It wasn’t that long ago that Florida school shooter Nikolas Cruz was looking at an almost certain death sentence for killing 17 people in Parkland, even if his jury couldn’t unanimously agree on his fate.
Until 2016, Florida law allowed judges to impose the death penalty if a majority of jurors agreed. With a 9-3 vote Thursday in favor of Cruz’s execution, U.S. District Judge Elizabeth Scherer would likely send him to death row for the 2018 massacre at Marjory Stoneman Douglas High School.
Now, however, a vote of less than 12-0 means an automatic sentence of life in prison without parole — a standard that the Stoneman Douglas families and the head of the state’s attorneys’ association want to change. That would again put Florida in a distinct minority among the 27 states that still have the death penalty, almost all of which require unanimity by jurors.
Ed Brodsky, president of the Florida District Attorney’s Association, believes the Legislature next year will consider changing the law it passed after a pair of court decisions struck down the old law.
“When there’s an overwhelming majority and opinion on what the ultimate sentence should be, could one minority voice dominate and hijack justice?” said Brodsky, the elected state attorney for Sarasota County and its neighbors.
Gov. Ron DeSantis criticized the sentence at a news conference Friday, but declined to specify what changes he would support.
“We need to make some reforms to better serve crime victims and the families of crime victims, and not always bend over backwards to do whatever it takes for the perpetrators of crime,” DeSantis said.
Cruz, 24, pleaded guilty a year ago to killing 14 Stoneman Douglas students and three staff members on Feb. 14, 2018. That left it up to a jury of seven men and five women to decide whether he should be sentenced to death or life without parole.
The three-month trial included harrowing prosecution videos, photographs and testimony of Cruz’s murders. This was followed by defense testimony about his birth mother’s heavy drinking during pregnancy, which witnesses said created a brain-damaged person who began behaving erratically, bizarrely and violently at age 2.
After deliberating for seven hours, jurors announced Thursday that they unanimously agreed with the prosecution’s argument for aggravating factors such as the multiple deaths and Cruz’s planning, but not whether they outweighed the mitigating circumstances. Scherer will sentence Cruz to life in prison on Nov. 1.
“If this wasn’t the most perfect case of the death penalty, why do we have the death penalty at all?” said Linda Beigel Schulman, mother of slain teacher Scott Beigel.
But some defense attorneys and death penalty experts said it was not surprising that jurors could not agree unanimously. Last year, there were only 18 executions nationwide, two of them in Florida.
The latest Gallup poll found that 54% of Americans support the death penalty, up from 80% in the mid-1990s. And while all Cruz jurors said they could vote for the death penalty if elected, they did not say they supported it.
“At first glance, you think, ‘My God, how could you not vote for the death penalty?'” said Richard Escobar, a Tampa defense attorney and former prosecutor. He tried his hand at capital cases in both roles. “But you have to think and think to yourself, ‘If this person is really mentally ill, you shouldn’t be imposing the death penalty because they got that mental illness through no fault of their own.'”
Robert Dunham, executive director of the Death Penalty Information Center, said the Cruz case has a lot in common with the 2012 shooting at an Aurora, Colo., movie theater that left 12 dead. In that case, 11 jurors voted for death, while one dissented based on testimony about the shooter’s mental illness. That meant a life sentence.
“The question is not whether murder justifies the death penalty. (Cruz) is clearly the type of case where a jury can reasonably impose the death penalty,” Dunham said. “The question is, ‘Does the defendant deserve the death penalty?’
Florida’s law allowing for a majority vote by a jury had been in place for decades before it was overturned, but it was extraordinary. Almost all death penalty states required unanimity during those years or adopted it. Alabama allows the death penalty after a 10-2 vote. Missouri and Indiana allow a judge to decide if jurors unanimously agree there are aggravating circumstances but cannot agree on a sentence.
Then in 2016, in an 8-1 vote, the U.S. Supreme Court struck down the Florida law, saying the judge carried too much weight in the decision.
The Legislature passed a bill requiring a jury recommendation 10-2, but the state Supreme Court struck it down. In 2017, the law was amended to require a unanimous jury.
Three years later, however, DeSantis, a Republican, replaced three retired Florida judges with more conservative jurists, and a state court reversed the earlier decision. It states that the recommendation for death no longer has to be unanimous, but lawmakers have not changed the law from unanimous in three annual sessions. DeSantis never pushed them.
David S. Weinstein, a Miami criminal defense attorney and former prosecutor, doesn’t think DeSantis and the Legislature will pass any unanimous changes next year — that would risk the U.S. Supreme Court striking down the state law again.
“That ship has sailed,” he said.
But will the Cruz verdict make it less likely that Florida prosecutors will seek the death penalty?
Craig Trocino, a University of Miami law professor who previously handled death penalty appeals, doesn’t think so.
“It might even strengthen their resolve,” he said.
Still, he said, it’s hard to make broad predictions about the impact of marginal cases like Cruz. No other American mass shooter who has killed as many or more people than Cruz has ever gone on trial — nine were killed by themselves or police during or immediately after the attacks. 10. He is awaiting trial in Texas.
For Cruz, it’s rare for attorneys to have so much documentation to support their mitigating circumstances. The Broward public defender’s office also had better lawyers assigned to Cruz’s case and more money for investigations than their counterparts in smaller jurisdictions typically have, he said.
In those districts, “Mitigation would be one witness and that would be the mom saying, ‘He’s always been a problem child,’” Trocino said.
Gresko reported from Washington, DC Farrington reported from Tallahassee, Florida. AP reporter Anthony Izaguirre in Tallahassee contributed to this report.