Cause for con­cern in Judge Scherer’s han­dling of Cruz case

South Florida Sun-Sentinel (Sunday) - - Voices & Opinion -

From the mo­ment Cir­cuit Judge El­iz­a­beth Scherer was ran­domly as­signed Broward County’s trial of the cen­tury — the case of school shooter Niko­las Cruz — buzz be­gan about whether she was up to the task.

Though 42 and a for­mer as­sis­tant pros­e­cu­tor, Scherer is a rel­a­tively young and in­ex­pe­ri­enced judge. She was ap­pointed to the bench six years ago by Gov. Rick Scott. It’s be­lieved she got the ap­point­ment be­cause her fa­ther, at­tor­ney Bill Scherer, is a big-time Repub­li­can fundraiser who was one of Scott’s early Broward sup­port­ers eight years ago.

With the Cruz case, Judge Scherer faces a trial of mon­u­men­tal scale, given its 34 vic­tims and more than 950 wit­nesses. And in what will be the defin­ing case of her ca­reer, the na­tional spotlight will for­give few mis­steps.

There’s re­ally no ques­tion but that Cruz com­mit­ted the Valen­tine’s Day mas­sacre at Mar­jory Stone­man Dou­glas High School in Park­land. What’s play­ing out in Scherer’s court­room these days is the pre-trial chess match that will likely de­ter­mine if, or when, he is ever put to death, as prose­cu­tors want.

Six months in, the jury re­mains out on whether Scherer has the wis­dom, grav­i­tas and emo­tional re­straint to shep­herd this case to a just end.

But some early steps don’t look good. A week af­ter the shoot­ing, Cruz’s pub­lic de­fend­ers asked her to step aside for hav­ing sent prose­cu­tors a memo — deemed con­fi­den­tial by an­other judge — about their ef­forts to visit Cruz in jail. In her very first rul­ing, it ap­pears Scherer over­stepped the le­gal lines and showed fa­voritism to the pros­e­cu­tion. These are the kind of de­ci­sions likely to be ap­pealed post-trial that will make this case drag on for years.

More cause for con­cern arose last week when Judge Scherer made in­tem­per­ate re­marks dur­ing a hear­ing live-streamed via the court­room’s cam­era. Sim­ply put, the re­views weren’t good.

At is­sue: a con­sul­tant’s re­port

It hap­pened af­ter the South Florida Sun Sen­tinel pub­lished the re­port of a school board con­sul­tant hired to ex­am­ine the events that led up to Feb. 14. That’s the day when Cruz, armed to the teeth, marched into the fresh­man build­ing at his for­mer high school and be­gan de­stroy­ing lives.

Su­per­in­ten­dent Robert Run­cie had promised to re­lease the re­port once it was com­pleted. But when the time came, the district’s at­tor­neys stood in his way, say­ing its re­lease would vi­o­late fed­eral pri­vacy laws that gov­ern med­i­cal and stu­dent records. Join­ing their ob­jec­tions were Cruz’s pub­lic de­fend­ers, who said the re­port’s re­lease would cripple his shot at a fair trial.

An­tic­i­pat­ing our chal­lenge that the re­port is a pub­lic record — not part of the state at­tor­ney’s crim­i­nal in­ves­ti­ga­tion, but some­thing com­mis­sioned af­ter the fact by the school board — the district’s at­tor­neys beat us to the court­house door, a move that would forgo their hav­ing to pay our at­tor­ney fees.

Judge Patti Eng­lan­der Hen­ning con­sid­ered the mat­ter in civil (not crim­i­nal) court, where dis­putes about ac­cess to pub­lic meet­ings and records rou­tinely are heard. She agreed the re­port is a pub­lic record. And though the Sun­shine Law now has a thou­sand-plus ex­emp­tions, the pos­si­bil­ity that a pub­lic record might af­fect some­one’s crim­i­nal case is not among them.

That said, Hen­ning or­dered the district to redact in­for­ma­tion about Cruz’s med­i­cal and stu­dent records. Our at­tor­ney, Dana McEl­roy, agreed that pri­vacy laws pre­vent govern­ment from re­leas­ing some of this in­for­ma­tion. But she urged the judge to nar­rowly de­fine what must be blacked out.

Hen­ning also stayed her or­der for five days, giv­ing Cruz’s at­tor­neys time to ap­peal to Judge Scherer for a dif­fer­ent out­come, which they did for far dif­fer­ent rea­sons. The jury re­mains out on whether Judge El­iz­a­beth Scherer is up to han­dling the case of Park­land school shooter Niko­las Cruz, but some early signs don't look good.

De­fense calls re­port “white­wash”

De­fense at­tor­ney David Frankel called the re­port a “white­wash,” com­mis­sioned to ab­solve the district of re­spon­si­bil­ity for how it had han­dled Cruz’s com­plex psy­cho­log­i­cal prob­lems. Our at­tor­ney, mean­while, ar­gued that the crim­i­nal court shouldn’t be de­cid­ing whether to re­lease the re­port. And she re­it­er­ated her plea that the district not black out more de­tails than re­quired by law.

What hap­pened next put the case back on the na­tional stage and Judge Scherer in an un­flat­ter­ing spotlight.

When the district re­leased the re­port Aug. 3 via a link on its web­site, our re­porters, Paula McMa­hon and Brit­tany Wall­man, found 1,078 of its 1,707 lines — or about 64 per­cent— blacked out. From what lit­tle they saw, it ap­peared the district had largely han­dled Cruz’s case ap­pro­pri­ately. A press re­lease said the re­port found the school district had pro­vided “sig­nif­i­cant and ap­pro­pri­ate ser­vices to Niko­las Cruz in com­pli­ance with fed­eral laws.”

And now, the rest of the story.

As per­haps you’ve heard, a reader alerted Wall­man via Face­book that the redacted re­port, re­leased in PDF for­mat, could be read in its en­tirety if copy-and­pasted into a Word or Google doc­u­ment, or even an email. And so it was.

School district flubs re­port’s re­lease

The Sun Sen­tinel broke no laws in ob­tain­ing the full re­port. “Any­body could get to it,” ed­i­tor-in-chief Julie An­der­son rightly said. Af­ter much dis­cus­sion, in­clud­ing con­sul­ta­tion with our at­tor­neys, we pub­lished a sec­ond story that in­cluded what the re­port iden­ti­fied as two sig­nif­i­cant mis­takes in how district of­fi­cials han­dled Cruz.

First, they mis­stated his op­tions when he was about to be re­moved from Stone­man Dou­glas his ju­nior year, lead­ing him to refuse spe­cial ed­u­ca­tion ser­vices. Sec­ond, they “did not fol­low through” when he asked to re­turn to the ther­a­peu­tic en­vi­ron­ment of Cross Creek School, the re­port said.

We have to ask: Why were the school district’s key fail­ures blacked out?

“In part be­cause of the er­rors, Cruz had no school coun­sel­ing or other spe­cial ed­u­ca­tion ser­vices in the 14 months lead­ing up to the shoot­ing on Feb. 14,” the re­port says.

The school district’s lawyers went bal­lis­tic when they saw our story. Ap­par­ently with­out con­sult­ing the school board, they filed a sworn pe­ti­tion say­ing the school board wanted the Sun Sen­tinel, McMa­hon and Wall­man held in con­tempt of court.

Which brings us back to Judge Scherer.

A voice filled with con­tempt

At the Aug. 15 sta­tus-con­fer­ence hear­ing, the judge heard the district’s pe­ti­tion and asked if our re­porters were pre­sent. They weren’t. The an­swer didn’t sit well with Scherer. She sounded ready to speak to McMa­hon and Wall­man with con­tempt, if not hold them in con­tempt.

Scherer has yet to rule on the pe­ti­tion. But be­cause her pique was stoked by an ac­tion out­side the court­room, a col­lat­eral pro­ceed­ing would first be re­quired, one that would af­ford our re­porters due process.

Then came the next jaw-drop­ping mo­ment.

De­bra Klauber, the school board’s out­side at­tor­ney, said it was never her in­tent, nor the in­tent of her part­ner Eu­gene Pet­tis, nor the in­tent of school board gen­eral coun­sel Bar­bara Myrick, nor the in­tent of the school board to pur­sue con­tempt pro­ceed­ings against the Sun Sen­tinel and its re­porters. She said they only wanted to make the court aware that they be­lieved court or­ders had been vi­o­lated.

Wait a minute. Back up the video. Con­sider the ti­tle of their pe­ti­tion, which they swore was true un­der penal­ties of per­jury: “Ver­i­fied Pe­ti­tion to In­voke Con­tempt Pro­ceed­ings Against Sun-Sen­tinel Com­pany, LLP, and re­porters, Paula McMa­hon and Brit­tany Wall­man.”

So which is it?

Once Klauber made clear she didn’t re­ally mean it — that the school board didn’t want to pros­e­cute the Sun Sen­tinel and its re­porters — why did Scherer proceed?

Turns out, she had some­thing to say. And as she spoke her mind, red flags be­gan to ap­pear about her com­mand of the law. She also ap­pears to have laid more ground­work for Cruz’s cer­tain ap­peal.

As this was hap­pen­ing, we’re told that for the first time, Cruz didn’t keep his head on the ta­ble, but sat up to watch the drama.

Scherer let ‘er rip

Scherer said the Sun Sen­tinel, through its lawyer, had agreed to what in­for­ma­tion could and couldn’t be pub­lished. But that never hap­pened.

Yes, our at­tor­ney had ac­knowl­edged that govern­ment bod­ies are legally bound to keep cer­tain med­i­cal and ed­u­ca­tion records con­fi­den­tial. But McEl­roy never said we wouldn’t pub­lish such in­for­ma­tion if we ob­tained it legally and con­sid­ered it to be of great pub­lic im­por­tance, which was our judg­ment in this case.

Scherer said that from now on, “if I have to specif­i­cally write word for word ex­actly what you are and are not per­mit­ted to print – and I have to take the pa­pers my­self and redact them with a Sharpie … then I’ll do that.”

Not so fast, your honor. Prior-re­straint or­ders rarely trump the First Amend­ment’s right to free speech. Con­sider the case of the Pen­tagon Pa­pers, where the Nixon Ad­min­is­tra­tion tried to keep The New York Times from pub­lish­ing in­for­ma­tion legally ob­tained about the Viet­nam War de­ba­cle. The U.S. Supreme Court said the govern­ment’s con­cerns about na­tional se­cu­rity failed to meet the heavy bur­den needed to si­lence a free press.

Scherer re­buked our lawyer on a per­sonal level, sound­ing as though she’d been betrayed by her best friend. She said McEl­roy had acted in bad faith. “If you told them to go ahead and pub­lish it, I find that to be an eth­i­cal vi­o­la­tion on your part. If you gave them that ad­vice, then shame on you.”

We’re not go­ing to re­veal our at­tor­ney’s ad­vice, but we will say this: lawyers don’t de­cide what goes in the news­pa­per.

Scherer said the Sun Sen­tinel not only acted with­out re­gard to the rights of Mr. Cruz, but of “the 34 listed vic­tims in this case who are all en­ti­tled un­der the Con­sti­tu­tion to a fair trial.”

With all due re­spect, the only per­son on trial for mur­der is Cruz, 19, who faces the death penalty. And you can bet her sug­ges­tion other­wise will ap­pear in his post-trial ap­peal.

Scherer said she had no idea that PDF doc­u­ments might be al­tered if pasted into an­other doc­u­ment, a knowl­edge more com­mon than she thinks. The Face­book user who alerted our re­porters wasn’t the only per­son who quickly made the con­ver­sion. So did a for­mer Sun Sen­tinel re­porter, who be­gan shar­ing the de­tails on Twit­ter.

In the big pic­ture, it’s hard to see how this re­port will hurt Cruz’s right to a fair trial. Rather, it shows a bro­ken young man long failed by the sys­tem. To be clear, noth­ing in his record ex­cuses his mer­ci­less slaugh­ter of pre­cious peo­ple or sug­gests he should be found not guilty by rea­son of in­san­ity. Cruz planned his mas­sacre too care­fully for that.

Where these de­tails will likely mat­ter is in the trial’s penalty phase, where his at­tor­neys will fight to keep him from be­ing sen­tenced to death. They need only con­vince one of 12 ju­rors.

In over­see­ing a crim­i­nal trial of this mag­ni­tude, Scherer faces a huge bur­den. Many more con­flicts lie ahead about ac­cess to pro­ceed­ings and the abil­ity to view ev­i­dence.

Shep­herd­ing this case to a fair ver­dict will take a mea­sured ap­proach, with words and emo­tions kept in check. And it will be vi­tal to let the pub­lic bear wit­ness to the process so peo­ple ac­cept its le­git­i­macy, even if they may dis­agree with the out­come.

This episode re­minds us of an­other trial of the cen­tury — the O.J. Simp­son case — where Judge Lance Ito showed sim­i­lar pique to­ward the me­dia. At one point, he threat­ened to re­move the cam­era from the court­room. The next day, he dropped the is­sue, cit­ing what he called "the ben­e­fit of a night's sleep.” It’s good ad­vice for everyone.

As the Simp­son trial did to Los An­ge­les, we fear the spec­ta­cle the Cruz case will cre­ate in our com­mu­nity. Must we re­ally en­dure this? Must we re­ally spend tens of mil­lions of dol­lars to prove what we al­ready know — that Cruz is guilty?

We en­cour­age State At­tor­ney Mike Satz to re­con­sider his de­ci­sion to seek the death penalty, the only rea­son why this case will re­main alive for years on end. Cruz is ready to plead guilty to 34 life sen­tences. Let’s lock him up, throw away the key and never ut­ter his name again.

Let’s show the world we’re mad as hell about what hap­pened and we hold killers ac­count­able.

And we will for­ever mourn those whose fu­tures were stolen.

But in their mem­ory, let us not spend the next decade re­liv­ing a night­mare rou­tinely stoked by dust-ups like this.

Editorials are the opin­ion of the Sun Sen­tinel Ed­i­to­rial Board and writ­ten by one of its mem­bers or a de­signee. The Ed­i­to­rial Board con­sists of Ed­i­to­rial Page Ed­i­tor Rose­mary O'Hara, Andy Reid and Ed­i­tor-in-Chief Julie An­der­son.

TAIMY AL­VAREZ/STAFF PHO­TOG­RA­PHER

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