South Florida Sun-Sentinel (Sunday)
Families left looking for answers
As the Parkland jury verdict gets picked apart, some are wondering why not death sentence
Just moments after the world learned a jury had opted to spare the life of Parkland gunman Nikolas Cruz, those who wanted him sentenced to death started asking: What went wrong?
Did prosecutors pick the wrong jury? And if hunting down and killing 17 students and school staff does not warrant a death sentence, what does?
It’s a question being asked by families of the victims and even criminal defense attorneys. But at the end of the day, it all comes down to the jury, legal experts say.
“Cases are won or lost in jury selection,” said Eric Schwartzreich, a criminal defense attorney who kept a close eye on the case. “The defense won this case because they picked a better jury. Let me be clear, the state did a masterful job. But the state got outworked in that jury selection.”
Bob Jarvis, a constitutional law professor at Nova Southeastern University, agrees.
“Picking a jury is not a science, it’s an art,” Jarvis said. “And sometimes we think, ‘Oh, it’s great we
got that juror.’ And that’s the juror who sunk our case.”
Every trial lawyer thinks they picked the right jury, Jarvis said. It’s only when the verdict doesn’t go their way that they realize they might have made a mistake.
No lawyer who goes to trial thinks they’re going to get surprised by the jury, he said.
“But of course the lawyers always let the wrong jurors onto juries because we have no idea when we’re picking juries how they’re going to react to our arguments,” he added.
‘You just never know’
Richard Rosenbaum, a criminal defense attorney with a long list of clients that includes Lionel Tate, serial killer Danny Rolling and former baseball star Jose Canseco, also watched the case with interest.
“I wouldn’t say they picked the wrong jury,” he said. “I think it was a well tried case on both sides. And you just never know what a jury’s going to do.”
Every juror walks into the courtroom with his or her own biases, background and life experience.
“We ask jurors to put aside their biases and judge the facts on the facts,” Schwartzreich said. “But jurors are human beings. We ask a lot of these people, but it’s very difficult for them to put aside how they view the world.”
In the Cruz sentencing trial, three of the 12 jurors voted to spare the life of Cruz, a mentally broken, brain-damaged soul who defense attorneys argued was “doomed from the womb” due to the fact that his mother drank and did drugs during her pregnancy. Under state law, a jury’s decision to recommend death must be unanimous.
“I think the ‘doomed from the womb’ argument was something that certain jurors were willing to listen to,” Schwartzreich said. “What this defendant did was inexcusable. Children were gunned down in a school. Seventeen people lost their lives. But for these jurors, three were not going to move. And the other jurors signed off on it. At the end of the day, the jury signed off on this.”
Under the microscope
Those same jurors are now being subjected to an intense level of scrutiny they likely would not have gotten had they served on a lower-profile case, Jarvis noted.
The jurors who weren’t chosen were likely relieved to have been sent home, Jarvis said.
“Usually you have jurors who don’t want to serve on a high-profile case that’s going to take months,” he said. “And whatever they do, it will come under great scrutiny. You’re damned if you do and damned if you don’t.”
Fred Guttenberg lost his daughter Jaime in the Valentine’s Day massacre at Marjory Stoneman Douglas High in 2018. Soon after the verdict was read on Thursday, Guttenberg appeared on TV screens across the nation questioning whether the holdouts had lied when being questioned about whether they could sentence Cruz to death.
“No one is getting on a death jury unless you believe in the death penalty,” Schwartzreich said. “If you’re opposed to the death penalty, you’re struck for cause. People are asking whether there was some kind of misconduct — and I’m not saying that happened here. I know the families and everyone is looking for answers.”
Proving juror misconduct can be difficult, Schwartzreich said.
“If someone lied to get on the jury, you’d have to prove it,” he said. “And it’s a difficult thing to prove. We’re not mind readers. You need evidence to support something like that. We already ask a lot of our jurors. We don’t go to their homes and scrub their computers [to catch them in a lie].”
Some trial lawyers rely
on jury consultants to help them pick the best jurors for their case while some do their own choosing.
Jarvis argued that experienced attorneys are better off doing it on their own.
Lessons learned?
As for the Cruz case, it’s hard to say whether there are any lessons to be learned as far as picking a jury, Jarvis said.
“It’s impossible to learn anything,” he said. “You’d need a camera inside the jury deliberation room. And even if you had that, it would only tell you about those 12 people. It wouldn’t help you next time. The state put on a perfect case. And we let the chips fall where they may.”
Some people might argue justice was served by sentencing Cruz to life in prison, Jarvis said.
“Maybe this was the right decision and the people disagreeing with it are wrong,” he said. “We all knew this was a very difficult case for any jury. You could say nine were holdouts for the death penalty if you think the three were correct. So those nine got it wrong.”
Jarvis wondered if things might have gone differently had the sentencing trial been moved to the northern part of the state, where residents tend to be more conservative.
“I think we’re in Broward County,” he said. “Broward is a liberal county. You’re going to have a tougher time getting a death penalty verdict in Broward County.”