Courts Must Uphold Dignity and Impartiality, Not Tolerate Threats to Public Defenders
By Nellie L. King, NACDL President
Threats of violence targeting public figures — along with their family members and co-workers — are increasingly common. A 2021 survey by the National League of Cities shows 87% of public officials have observed a recent increase of threats against public officials, including 81% of respondents who reported having experienced harassment, threats, or violence. Concurrently, the tradition of broad, consensus-based denunciations of such threats by public officials on all sides of legal questions and policy issues appears to be shrinking. This is no coincidence.
But this opinion essay is not about threats to House Speaker Nancy Pelosi, and to her family circle and colleagues. Nor is this piece about political reactions to the incident in her San Francisco home which sent her husband Paul, 82, to the hospital. Instead, this is about a case of apparent judicial indifference to threats against public defenders and their children during the sentencing phase of the Parkland, Florida, mass shooting case. It’s also about the risks of a potential increase in harassment, threats, and violence against court officials that could result, and the damage that could do to our Constitutional right to trial.
The trial of Nikolas Cruz, following the mass shooting in Parkland, Florida, was undeniably a difficult one, the process agonizing for the families of the 17 lives lost. Expressions of anger, pain, grief, and loss represent human emotions — emotions expected in the sentencing phase of a death penalty case involving one of the biggest mass shootings in the history of this country. No matter the facts of the case, the devastation wrought by a citizen accused, or the outcome delivered by a jury, justice requires that one person remain steadfastly neutral in that courtroom: the judge.
The sanctity of our courtroom process is rooted in the common law adversarial system, whereby parties bring their disputes before a judge free from bias, preference, or personal animosity for one litigant versus another. When a judge takes the Oath of Office, they swear to uphold those tenets of fairness and objectivity. The ABA’s Model Code of Judicial Conduct, requires that jurists avoid impropriety, and the appearance of impropriety, and mandates that judges perform their duties impartially, with the highest of standards, and in conformance with the law. Canon 1 of the Florida Code of Judicial Conduct states:
“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.”
There is no place in American jurisprudence for repeated, systemic attacks on the defense team for their roles in defending Mr. Cruz. The attacks on the Public Defenders representing Mr. Cruz, led by attorney Melisa McNeill, came from all sides: the State, the public, the media, the victims’ families, and, most concerning, the judge. The judge sets the tone and the expectations for those who appear before the court. It is the judge’s responsibility to maintain decorum and control over their courtroom. It is also the judge’s responsibility to ensure that nothing said or done in the courtroom poses a threat to the personal safety of the litigants, or their representatives, who come there seeking access to justice.
Although the defense team faced a difficult and unpopular responsibility throughout their representation of Mr. Cruz, the anger and vitriol presented in the sentencing hearing on November 1, 2022, highlighted the disdain and lack of civility these public servants faced. When some of the victim impact statements reached a fevered pitch and it became personal, implicating the safety of the defense attorneys and their children, the hostile environment spurred Broward County’s elected Public Defender, Gordon Weekes, to address the Court on their behalf. Mr. Weekes asked Judge Elizabeth A. Scherer to admonish the State to “tap down” on these attacks. Mr. Weekes, in trying to protect his staff, felt the ill will was “building momentum,” particularly given the current climate of political violence.
Mr. Weekes, understandably, considered some witness statements directed at his attorneys an invitation to incite violence against his staff and their families. The environment, which was already tense and difficult, was ginned up to the point of being dangerous. Although Judge Scherer acknowledged there were inappropriate statements made towards the defense team, she refused to redress them. Indeed, instead of admonishing the vitriol, Judge Scherer’s remarks seemed to suggest that the defense team deserved it.
Mr. Weekes remained calm and respectful of Judge Scherer. Judge Scherer’s response to this elected constitutional officer — a career public servant and the first person of color to be elected Public Defender in the State of Florida — was to tell him he was “summarily dismissed.” Via her words, tone, and demeanor, the judge conveyed, in essence, that Mr. Weekes should “shut up and take it.” Judge Scherer further ordered a chief assistant in Mr. Weekes’ office to go sit in the back of the courtroom, removing him from his post at the defense table, despite the appearance of judicial bias and risk of prejudicing the defense.
The endorsement of the hostile rhetoric coming from the witness lectern was on full display by way of the Court’s inaction to the attacks on the defense and via Judge Scherer’s subsequent order that Mr. Weekes was “summarily dismissed” from the proceedings. This came after Mr. Weekes, again, rose and calmly attempted to address concerns over the hostility and derision directed at his staff coming not only from the witnesses and the State, but from the Judge. Judge Scherer failed to uphold the dignity, integrity, and high standards of the position she holds and she failed to act in a manner that is faithful to the law. Mr. Weekes maintained his professional and respectful demeanor throughout.
Further actions by Judge Scherer raise concerns over her independence and judgment when presiding over this matter. While Judge Scherer openly displayed animosity towards the defense team, she publicly displayed her affection and preference for the prosecution. The images of Judge Scherer coming down from the bench into the well of the courtroom to hug and support the prosecution team, as well as some of the victims’ families, speak volumes. The Judge’s actions represent the epitome of a failure to remain neutral and detached. Can future criminal defendants feel they will get a fair trial after the judge’s public displays of preference for the prosecution and their case?
Public defenders represent poor and underserved individuals. The vast majority of criminal cases in this country involve public defense representation (see also). Public defenders carry high student debt, handle large caseloads, represent people charged with serious crimes, and are wholly undervalued and underpaid by the states and communities they serve. We owe them a debt of gratitude for the critical role they play in our criminal legal system, not scorn and derision because they defend the cause of the unpopular.
To be sure, it could be claimed that the Cruz case is unusual because of the devastation Mr. Cruz wrought to so many families in the Marjorie Stoneman Douglas community, as well as the fear and hypervigilance now imposed on parents all over this country as they send their kids off to school every day. One might be inclined to let all of this go in this case because of this defendant. But it is in the prosecution of those most condemned by society — those facing life or death — that heightened judicial restraint and vigilant adherence to the rule of law must be undertaken. Public confidence in the outcome of the case and in our entire system of justice hinges on this, and the damage to all cases and litigants must be considered.
The criminal legal system suffers when jurists fail to maintain decorum in the courtroom, fail to offer and demand respect for the parties and the process, and conduct themselves in a manner that projects favoritism for one party and outright disdain for the other. A permissive atmosphere to threats against public officials leads to more threats, more harassment, and more violence. Judge Scherer’s inexcusable conduct in the sentencing phase of Mr. Cruz’s death penalty case undermines public confidence in the integrity and independence of all judges and disrespects our cherished Constitutional right to a fair trial.
Nellie L. King is President of the National Association of Criminal Defense Lawyers, the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, and a Past President of the Florida Association of Criminal Defense Lawyers. She owns The Law Offices of Nellie L. King, P.A. in West Palm Beach, Florida, where she practices exclusively criminal defense work in state and federal courts.