The judge in the Parkland school shooting sentencing trial has denied a motion by the gunman's defense attorneys to remove herself from the case.
Attorneys for Nikolas Cruz on Friday filed a motion to disqualify Circuit Judge Elizabeth Scherer from the case, claiming the judge had revealed her animosity toward lead defense attorney Melisa McNeil, and that it has "infected" the entire trial.
Scherer denied the motion in a brief written order, as a hearing was being held Monday afternoon.
"The allegations set forth in the instant motion are legally insufficient to merit disqualification," Scherer wrote.
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The motion cited Florida's Judicial Code of Conduct that states a judge shall disqualify himself or herself if the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party or a party’s lawyer. Defense attorneys said Scherer's repeated improper and unjustified attacks on the defense counsel undermine the public’s confidence in the judicial system and have also caused Cruz to fear that he will not receive a fair trial.
Prosecutors said in a response that Scherer has been respectful to both sides, and in an amended response said the motion to disqualify was legally insufficient, citing a case that found that judicial comments, even if critical or hostile, aren't grounds for disqualification.
Scherer scolded defense attorneys on Wednesday when they abruptly rested their case after calling only a fraction of their witnesses.
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The sudden announcement by lead attorney McNeill led to a heated exchange between her and Scherer, who called the decision without warning to her or the prosecution “the most uncalled for, unprofessional way to try a case.”
The 12-member jury and 10 alternates were not present but were lining up outside the courtroom to enter. The sudden announcement also meant prosecutors weren't ready to start their rebuttal case.
Scherer then accused Cruz's attorneys of being inconsiderate to all involved, but especially the jurors for wasting their trip to court.
McNeill started to respond to Scherer but was cut off.
"I have been practicing in this county for 22 years…" McNeill started to say.
"You know what, I don't want to hear it," Scherer said.
"Well judge you're insulting me on the record in front of my client and I believe that I should be able to defend myself," McNeill responded.
"You can do that later, you can make your record later but you've been insulting me the entire trial, blatantly, taking your headphones off, arguing with me, storming out, coming late intentionally if you don't like my rulings, so quite frankly this has been long overdue," Scherer said.
Cruz, 23, pleaded guilty last October to 17 murders and 17 attempted murders at Marjory Stoneman Douglas High School on Feb. 14, 2018.
His trial is only to determine whether he is to be sentenced to death or life without parole. For a death sentence, the jury must be unanimous.
During Monday's hearing, Scherer also heard a defense motion to remove any mention of swastikas, which the gunman had scrawled onto the backpack he wore at school and his weapons magazines.
Defense attorneys argue the swastikas and hateful messages the killer left online would inflame jurors. Prosecutors said it just shows he antisocial and rebuts any claim that he was a victim of bullying at school.
And the state noted the defense is the one who introduced evidence of the swastikas when they submitted school records to the jury.
Scherer is expected to give a decision on that motion Tuesday.
Prosecutors said they will need more than a week to prepare their rebuttal case. The trial is now tentatively scheduled to resume Sept. 27 and conclude Oct. 7, with closing arguments expected to begin Oct. 10.
The defense team was also expected to challenge on Monday afternoon the length of time allowed for the state’s rebuttal.