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The Parkland shooter may face the death penalty, here's how that process could play out

Image of Judge Elizabeth Scherer in court
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Judge Elizabeth Scherer is presiding over both the battery case and the capital case.

The confessed Parkland school shooter is expected to change his plea agreement Wednesday morning.

The decision came unexpectedly. He had been set to start trial soon in a separate case for attacking a Broward Sheriff's Office sergeant in jail. Instead, last Friday, he plead guilty to all four criminal accounts of assault on a law enforcement officer, including attempted aggravated battery with a deadly weapon. And his attorneys made an announcement:

Nikolas Cruz, now 23, will plead guilty to 17 counts of first-degree murder and 17 counts of attempted first-degree murder in the 2018 mass shooting at Marjory Stoneman Douglas High School, his defense lawyers told presiding Judge Elizabeth Scherer.

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The change in Cruz's plea in the capital case this week would spare relatives and survivors from the stress and trauma of a long, public criminal trial.

Instead of going to trial, the case would enter the penalty phase, where a jury of 12 people would decide if he receives life without parole or the death penalty. Prosecutors plan to seek the death penalty.

Under Florida law, the death penalty requires a jury to be unanimous in their decision.

Lori Alhadeff, who's 14-year-old daughter Alyssa was killed, said she has been waiting for more than three years for the confessed shooter to have his day in court.

“You know, I'm never going to be able to heal, this is very painful for me and for my family. But we are ultimately seeking that he dies from the death penalty,” she told the South Florida Roundup Friday.

Mitch and Annika Dworet, the parents of Nicholas Dworet, 17, who was killed in the shooting and Alexander Dworet, who was shot but survived, believe the death penalty is the appropriate justice.

“We would like to see the death penalty, absolutely,“ said Mitch Dworet. “No doubt in our minds.”

Cruz's defense team has maintained that he would plead guilty in exchange for a life sentence, but prosecutors have rejected that deal. If he does change his plea, instead of going to trial, the case would enter the penalty phase, or the later phase, of a death penalty trial.

WLRN's Caitie Switalski Muñoz spoke with Stephen Harper, professor emeritus and supervising attorney of the Death Penalty Clinic at Florida International University, about what pleading guilty could mean, some of the history of the death penalty in Florida, and a timeline for what's next in his case.

The interview has been edited lightly for clarity.

HARPER: If he pleads guilty or someone pleads guilty, then [the defense team] will make a decision as to whether they went to waive a jury or not wave the jury. Most everyone will not waive a jury.

Then you impaneled a jury that is only going to decide whether a person should be executed or should be spend the rest of their life in prison. Both sides are going to spend a lot of time in their voir dire. Both the prosecutor and the defense [are] trying to find people who will work, who will rule their way. The fact that there are so many people killed in this case, the more people that have been killed, the more publicity about it, the more difficult it is for the court or for both sides to find a fair juror.

WLRN: When you think about a death penalty case, there's usually two phases, right? The first phase determines whether or not you're finding someone guilty. But in [this] case, there's going to be a possible plea change. So we’re looking at just going straight into the penalty phase of a death penalty case. And for those kind of things, what is the responsibility of a jury in that state of a death penalty trial?

A person can waive the jury and have the judge make the ultimate decision.

But if that person does not waive the jury in a penalty phase and it's only a penalty phase jury, then that jury would be picked by the prosecutor and the defense lawyers. They would go back and forth. They would pick a jury only to hear the penalty phase as to whether this person should be sentenced to death or sentenced to life without the possibility of parole.

And very few people let the judge make the decision. Most people want to have the jury make the decision because it only takes one juror to vote for life for the judge and the court to come back under the law with a jury sentence of life.

Is it true that potential jurors who are morally opposed to the death penalty aren't chosen for those cases?

The law is basically that if you are adamantly opposed to the death penalty, you cannot serve on the jury. The test is whether you, notwithstanding your personal beliefs, whether you can weigh the evidence, follow the law and make a decision.

If you're thinking about a typical death penalty case and the penalty phase ... When does that start in a typical case after jury selection? Is it six months? Is it weeks?

As my father, who was a lawyer, taught me the words, "it depends." Every case is different. Sometimes they start up almost immediately. Other times, judges will stop and give a defense an opportunity to get all of its witnesses together and it may be months. So, it really depends, but in a case where somebody has waived the trial and now they're starting up for only a sentencing hearing, it would really depend on what experts either side is calling in [and] their availability.

But I would presume it would be pretty quickly after the person enters a plea.

CSM: Is there a world in which a defendant can plead guilty, but with conditions, like somebody saying, 'Oh, I'll plead guilty if we take the death penalty off the table?” 

SH: The negotiations between the prosecutor and the defense frequently address those kinds of issues. I have represented many people who the prosecutor says, 'Listen, if he pleads guilty and takes a sentence of life without the possibility of parole, we will waive seeking the death penalty.'

But the state has the ultimate decision making power, and they can say it doesn't really matter if he pleads guilty or not guilty, we are not going to waive seeking the death penalty.

So, of course, first degree murder is a capital offense. Is attempted first-degree murder or attempted murder also a capital offense?

No, the only offense in which somebody can get the death penalty is to be found guilty of first degree murder and one of what we call the “statutory aggravating factors” exists.

So, for example, if you kill somebody and you do it with [in] cold, calculated and premeditated or heinous, atrocious and cruel circumstances … those are what we call aggravating factors. There are about [16] aggravating factors in Florida, and the state has to prove one of those factors before somebody can be eligible for the death penalty.

What does a defendant give up by pleading guilty and just moving to a penalty phase? 

Well, he gives up his right to have the trial and the trial that the burden is on the prosecutor to prove beyond a reasonable doubt that the defendant is guilty as charged, and he gives up that right.

There are some advantages to pleading guilty when you are guilty, if nothing else, because you're acknowledging your guilt. And that goes some distance to convincing some people, not all people, that you are accepting responsibility. And that may end up with a lesser penalty.

WLRN's Alyssa Ramos and Katie Lepri Cohen contributed to this report.