This week we saw Nicholas Cruz, the infamous school shooter who killed seventeen people- children and teachers, and shot an additional seventeen people, at the school in Parkland, Broward County, plead guilty, which placed the case into the penalty phase in the Florida "dance with death" scheme for the death penalty.
Was the move a good one? None other than Roy Black (cue Star Wars storm trooper music, which is surely what prosecutors hear when Mr. Black strides into a courtroom for trial) opined in the DBR that the move was wrong. Rumpole of the Bailey famously said "never ever ever plead guilty." Mr. Black agrees. (Perhaps he has something to do with this blog? Nah. Highly unlikely).
Other commentators including the REGJB's own Phil Reizenstein have praised the move in the media, saying the the defense had no path to an acquittal and the plea allows the defense to argue at the sentencing phase that the defendant has remorse, and has accepted responsibility and pled to crimes mandating a life prison sentence. In the same Ovalle/Herald article Gail Levine, late of major crimes at the Dade SAO disagreed, opining that the delay between the two phases of the trial would allow the horrors of the crimes to recede somewhat in the jurors' minds. Levine also said the strategy would not work unless Cruz decided to testify, which of course would open himself up to what would surely be one of the most devastating cross examinations in modern legal history.
Clearly some very experienced lawyers see the Cruz strategy differently.
So what say you?
As a general principle we agree with Mr. Black. Not only should a defendant never plead guilty to what is potentially the maximum sentence, we also never approve of the strategy of admitting certain charges during the trial, while contesting others. The thought behind this strategy is that by admitting some charges, the defense "buys credibility" with the jury. Balderdash. It rarely if ever works.
But the Cruz case is almost unique in its horror, devastation, and loss of life. And the prospect of the 17 survivors who are listed as victims of attempted first degree murder, testifying about the horrors they experienced of being shot and seeing their friends and teachers murdered, may well be more devastating testimony than the testimony about the victims who died.
The Cruz defense is in one of the worst positions we have ever seen a case. And their client did himself no favors with his disjointed statement to the families during his plea, during which he said he was pleading guilty for them.
And on a separate issue, jury selection is set to begin January 4, 2022. Over/under on how long it takes to seat a jury? We say 70 days, and it goes over.
18 comments:
Yes - but the VIX volatility index is at 15 RUMPOLE??
I will trust the lawyers here. Couple of things, the Staye will still be allowed to put in most of their case, including lots of victims and impact. The jury will likely be selected within 30 days of the start. The plea means each juror will be focused on one question--Life or death, a heavy weight.
And the kindest thing the SAO could have done here for the victims was to abandon the death penalty. Instead they will be subjected to the worst kind of endless scab pulling.
How about pleading guilty, where there is zero defense, would limit the jury to hear the agonizing facts once...as opposed to twice?
Acceptance and contrition also can't hurt (although nothing this kid says should impact that he played G_d making this death penalty case the worst of the worst)
There is no right answer since this tragedy is so unbelievably unique
I think that this was the only logical and viable path forward for the defense. They need to somehow create the image of contrition and remorse for their client who, in my mind, has not shown any to date. The guilt phase would have been a foregone conclusion, given the planning and the forethought that went into the execution of the massacre, notwithstanding the chilling statements of culpability made by Cruz himself. While I’m certain that there was no bargain to be struck with the prosecution, as they clearly want to make an example of Cruz, I’m surprised that the defense waited this long to pursue this strategy. For any defense attorney, this whole scenario is a big shit sandwich that you have no choice but to take a bite out of. They’re just playing the hand that they were dealt.
According to a friend at the Broward PD’s office, Cruz defense so far has cost the defense 27 million dollars with over 700 depositions taken and over 200 pre trial motions litigated. Thoughts?
There are, in my mind, two significant points that alter the calculus of this decision when compared with previous death cases. One point benefits the state and one the defense.
Death penalty juries must now be unanimous. One life vote means the sentence is life. This is quite different than years past where a 6-6 actually resulted in death (James Franklin Rose v. State) or where life recommendations could be subject to an override like in Jeffrey Lee Weaver v. State—the last ever override—in 1999. So one is all that’s needed.
On the other hand, this isn’t all or nothing. A jury could lawfully and quite understandably vote life on several counts and death on several counts. Here to all it takes is one. One death sentence and it’s done with few appellate issues.
As to 70 days to seat a jury, again I would say in the old days I can see that. But here, the jury doesn’t even have to talk to each other. In essence, the lawyers are trying to convince not only twelve separate jurors but also twelve separate juries of one. The state must win all twelve. The defense can lose no more than eleven. But, because of that, the selection should be much quicker than 70 days.
Never ever waive anything but the flag.
WTF were they to do? This is a "slow plea."
All they can hope for is ONE juror who votes life. Boy is that a long shot.
I think it was smart to plead guilty.
This post makes me question everything I thought about who Rumpole really is.
Competent defense attorneys should counsel their clients about perception. Most attorneys want their clients to speak as little as possible, or not at all. If a client is determined to speak in court, his attorneys should warn him about how he comes off and appears to others. They should warn a client who is already reviled by the world that whatever his intentions or emotions, he is probably not going to inspire pity or sympathy with his words. His attorneys should have at least proofread and edited his "apology" to the families if they couldn't keep him from speaking at all.
The Defense strategically believes that they can more effectively channel the jury to find mercy in the penalty phase, and that a slug out in the liability phase could do more harm than good. Most of the focus in a penalty phase trail will be on the defendant's mental illness. The Defendant's concentration of fire where his chances are best does not sound like a bad strategy to me. But, don't listen to me. I am anonymous.
PLEASE 5:17. This is a no brainer. The defense had NO choice. This is the best strategy to save his life. Period. End of story.
Hang em. Hang em high.
I think almost all these comments miss the point. It is not that he will be acquitted or have any chance at it but rather that error can happen during the trial which gives him some chance on appeal. It is the appeals that keep death row prisoners alive. One never knows what the future may hold for abolition etc but if you are dead you have no chance. By pleading guilty he gives up 99% of his appellate issues. All he has left is some miniscule claim of error in the penalty phase. Does anyone seriously think a florida jury is going to give him life? Get serious. The guilty plea will only emboldened them not feel sympathy. Imagine how the parents testimony will affect the jurors. Many years ago I was co-counsel in the habeas proceedings in strickland v. washington. Washington's appointed counsel pled him guilty to three murders and he was sentenced to death. Amazingly the supreme court held this was effective assistance of counsel. So I guess even that tactic will be denied to cruz.
Even for me, someone who is against the death penalty, this case seems to cry out for it.
Another thing to put in the calculus: after a person is sentenced to death, years and often decades of appeals follow. By stipulating to a guilty verdict/waiving a trial/entering of plea of guilty, the defense gave up the possibility of all that error. This seems suspect in a case presided over by an intellectually deficient and very state friendly judge. Hopefully they preserve a ton of error in the penalty phase…
3:58, if you were against the death penalty, this is the case you would use to show you were against it.
Is Mike Satz now a regualr ASA or specially-appointed ASA for this case?
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