FORT LAUDERDALE, Fla. – A hearing in confessed Parkland shooter Nikolas Cruz’s jail guard battery case Thursday focused on some of the details of the upcoming trial.
A motion filed by the defense concerns jury instructions pertaining to the surveillance video of the Nov. 13, 2018 jail incident.
Last month, the defense wanted Judge Elizabeth Scherer to consider throwing the case out or dismiss arguably its star witness, surveillance video of the attack, arguing the Broward Sheriff’s Office did not preserve “all audio and video recordings of Mr. Cruz’s pod” and “all of the video of the location of the incident.”
Scherer denied that motion, saying video outside of what was preserved was “not material and exculpatory.”
The defense has now filed a motion seeking the following language be part of instructions read to the jury:
“If you find that the Broward Sheriff’s Office lost, destroyed, mutilated, altered, concealed or otherwise caused any evidence to be unavailable while it was within its possession, custody, or control; and the evidence would have been material in deciding the issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to the State. You may consider this, together this the other evidence, in rendering a verdict in this case.”
Prosecutor Maria Schneider argued that the judge already ruled that video outside of the preserved surveillance was immaterial to the case.
“I understand the court has already made the decision as to materiality in the last hearing,” defense attorney Jaclyn Broudy said. “That is what I am asking, if a juror makes that finding of materiality on his or her own.”
Scherer said she will take the motion under advisement and rule on it later.
David Weinstein, a former state and federal prosecutor who is not involved in the case but reviewed the motion, said the defense is trying to “create enough reasonable doubt in the mind of one or more jurors that it will either create a deadlocked jury or an outright acquittal.”
“Reasonable doubt may come from the evidence, a conflict in the evidence, or the lack of evidence,” he said. “The defense believes that BSO lost or intentionally destroyed the videotapes of the holding cell area which was under their exclusive control. The defense has the right to request a theory of defense instruction and it is within the judge’s discretion to either give that instruction or refuse their request. They are arguing that this evidence would have been favorable to the defendant and not favorable to the state.”
Jury selection for the battery case began earlier this week and just over 100 potential jurors passed a qualifying round. Final jury selection is scheduled for Oct. 18 with arguments beginning Oct. 19.
This case is separate from the trial on the Marjory Stoneman Douglas High School killings that is expected to follow later this year. But the outcome could have a significant impact on the capital homicide trial, because a conviction could be used as an aggravating factor in a potential penalty phase.
Also at the pre-trial hearing, Scherer ruled in favor of the state on two motions it filed related to excluding certain testimony.
One of those was related to an alleged comment the prosecutor said Cruz made about the victim in this case, Sgt. Raymond Beltran, to the effect of “I don’t like him,” arguing it is inadmissible hearsay.
The other was about limiting what questions can be asked about the victim’s out-of-state reckless driving incident. The state requested questions be limited “to the type of charge, when the offense is alleged to have occurred, whether he received any special treatment or benefit in the disposition of the case as a result of his testimony in this case and the fact that he is currently on probation for that offense.”
See the motion on the jury instructions below: