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