From the President: Rolling Up Our Sleeves and Fighting the Death Penalty
By Nellie L. King, NACDL President
November 2022 issue of The Champion
The Broward County, Florida, sentencing jury verdict to spare the life of Nikolas Cruz, forever dubbed “The Parkland Shooter,” has now spurned attacks on the jurors, the lawyers who represented him, and the criminal legal system for allowing the death of another human being to be spared by a non-unanimous vote. The October 2022 outcry over the verdict renewed debate over whether a fractured human being like Mr. Cruz, who killed 17 people in a high school, would have received a death recommendation by some lower statistical number of the whole panel.
Changing the scales to favor outcomes demanded by community outrage, and the pain of young lives lost, fails to honor the gravity of the legal decision one must make to end someone’s life and the sanctity of the jurors’ decision in weighing these issues. Criticizing outcomes that factor in the frailties and circumstances of human experience (“There but for the Grace of God go I,” as my mother would say) derails the jury system and ignores the legal balancing of aggravators and mitigators attendant to death case deliberations.
It is best explained this way:
We recognize that the guilty man must be pointed out and condemned. But we recognize, too, that the power of government to point and to condemn is so great that it may reach even the innocent man. We therefore insist that only when a jury of the accused’s peers concurs in his guilt — only when each and all of them concur in his guilt — will we mark him down as guilty. In this sense, the requirement of a unanimous jury verdict is a compromise between a free society’s need to protect itself from crime and a free society’s need to protect itself from injustice. It is a compromise that an unfree society need never make.
Those were the words of the Honorable Milton S. Hirsch, Circuit Judge in Miami-Dade County, Florida, when he declared Florida’s death penalty scheme unconstitutional for lack of juror unanimity in 2016.
In August, I had the honor of being sworn in as president of NACDL by Judge Hirsch, one of the finest judges to grace the criminal bench in this country and my dear friend. Prior to his service on the bench, Judge Hirsch was a prominent defense lawyer, author of Florida’s Criminal Trial Procedure Handbook, and a Board member of NACDL. In that ruling, and notable others, Judge Hirsch possessed the courage to draw on the Constitution for guidance instead of the political winds that whip around Florida as severely and frequently as its hurricanes.
At that time, Florida had a “super majority” requirement that a 10–2 vote by the jury was sufficient to recommend a sentence of death. From the final words of his Order deeming this scheme unconstitutional, Judge Hirsch wrote:
For us as Floridians and Americans — for each and all of us — the voice of the jurors — each and all of the jurors — is the still, small voice of justice.
Respect for a jury’s verdict should not be something about which we need to remind Americans. Yet, this “still, small voice of justice of all of the jurors” must be revered and preserved. The public’s disdain for the Parkland jury’s decision, expressed in terms of “disgusting,” “shameful,” “criminal,” “rogue,” and more, besmirches the individuals that gave up their employment, their families, their recreational time, and their peace of mind to carefully adjudicate this man’s fate, as well as consider the lives lost as a result of this man’s actions.
The pitchfork rallying cries and press conferences spread to the Governor’s Office as well. Florida governor and candidate, Ron DeSantis (a lawyer), stated after the Parkland verdict: “This is a miscarriage of justice that did not honor the victims and the families, and all that they went through.” Yet, lawyers are held to a higher standard as far as comments that attack jurors, a jury’s decision, or the jury system. Promising to make his outrage political (not about assault weapons, but about jurors), DeSantis signaled he would use the Parkland verdict to lobby the Florida Legislature to upend unanimous death verdict requirements: “We need to do some reforms to be better serving victims of crimes and the families of crime victims and not always bend over backwards to try to do everything we need to do for the perpetrators of crimes.” His statements — which attack the jury’s decision, denigrate the sanctity of juror deliberations, and imply the weighing process bends in favor of the criminal accused — are, to those who understand and respect the Constitution and the concept of separation of powers, outrageous (and semantically clunky, I might add).
DeSantis’ likely move here is to revisit the jury unanimity requirement in death decisions, reversing the progress made possible by jurists like Milton Hirsch. DeSantis is emboldened by the 2020 Florida Supreme Court decision in State of Florida v. Poole,¹ which rejected key tenets of Hurst v. State.² Holding that “nothing in the [Poole] decision requires the Legislature to abandon the unanimity requirement,” the Florida Supreme Court neatly tees up the law change that will now likely proceed full steam ahead post-Parkland. The Court, which had swung right in the past several years, predictably delivered this conservative opportunity to pass, without check, tough on crime platforms by Florida’s governing body without fear of reversal.
Jury verdicts represent statements of the community. The backlash by some to the Cruz verdict, although understandable, belies waning public support for the death penalty. Since a peak of executions in the 1990s, there has been a significant drop in the number of executions performed in the 27 states that still embrace capital punishment.³ The trend is for life, not death, but the pendulum easily swings in the other direction.
I must also point to the work of Nikolas Cruz’s legal team. Before the jury was vilified, the lawyers were — and not just by the public, but seemingly, by the court. Cruz’s legal team, public defenders led by Melisa McNeill, served as the punching bags for the initial brunt of community outrage about this young man seeking to live and those that chose to support him. Yet, they tirelessly fought for him for years.
I imagine McNeill may be the closest thing Cruz had to a mother, even though it was just for the short and purpose-driven time she served as his counsel. When the verdicts were read, McNeill is the picture of that small voice of justice as well: her head bowed, hands posed as if in prayer. She took on a job no one else would take. The jury’s life sentence resulted from those public defenders seeing their client as human and salvageable. From their expertly woven presentation, the jurors weighed the totality of Nikolas Cruz’s life and opted to spare it. She is — they are — Liberty’s Last Champion.
And remember: the Cruz trial was not the first mass shooting trial to result in a life verdict. James Holmes, the Aurora, Colorado movie theater shooter, received a life sentence plus 3,318 years for killing 12 people and wounding 70 others. Notably, he, too, was represented by skilled and compassionate public defenders. His legal team included Colorado State Public Defender Tamara Brady, who delivered a closing argument that all those who represent the mentally ill in serious cases should watch.
These viewpoints do not represent a defense of the acts of violence. The outcry is understandable, as is the fervor to condemn — and shout, and cry, and rally — for something different. The pain of the victims’ families is so immense, it is beyond comprehension. Sitting in a courtroom for months on end, listening to the details of the horror Nikolas Cruz inflicted on their loved ones, is the worst torture imaginable. The result, however, was an option put to the jurors because we trust that body to weigh the facts and the evidence — the aggravators and the mitigators — in coming to their decision.
Justice is best attained through an understanding and respect for those serving in the system. The attack on the jurors in the Nikolas Cruz case is an attack on justice itself, as is the attack on the system that represents the decisional framework for death penalty deliberations. Notably, even under the former “super majority” vote tally system, Cruz would not have been sentenced to death, as three jurors voted for life after finding the aggravators outweighed the mitigators.
Defense lawyers play an important role in how things play out for the condemned, the system that adjudicates the condemned, and the communities that judge the condemned. And it is the public defenders who do the lion’s share of the heavy lifting across this country in the space of criminal defense. We owe them a debt of gratitude for their service. As Sister Helen Prejean tells it, “I saw the suffering and I let myself feel it. … I saw the injustice and was compelled to do something about it. I changed from being [someone] who only prayed for the suffering world to a woman with my sleeves rolled up, living my prayer.” Whatever happens from here forward is the next chapter in the life of the death penalty.
- State of Florida v. Poole, 297 So. 3d 487 (Fla. 2020).
- Hurst v. State, 202 So. 3d 40 (Fla. 2016).
About the Author
Nellie L. King (NACDL Life Member) is the owner of the Law Offices of Nellie L. King, P.A. She practices criminal defense in state and federal courts throughout the United States and lectures on criminal legal reform and constitutional issues. She is a Past President of the Florida Association of Criminal Defense Lawyers.
Nellie L. King
Law Offices of Nellie L. King, P.A.
West Palm Beach, Florida
© 2023, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.