Jury selection began last week during the penalty phase of Nikolas Cruz’s trial, the part of his trial that will determine whether he is sentenced to death or life in prison for the 2018 high school shooting in Parkland, Florida.
Cruz has already pleaded guilty to 17 counts of murder and 17 counts of attempted murder for the Marjory Stoneman Douglas High School massacre. The jury being assembled will be responsible for helping to decide his fate.
Jury selection is expected to be a lengthy process that could last until May, depending on discussions between the judge, state and defense during preliminary hearings. Once the jury is constituted, the trial could last between 4 and 6 months.
Here, we’ll break down the penalty phase of Cruz’s case – what it is and what it might look like, as well as possible outcomes and the role of the jury.
Every jurisdiction that still applies the death penalty divides death penalty cases into two distinct phases: the “guilt” phase and the “sentence” or “conviction” phase.
In the guilt phase, an accused is deemed innocent or guilty. This is done either by a jury or by a defendant pleading guilty, as Cruz did last October.
Once a finding of guilt has been reached, the trial moves to the penalty phase, during which the court reviews the case and the defendant’s background to decide whether he deserves death or a lesser sentence. like life imprisonment.
This process is a “virtual constitutional necessity”, said Robert Dunham, executive director of the Death Penalty Information Center, thanks to a combination of Supreme Court rulings that, in part, upheld the guidelines on condemnation of the states that had these bifurcated procedures.
The goal is to ensure that only the “worst of the worst” are executed for their crimes, said Teresa Reid, professor of legal skills at the University of Florida’s Levin College of Law.
“The old adage that is quoted is that death is different,” she said, emphasizing the finality of a death sentence. “There is no appeal from this final act of execution.”
During the sentencing phase, the court will usually hear the reasons why the accused should or should not be put to death. These are respectively called aggravating factors and mitigating circumstances.
Prosecutors will present the aggravating factors, which Dunham described as facts of the case that make the defendant “eligible for death.” Florida law lists at least 16 such factors, including:
- If the accused has already been convicted of a crime
- If the accused “knowingly created a great risk of death for many people”
- If the capital crime was committed while the accused was committing another crime, such as robbery or kidnapping
- If the victim was under the age of 12, a law enforcement officer or an elected or appointed official performing official duties
Defendants, however, have the opportunity to present mitigating circumstances; that is, anything that could convince the court that he does not deserve death. These factors — many of which are irrelevant to the issue of guilt or innocence — would be considered “not sufficient to excuse the crime,” Dunham said, “but sufficient to call for leniency.”
In Florida law, extenuating circumstances include:
- If the accused has no significant criminal history
- If the accused was seriously mentally or emotionally disturbed at the time of the crime
- The defendant acted under extreme duress or the “substantial domination” of another person
- The accused lacked the ability to appreciate the criminality of his conduct
In Florida, however, where the law also permits the presentation of “the existence of any other factor in the defendant’s background which would mitigate the imposition of the death penalty”, the defendant can go much further.
“That’s why this trial could take a long time, this phase could take a long time,” Reid said, adding that she was aware of a case where a defendant’s first-grade teacher was brought in as a mitigating witness. “Where the law allows for any other factor to exist in the backgrounds of the defendants, you can imagine what might be brought in.”
Survivors and family members of victims must also provide victim impact statements, telling the court how the actions of the defendants affected them. It gives victims the chance to be heard, Reid said, and to finally have their day in court.
“What if your loved one was shot? Four years is nothing,” Reid said, referring to the time that has passed since the shooting. “And you haven’t had a chance to face the person and the decision makers and say what an incredible loss (you have suffered).”
“We don’t have a system where the families of the victims decide whether you live or die if you kill their family members. We have no revenge,” she said. “And so that’s the mechanism that the family has.”
Once the aggravating and mitigating factors have been heard, the jury or the judge, whoever is responsible for sentencing, will weigh the aggravating and mitigating factors to determine the sentence.
In Cruz’s case, the jury must be unanimous to conclude beyond a reasonable doubt that there is at least one aggravating factor. If this happens, then the jurors must be unanimous in recommending that the accused be put to death, otherwise his sentence would default to life in prison without the possibility of parole. If they recommend death, the judge could choose to follow that recommendation or sentence Cruz to life instead.
Generally, the jury represents “the conscience of the community,” Dunham said, and by participating they can reflect the sentiments of the wider community where the crime was committed and where the accused is being tried.
At the same time, for states like Florida where a judge makes the final decision on capital punishment, a judge can act as a “safety net,” Dunham said, in case the community’s conscience is dominated by “inadmissible factors” such as racism, for example.
Choosing a jury in a capital case can be difficult because of the opinions of potential jurors on capital punishment: a jury sitting in a death penalty case must be willing to impose the death penalty. But they must also be prepared to weigh mitigating circumstances, Dunham said, and consider the lesser sentence.
“You don’t want jurors whose ability to obey the law is significantly impaired,” Dunham said. This means “they must be willing to honestly consider the aggravating circumstances and give them some weight as a reason for taking the accused’s life”, he said, “and they must (also) be willing to consider mitigating circumstances and give them some weight as a reason to spare the life of the accused.