Amy Beth Bennett/AP
FORT LAUDERDALE, Fla. — It wasn’t long ago that Florida school shooter Nikolas Cruz would have been looking at a near-certain death sentence for murdering 17 people in Parkland, even if his jury could not unanimously agree on his fate.
Until 2016, Florida law allowed trial judges to impose a death sentence if a majority of the jurors agreed. With a 9-3 vote Thursday supporting Cruz’s execution, Circuit Judge Elizabeth Scherer would have likely sent him to Death Row for the 2018 massacre at Marjory Stoneman Douglas High.
Now, however, a vote of anything less than 12-0 means an automatic sentence of life without parole — a standard the Stoneman Douglas families and the head of the state’s prosecutors association want changed. That would again put Florida in a distinct minority among the 27 states that still have the death penalty where almost all require juror unanimity.
Ed Brodsky, president of the Florida Prosecuting Attorneys Association, believes the Legislature will next year consider changing the law it passed after a pair of court decisions rejected the old law.
“When there is an overwhelmingly majority and sentiment about what the ultimate penalty should be, should one minority voice be able to dominate and hijack justice?” said Brodsky, the elected state attorney for Sarasota County and its neighbors.
Gov. Ron DeSantis at a Friday press conference criticized the sentence, but wouldn’t specify what changes he would support.
“We need to do some reforms to be better serving victims of crimes and the families of victims of crimes and not always bend over backwards to do everything we need to for the perpetrators of crimes,” DeSantis said.
Cruz, 24, pleaded guilty a year ago to the murder of 14 Stoneman Douglas students and three staff members on Feb. 14, 2018. That left it up to the seven-man, five-woman jury to only decide whether he would be sentenced to death or life without parole.
The three-month trial included horrific prosecution videos, photos and testimony about Cruz’s murders. That was followed by defense testimony about his birth mother’s heavy drinking during pregnancy that witnesses said created a brain-damaged person who began displaying erratic, bizarre and violent behavior at age 2.
After seven hours of deliberations, the jurors announced Thursday they unanimously agreed the prosecution’s argument for aggravating factors such as the multiple deaths and Cruz’s planning did exist, but not on whether those outweighed the mitigating circumstances. Scherer will impose Cruz’s life sentence Nov. 1.
“If this was not the most perfect death penalty case, then why do we have the death penalty at all?” said Linda Beigel Schulman, the mother of slain teacher Scott Beigel.
But some defense attorneys and capital punishment experts said it wasn’t surprising the jurors couldn’t unanimously agree. Only 18 death sentences were handed down nationwide last year, two of them in Florida.
The latest Gallup Poll showed 54% of Americans favor the death penalty, down from 80% in the mid-1990s. And while the Cruz jurors all said they could vote for the death penalty if chosen, they didn’t say they support it.
“At first glance, you think to yourself, ‘My God, how can you not vote for the death penalty?'” said Richard Escobar, a Tampa defense attorney and former prosecutor. He has tried capital cases in both roles. “But you’ve got to reflect and think to yourself, ‘If this person was truly mentally ill, you shouldn’t impose the death penalty because they got that mental illness through no fault of their own.'”
Robert Dunham, the Death Penalty Information Center’s executive director, said the Cruz case has a lot in common with the 2012 shooting at an Aurora, Colorado, movie theater where 12 people died. In that case, 11 jurors voted for death while one disagreed based on testimony about the shooter’s mental illness. That meant a life sentence.
“It’s not a question of does the murder warrant the death penalty. (Cruz) is clearly the type of case in which a jury could reasonably impose the death penalty,” Dunham said. “The question is ‘Does the defendant deserve the death penalty?'”
Florida’s law allowing for a majority jury vote had been in place for decades before it was overturned, but it was an outlier. Almost all death penalty states required unanimity throughout those years or adopted it. Alabama allows a death sentence after a 10-2 vote. Missouri and Indiana allow the judge to decide if jurors unanimously agree the aggravating circumstances exist but can’t agree on a sentence.
Then in 2016, by an 8-1 vote, the U.S. Supreme Court threw out Florida’s law, saying the judge had too much weight in the decision.
The Legislature passed a bill requiring a 10-2 jury recommendation, but the state Supreme Court overturned it. In 2017, the law was changed to require a unanimous jury.
Three years later, however, DeSantis, a Republican, replaced three retiring Florida justices with more conservative jurists and the state court rescinded the earlier decision. It said a death recommendation no longer needed to be unanimous, but legislators through three annual sessions haven’t changed the law back from unanimity. DeSantis never pushed them.
David S. Weinstein, a Miami criminal defense lawyer and former prosecutor, doesn’t think DeSantis and the Legislature will make any changes to unanimity next year, either — that would risk the U.S. Supreme Court throwing out the state law again.
“That ship has sailed,” he said.
But will the Cruz sentence make Florida prosecutors less likely to 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 harden their resolve,” he said.
Still, he said, it is difficult to make broad predictions on the impact fringe cases like Cruz will have. No U.S. mass shooter who killed as many or more than Cruz had ever gone to trial — nine were killed by themselves or police during their attack or immediately after. A 10th is awaiting trial in Texas.
On Cruz’s side, it is rare for attorneys to have so much documentation supporting their mitigating circumstances. The Broward public defender’s office also had better-quality attorneys to assign to Cruz’s case and more money for investigations than their counterparts in smaller jurisdictions typically do, he said.
In those counties, “Mitigation would be one witness and it would be mama saying, ‘He was always a troubled kid,'” Trocino said.