filed a formal complaint with Scherer. The episode resulted in defense attorneys being less open about which witnesses to call next, culminating in the decision to drop their case without a word.
Backman called it “bad form” that seemed intended to provoke the judge into a response that could form the basis for an appeal.
But, Backman added, a death penalty trial is ultimately hostile, and the defense is under no obligation to make the job easy for prosecutors or judges.
“They have no obligation at all,” he said.