Circuit Judge Elizabeth Scherer was assigned the case of a former Florida student who gunned down 17 people in 2018 despite never having overseen a death penalty trial or one with much publicity.
Her assignment to the Nikolas Cruz case was made randomly by a computer program that didn’t consider experience or the fact that no U.S. mass shooting of this magnitude had ever made it to court. The random selection process is used throughout much of Florida, but not by some other states.
Jury selection is now underway in Cruz’s penalty trial for the massacre of 14 students and three adults at Parkland’s Marjory Stoneman Douglas High School on Feb. 14, 2018. And every decision Scherer makes is being scrutinized, at least partly, through the lens of how she was assigned and her inexperience — particularly compared to the case’s seasoned prosecutors and defense attorneys.
Overseeing the Cruz trial would be stressful for the most-battle hardened jurist; serious errors that harm Cruz’s case could get a death sentence reversed on appeal. That would likely mean a retrial years from now, which would reopen the families’ and community’s emotional scars.
For Scherer — a 45-year-old judge who was appointed to the bench in 2012 after serving as a mid-tier prosecutor in Broward County — it will likely be even more difficult. Scherer has never experienced the spotlight of a capital case. Both prosecutors and defense attorneys said she seriously erred last month when she dismissed 11 potential jurors before letting the lawyers question them.
Scherer also expressed frustration at the length of an upcoming hearing over whether defense experts can testify that Cruz’s brain suffered damage as a result of his birth mother’s alcohol abuse. The judge said she thought it should take a day or two; the attorneys, sounding exasperated, said a week is needed.
“The Cruz case shows what happens when you have an inexperienced judge handling a high-profile death penalty case,” said Bob Jarvis, a Nova Southeastern University law professor. “Any jurist would have found this to be a tough case to handle, given the inordinate publicity, but a highly trained judge would likely have done better — i.e., kept their composure, avoided obvious mistakes, and given the defense fewer grounds for appeal.”
Scherer declined to comment, which is customary with judges. In court, she remarked that she will spend hours at night and on weekends researching any difficult legal or scientific issues before making decisions. Chief Judge Jack Tuter also declined to comment.
Bruce Rogow, a well-known Florida defense and constitutional lawyer, said Scherer is handling the case well.
“Judge Scherer has already demonstrated sensitivity to the juror nuances that are critical in such proceedings,” Rogow said. “She was a prosecutor, she has been a judge for a decade, she is smart. She is being careful. That is all one can ask from any judge. No judge wants this kind of case, but when a judge is called upon to preside over such a proceeding, it is important that the public empathize with the burden.”
But Bill Gelin, a Fort Lauderdale defense attorney who writes for a blog on Broward courthouse news, said Tuter should have scrapped the random process and assigned a more-experienced judge or got the prosecutors and defense attorneys to agree on one.
“This is not a Scherer problem; this is a chief judge problem,” Gelin said. If Scherer makes an error that causes a retrial, he said, “that will be pouring salt on the wounds” of the victims’ families.
In other states, court systems in counties of a similar size as Broward don’t leave judge assignments strictly to chance.
For example, in Santa Clara County, California, the home of San Jose, the criminal division’s supervising judge assigns cases “with consideration of case complexity, judicial availability, experience, knowledge and abilities.”
In Queens, New York, and throughout New York state, judges are assigned randomly but if there are extenuating circumstances such as a case’s high profile or complexity, the court’s administrative judge can reassign it.
Cruz, 23, pleaded guilty in October to 17 counts of first-degree murder and 17 counts of attempted murder for the attack on Valentine’s Day 2018. The 12-member jury that is eventually chosen will decide whether aggravating factors such as the number of victims and Cruz’s planning and cruelty outweigh such mitigating factors as his lifelong mental and emotional problems, his possible sexual abuse and his parents’ deaths.
If even one juror votes for life without parole, that will be the sentence imposed on the former Stoneman Douglas student. The trial is scheduled to last four months after a jury is selected.
The computer that manages Broward County’s criminal cases assigned Cruz to Scherer shortly after the shootings. The system makes sure judges have caseloads of generally equal size and complexity, but otherwise doles out cases randomly. It also prevents the possibility of cases being assigned to specific judges to get a preferred outcome.
At the time she was assigned the case, Scherer had been a judge for six years, and her biggest trials were two second-degree murders and two manslaughters, a defense court filing shows. Her name rarely appeared in the South Florida Sun Sentinel, Broward’s newspaper.
But Scherer quickly planted her flag. Shortly after the shootings, when she was unavailable, the defense asked another judge for an emergency order, which he granted. Scherer overruled him and ordered that all matters except search warrants would be heard only by her.
She blasted two Sun Sentinel reporters for publishing a sealed Cruz educational record that they obtained legally. She threatened to tell the paper what it could and couldn’t print, but never did. That would have been unconstitutional, lawyers said.
The case’s prosecutors and defense attorneys were not assigned by computer, of course. Then-Broward State Attorney Mike Satz and then-Public Defender Howard Finkelstein turned to their best, most-experienced lawyers.
For Satz, that included naming himself lead prosecutor. He kept that position even after retiring in early 2021, having spent 44 years in office during which he personally prosecuted most defendants charged with murdering a Broward police officer. He is also Scherer’s former boss.
Florida regulates who can be assigned to represent death penalty defendants. Both the lead attorney and co-counsel must be experienced in criminal law and at trial and educated on capital case procedures.
Finkelstein, who also retired in 2021, named Melisa McNeill to lead Cruz’s team. An assistant 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 their position, their obligation, especially in criminal cases, is to see that the law is followed,” Weinstein said.