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February 25, 2018

Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz

The New York Times has this lengthy new article exploring some particulars and players involved in the possible capital prosecution in Florida of teenage mass murderer Nikolas Cruz. I recommend the full piece, headlined "After a Massacre, a Question of One More Death: The Gunman’s," and here are excerpts:

Among the suspects on the list of the country’s 10 worst mass shootings, Nikolas Cruz is alone in one thing: He was taken alive.  His arrest raises the rare prospect of a death penalty trial for a massacre, a huge undertaking with far-reaching consequences for all involved. Some would not be satisfied without an execution, while for others the trial itself would bring anguish.

The chief prosecutor here in Broward County has said that the killing of 17 people at a high school on Valentine’s Day “certainly is the type of case the death penalty was designed for.”  A trial may be the only opportunity to lay bare all of the facts.  But it would also likely be televised and followed by lengthy appeals, provoking years of public agony, as well as sustained attention for Mr. Cruz, who has already confessed.

Over years of mass shootings, from a university campus in Huntsville, Ala., to a movie theater in Aurora, Colo., prosecutors have struggled with this conundrum, testing political winds, spending days talking with survivors and families of the dead and reflecting on the intersection between morality and the oath of office.

Even Broward County’s public defender, whose office is representing Mr. Cruz and who wants to save his life, readily acknowledges the wrenching emotions that are part of a case that is only beginning. “If it were my daughter, I would want to personally kill my client, make no mistake about it,” said Howard Finkelstein, the public defender, an elected position. Later, though, he said that perhaps he would “try to go on and build a future. I don’t know what I would do. I just don’t know.”

Already, Mr. Finkelstein’s office has offered a way to avoid a trial: Mr. Cruz’s guilty plea in exchange for a punishment of 17 consecutive life sentences without parole. But Mr. Finkelstein recognizes that for some victims, that might not be enough: “I’m a father. I don’t know whether I would take my offer.”

Relatives of the victims of the massacre at Marjory Stoneman Douglas High School in Parkland, Fla., have not yet made their feelings about the death penalty widely known.  And it is not clear where Michael J. Satz, Broward County’s prosecutor, is in his deliberations.  He declined to comment.  Mr. Satz, who was elected state attorney when Gerald R. Ford was president, is regarded as a hard-edged prosecutor, but he is still likely to consider an array of factors, including the odds of persuading a jury.

Although jurors condemned men for massacres in Charleston, S.C., where nine churchgoers were killed, and at Fort Hood, Tex., where there were 13 fatalities, they spared the life of the Aurora gunman who killed 12, citing his history of mental illness. In the Huntsville shooting, the prosecutor said his conversations with the families of the victims were a reason he did not seek execution.

George Brauchler, the lead prosecutor in the Aurora case, said he had engaged in “serious soul-searching” about whether to pass up a plea deal and seek the death penalty. “This is as much a moral decision as it is a decision about justice, and that is not an easy decision to make,” he said....

A crucial consideration in potential capital cases, prosecutors and defense lawyers said, is whether failing to seek the death penalty in a mass shooting would set a precedent, making it more difficult to seek it in cases with lower death tolls. In Charleston, the federal government had a sharp internal debate, and met with resistance from family members of victims, before it decided to seek the death penalty against Dylann S. Roof....

For defense lawyers seeking to spare their client’s life, an appeal to efficiency is one of the few cards they can play — particularly when, as Mr. Finkelstein says, the “case is not a whodunit.” Expecting that Mr. Satz will seek the death penalty, Mr. Finkelstein and his deputies are already preparing for a “long, arduous legal battle” and intend to concentrate on jury selection. Because juries must unanimously recommend death sentences in Florida, a single juror could prevent execution. Mr. Finkelstein said the defense would likely focus on mental health and the accumulation of failures by government agencies to stop Mr. Cruz from opening fire....

In Florida, where 347 people are on death row after an execution on Thursday night, state law spells out a roster of aggravating factors and mitigating circumstances that jurors may consider in capital cases.  Aggravating factors, at least one of which must be proven for someone to be eligible for a death sentence, include a finding that a defendant “knowingly created a great risk of death to many persons” or that a homicide was “committed in a cold, calculated and premeditated manner.”

Mitigating circumstances, like a defendant’s age and whether he or she was under the “influence of extreme mental or emotional disturbance” at the time of the crime, can legally tilt jurors toward a punishment of life in prison.  Mr. Finkelstein made plain that he is dreading any trial here, and not just for legal reasons. In his dimly lit office, he raspily declared a hope that “divine intervention” would persuade Mr. Satz to avoid a trial and an airing of the tragic details.

Prior related post:

February 25, 2018 at 10:27 AM | Permalink


If the police didn't enter the school, did he have fair notice that his conduct was illegal? I think Justice Kennedy will rule that the fifth and sixth amendment bar his prosecution.

Posted by: Fair Notice | Feb 25, 2018 1:26:20 PM

the pd sounds incompetent

Posted by: whatever | Feb 26, 2018 9:57:07 AM

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