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Defense lawyers are demanding the removal of Broward Circuit Judge Elizabeth Scherer from the Marjory Stoneman Douglas mass shooting trial, saying she took her criticism of their team too far when they rested their case without warning earlier this week.
In a motion filed Friday, the Broward Public Defender’s Office accused the judge of holding a longstanding animosity for lead defense lawyer Melisa McNeill, an animosity they say “has infected this entire trial.”
Hostility between the judge and the defense reached a boiling point Wednesday morning when the defense announced, with no explicit warning, that it was resting its case seeking mercy for confessed gunman Nikolas Cruz. The jury is tasked solely with determining whether Cruz should be sentenced to death or life in prison.
Prosecutors, unaware that the defense would be resting, were not prepared to call witnesses for their rebuttal, and Scherer told the jury she would not have “dragged you all in here” if she had known the defense was done. That statement, defense lawyers wrote, improperly blamed the defense for wasting the jury’s time.
Before the jury was called into the courtroom, Scherer blasted McNeill and accused the defense team of a “level of unprofessionalism” unlike any she had experienced in her career. When McNeill tried to defend her decision, Scherer stopped her.
“You have been insulting me this entire trial so blatantly,” the judge said. “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.”
That last comment proves more than the judge probably intended, the defense team wrote. “The court has now revealed that its animosity toward lead defense counsel is long-held and has infected this entire trial.”
“These statements have caused Mr. Cruz to fear he will not have a fair trial,” the defense team wrote.
In their response, prosecutors said Scherer has been respectful to both sides and did not disclose a “long-held animosity” toward the defense. “A judge’s remarks that she is not impressed with a lawyer’s or her client’s behaviors are not, without more, grounds for recusal.”
Tensions between a judge and defense lawyer are common in criminal trials, especially high-profile murder cases, as are motions to remove the judge from the case. They are rarely granted, especially at this late stage of the proceedings.
Scherer is likely to address the motion on Monday, when both sides are due in court to handle issues outside the jury’s presence. Unless she steps aside, she is allowed only to express a finding that the motion is “legally insufficient.”
The state is scheduled to begin presenting its rebuttal case on Sept. 27.