"A judge shall uphold the integrity and independence of the judiciary. … A judge shall perform the duties of judicial office impartially and diligently." — Canons 1 and 3 of the Florida Code of Judicial Conduct
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Given human nature, it is understandable that some of those who lost loved ones in the Parkland massacre would want to vent their anger at the killer’s public defenders for saving him from death row.
But it’s neither understandable nor acceptable that Circuit Judge Elizabeth Scherer allowed them to do it during a recent two-day sentencing hearing. Worse, she was abusive herself, berating and humiliating Public Defender Gordon Weekes and his chief assistant David Wheeler for trying to defend their people from attacks in the courtroom.
The judge snapped when Wheeler asked how she would feel if similar veiled threats were being made against her children. She ordered Weekes to leave the defense table as if he were a schoolchild being sent to the principal’s office.
Scherer, whose impartiality had been questioned before and throughout the sentencing trial, erased any remaining doubt by publicly hugging two of the prosecutors afterward. That they had once been colleagues doesn’t matter; she’s a judge now. That comes with immutable responsibilities embodied in the Code of Judicial Conduct. Those require her to suppress her personal emotions and show no favor to either side.
It was also her duty to control the emotions in her courtroom.
Nikolas Cruz had it coming. His lawyers didn’t.
It was Scherer herself who had ordered them to continue representing Cruz. More than three years ago, they suggested that a potential inheritance of $432,000 might legally disqualify him for the public defender’s services. She ruled that his victims and their families would have a stronger claim to the money; an appeals court agreed.
Once assigned, the Office of Public Defender had a legal, moral and professional responsibility to defend Cruz in every ethical way. That is what they did. That is what all good lawyers do.
It is similar to the responsibility of doctors, nurses, first responders and educators toward everyone in their care — notorious or infamous, rich or poor, personable or repugnant. Lawyers in private practice can be selective about their clients. Public defenders don’t have that luxury.
The horrifying details of the mass murder at Marjory Stoneman Douglas High School made the defense of Cruz painful and highly stressful. The public defender’s office provided psychological counseling for staff members.
Now, their recovery will be burdened not only by the abuse heaped on them in court but also by what’s coming over the phone and the internet.
“You f------ whore!” snarled a phone message.
“Please put a gun to your head & release the trigger,” said an email.
“Kill yourself, thank you,” said another.
Some but not all of the vitriol targeted Tamara Curtis, an assistant public defender who was seen making what appeared to be an obscene gesture at a camera crew she didn’t want showing the defense table. That’s properly the subject of a current Florida Bar investigation. There are rules of decorum for lawyers. Weekes says there will be an in-house investigation as well.
Scherer’s role warrants a parallel inquiry by the Judicial Qualifications Commission. The Florida Association of Criminal Defense Lawyers should consider filing a formal complaint with the JQC if it doesn’t get a satisfactory response from the one it has sent to Chief Circuit Judge Jack Tuter. For his part, he should consider reassigning Scherer to a civil docket. Every criminal case that brings the Public Defender’s office before her now represents a potential recusal motion.
Tuter wrote to Weekes last year that he had counseled Scherer regarding complaints the public defender had made to him on matters unrelated to the Cruz case.
“Judges are imperfect,” Tuter wrote. “They make mistakes and say things they should not. They are held to a higher standard and should be. I have spoken to the judge and counseled her on the issues you have raised and she assures me she understands the criticism and will do better.”
Responding to complaints from the defense bar, Tuter praised all parties for their professionalism during the Cruz trial.
But Scherer’s was not entirely praiseworthy. She missed the opportunity — and the duty — to remind the critics that Weekes and his staff were as essential to the trial as the prosecution and the judge were.
The American justice system depends upon the constitutional right to a fair trial and the competent assistance of counsel. The guiltier that someone seems to be, the more urgent are their constitutional rights. Otherwise, our courts would be no better than Russia’s.
With Cruz serving 34 consecutive life sentences without parole — one for each of his dead and wounded victims — a nagging question persists: Would it have been better for the victims’ families if then-State Attorney Mike Satz had been amenable at the outset to life sentences in exchange for guilty pleas?
“Forty-eight hours after the shooting, we were willing to plead guilty to the exact sentence he got over four years later, after much trauma and at least $7 million spent,” said Howard Finkelstein, who was public defender at the time of the killings.
Though it may not be apparent to all of them at this moment, the jury gave finality to the Parkland families. Public defenders deserve some credit for that. They also deserve an apology from Scherer.
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