Filing # 99999688 E-Filed 12/09/2019 01:21:26 PM. IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA STATE OF FLORIDA CASE NO.: 15012208CF10A vs. JUDGE: SCHERER, NIKOLAS CRUZ Defendant. i MOTION FOR CONTINUANCE (D-110) ‘The Defendant, Nikolas Cruz, by and through his undersigned attorneys, pursuant to Rule 3.190(f), Florida Rules of inal Procedure, and the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Article 1, sections 9, 16, 17 and 22 of the Florida Constitution, and moves this Honorable Court for a continuance of the trial in this case. 1. INTRODUCTION ‘At the outset, this Court appeared to recognize the enormity of this case Mr. Cruzis charged with seventeen separate counts of First Degree Murder, and is facing the death penalty on each of the seventeen counts. Mr. Cruz is also charged with an additional seventeen separate counts of Attempted First Degree Murder, each punishable by up to LIFE in prison. The indictment names thirty four separate victims. In consideration of the specific facts of this case, the Court finds that this is not a typical felony case, nor even a typical capital felony case. (Exhibit 1, Court’s 4/23/2018 Order on Defendant's Motion for Court Review of Clerk’s Determination of Non-Indigency) (emphasis in original). Nonetheless, this Court has set the trial to begin on January 27, 2020, less than two years after the Mr. Cruz was arrested, and only 20 months after the State produced its initial discovery submission. This period of preparation time is significantly shorter than even the “typical capital felony case” and #6 FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/09/2019 01:21:25 PM.*#**shorter than the period of time allowed for preparation of several “typical” non-capital felony cases in this Court’s division. Should the trial proceed on January 27, 2020, the 20-month period defense counsel will have had to prepare the case for trial is less than half the median preparation time that Broward Circuit Courts have permitted for the preparation of capital cases over the past two decades, and would bring this case to trial faster than 33 of the 38 death penalty cases in Broward County since 1994,! (See Section III below). ‘Thus far, the defense has filed 109 motions and taken more than 141 depositions, and has continually advised this Court ofits trial preparations, Additionally, this Court is well aware of the difficulties defense counsel has had in its efforts to obtain from the State all of the discovery to which it is legally and constitutionally entitled, as the defense has filed 34 motions to compel discovery.” (Composite Exhibit 2, Defense Motions to Compel | Of those five cases, none of the defendants have actually been executed. In fact, of the four defendants in those five cases originally sentenced to death — two of the six defendants received life sentences after trial — three of the defendants have had their sentences vacated One is now serving a life sentence, one is awaiting a Hurst resentencing, and one is awaiting a Huff hearing on his Rule 3.851 motion alleging ineffective assistance of counsel during the penalty phase of his trial. The fourth, Herman Lindsey, had his conviction and sentence vacated and a judgment of acquittal was entered. Clearly, these cases illustrate that a quick trial and death sentence does not result in the kind of “closure” for the families of the victims or the community that the non-appealable imposition of agreed-to consecutive life sentences would provide. See Muller, Robert T., Death Penalty May not Bring Peace to Victim’s Families, https://www.psychologytoday.convus/blog/talking- about-trauma/201610/death-penalty-may-not-bring-peace-victims-families (The long judicial process between conviction and execution, which can span many years in some cases, also prolongs grief and pain for co-victims. Uncertainty prevails in the face of appeals, hearings, and trials, while increased publicity inherent in death-penalty cases exacerbates co-victims’ suffering. Through media exposure, they repeatedly telive traumatic events). 2 The last motion to compel discovery filed, D-105, is titled Defendant's Thirty Seventh Motion to Compel Discovery. The number of motions to compel discovery referenced in the text, 34, reflects that the defense inadvertently skipped from the thirtieth motion to compel to the thirty-second. Additionally, D-100 and D-101 were titled motions to compelDiscovery). Ironically, this Court has repeatedly praised defense counsel for their assiduous efforts, at the same time ignoring defense counsels’ admonitions that despite its unquestionable diligence and breakneck preparation speed, it will not be ready for trial in January 2020. Nonetheless, this Court set a January 27, 2020 trial date, without discussion or input from defense counsel, as is customary in Broward County. (Exhibit 3, Court's 10/17/19 Order Setting Dates for Pretrial Motions and for Trial) The Defense will not be ina position to adequately challenge the State’s evidence or effectively present its case on January 27, 2020. Mr. Cruz has a constitutional right to the effective assistance of counsel during both phases of his trial, Gardner v. Florida, 430 U.S. 349, 358 (1977), and to present a defense, Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Moreover, both the Due Process and Cruel and Unusual Punishment Clauses of the federal constitution guarantee Mr. Cruz a “greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604 (1978), The penalty of death is “unique in both its severity and finality.” Gardner, 430 U.S. at 357. Asa result, the Constitution demands “a greater degree of accuracy...than would be true in a noncapital case.” Gilmore v. Taylor, 508 U.S. 333, 342 (1993). The United States Supreme court has long recognized that this qualitative difference in the severity of the punishment creates a greater need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). See also Gregg v. Georgia, 428 U.S. 153 (1976); Ford v. Wainwright, 477 US. discovery, but should not have been, as the State agreed to the requests in those motions in advance.399 (1986); Harmelin v. Michigan, 501 U.S. 957 (1991); Monge v. California, 524 US. 721 (1998). The demands for heightened reliability, in tum, dictate that courts provide capital defendants like Mr. Cruz with special accommodations, considerations, and “protections that the Constitution nowhere else provides.” Harmelin, 501 U.S., at 994. Moreover, this ‘guarantee extends both to “procedural rules that tend{] to diminish the reliability of the sentencing determination,” as well as “rules that diminish the reliability of the guilt determination.” Beck v. Alabama, 447 U.S. 625, 637-638 (1980). Requiring defense counsel to proceed to trial on January 27, 2020, would violate the aforementioned state and federal constitutional rights and guarantees because counsel does not have sufficient time to adequately prepare in order to to give Mr. Cruz the fair trial, effective assistance of counsel, complete defense, and the fair and reliable sentencing proceeding to which he is constitutionally entitled. Accordingly, a continuance of the trial s justified for the following reasons, discussed more in depth below. 1, The scope of this investigation and massive amount of testimonial, physical, photographic, video and digital evidence this case has generated, which is continuing to trickle in on a weekly basis, requires more time to analyze and evaluate than this Court has allowed. This already enormous challenge has been exacerbated by the State’s late and disorganized production of discovery material, as well as its refusal at times to comply with its discovery obligations, requiring extensive efforts on the part of the defense to uncover and litigate. (See sections II and V(A) below).The impact this crime has had on the entire Broward County community will require defense counsel to investigate and implement particularly complex strategies — which will be presented to the Court in future pretrial motions ~ to reduce the likelihood of verdicts based on prejudice, emotion or community pressure. (See section V(B) below). The normal challenges to investigating potential mitigating factors in a high-profile capital case have been enormously increased by reluctance of some individuals and entities to assist the defense, as, well as pending litigation regarding the confidentiality of the identities of defense-retained experts which has halted that essential aspect of the defense case. (See section V(C) below), Defense counsel must be allowed to complete both the trial and penalty investigations in order to conduct meaningful and constitutionally adequate voir dire. (See section V(D) below) PROCEDURAL AND DISCOVERY HISTORY On February 14, 2018, Nikolas Cruz was arrested on 17 counts of first-degree murder and 17 counts of attempted first-degree murder. He was indicted on those charges by the Grand Jury on March 7, 2018. On March 13, 2018, the State filed a Notice of Intent to Seek the Death Penalty, pursuant to § 782.04(1)(b), Fla, Stat., and Rule 3.181, Fla. R Crim, P., listing seven aggravating factors it intends to prove at trial.> On April 16, 2018, the State filed another document titled “State’s Notice of Intent to Seek Death Penalty,” which lists the same seven ageravating factors, but amends the March 13 notice by including the names of each of the 17 alleged first-degree murder victims, 5Within one week of Mr. Cruz’s arrest, the Public Defender’s Office filed a motion seeking an indigency determination from this Court, based on media reports of the availability of life insurance and estate proceeds available to Mr. Cruz, The Court addressed the indigency at the arraignment on March 14, 2018. At that time, the Court requested that Mr. Cruz. complete another affidavit of indigent status On April 11, 2018, this Court held a hearing specifically addressing Mr. Cruz’s financial resources. The Clerk had made a determination that Mr. Cruz was not indigent, and the Defense requested that the Court review the Clerk’s determination, pursuant to § 27.52(4), Fla. Stat. In its April 23, 2018 Order finding the Defendant indigent and appointing the Public Defender, the Court noted that the cost of representation for such a massive case would “far exceed $25,000.” (Exhibit 1). Thus, it was nearly 10 weeks from the date of n was finally resolved. Within a few days of determining that Mr. Cruz is indigent and formally appointing the Public Defender, this Court began discussion of a discovery schedule, and ordered defense counsel to file its demand for discovery by May 4, 2018, Compliant with that order, defense counsel filed a limited demand for discovery on May 4, 2018.* (Exhibit 4). The thereby suggesting it intends to seek the death penalty on all 17 counts of first-degree murder. 4 Exhibit 5. The limited demand specifically excluded: (1) any body camera footage, video, or photographs derived from body camera footage or videos depicting the inside of the 1200 building at Marjory Stoneman Douglas High School; (2) any body camera footage, video, or photographs depicting any victims or their injuries, (3) any video evidence or photographs created from any of the above depicting the inside of the 1200 building at Marjory Stoneman Douglas High School; (4) any autopsy reports, Medical Examiner reports, or cause of death reports; (5) any medical reports related to any victim, including medical reports prepared by paramedics, emergency medical technicians, hospital personnel, or other first responders; (6) any crime scene photographs or video evidence depicting the 1200 building at Marjory Stoneman Douglas High School; and (7) any crime scene reconstruction or reenactments. The reason for the limited demand was to prevent 6State’s initial discovery submissions were filed and provided to the defense on May 22 and May 24, 2018. In the mere 18% months since the filing of initial discovery submissions, the State has filed 76 separate supplemental discovery submissions as recently as December 6, 2019. (Composite Exhibit 5). These discovery submissions range in size from one page or a witness list only (S-1A, S-10, S-14, $-15, S-17, S-18, $-35, S-43, S-44, S- 47, S-52, S-54) to 1.33 terabytes. (S-62). (Exhibit 6, ist containing quantity of data in each of the State’s Supplemental Discovery Submissions). Although many of these supplemental discovery submissions contain duplicates of material already provided in previous submissions, defense counsel is still required to examine the entire submission to locate discovery items not previously provided. The amount of duplicate discovery being provided has significantly frustrated defense counsels’ efforts to scrutinize all discovery in this case. The State has made no effort to advise the defense of the material that is duplicitous. Simply obtaining discovery from the State has been a time-consuming task in and of itself. Since receipt of the State’s initial discovery submission, defense counsel, after repeated unsuccessful attempts to obtain discovery through e-mail requests, has been forced to file 34 motions to compel various discovery items. At a July 16, 2018 hearing, defense counsel advised the Court that several police reports had been written, but not yet provided to the defense, including the report of lead detective John Curcio. This was in release of these items to the public due to Florida’s liberal public records laws. On May 23, 2019, the Governor of Florida signed SB 186, restricting release through a public records request, of government photo, audio and video recordings that show the deaths of three or more people, not including the perpetrator, in an incident of mass violence. On May 24, 2019, the defense filed a general demand for discovery. 4.response to the Court’s indication that it was contemplating a trial date in September 2019, amere 16 months after defense counsel received initial discovery from the State In an effort to remedy the issue of late discovery, this Court entered two separate orders regarding production of police reports, and further requested notice in the event there were any issues with noncompliance with those orders, At the July 16 hearing, this Court said: “State, 1 am considering issuing an order saying that all of your police reports need to be completed by the end of the week. I mean, I can’t believe that some are not completed.” This Court in fact issued an order that reads, in part: The lack of completed police reports is impeding the court’s ability to set a meaningful discovery schedule. As such, the court hereby orders as follows: ALL POLICE REPORTS of Category “A,” law enforcement witnesses, BSO or otherwise, documenting the February 14, 2018, shooting and subsequent criminal investigation which are in the process of being prepared, but remain incomplete to date, shall be completed and submitted to the State NO LATER THAN Friday, July 20, 2018. (Exhibit 7, Court’s 7/16/2018 Discovery Order Re: Outstanding/Incomplete Police Reports). By agreement of the parties, the July 20, 2018 deadline was extended to August 15, 2018 by order of the Court on July 18, 2018.5 (Exhibit 8, Court’s 7/18/2018 Order on Agreed Motion to Extend Time to Submit Police Reports). ‘On March 22, 2019, this Court again addressed the late discovery issue at a hearing held on two defense motions to compel evidence. During the hearing, this Court, in addressing the State Attorney's Office, stated, If you would please send another e-mail and put agencies on notice that if there are outstanding reports, or reports that have not been tured over at this time, and I find out about it or I’m made aware of it, I am going to In apparent compliance with the Court’s order requiring all police reports completed and turned over by August 15, 2018, Detective Curcio submitted a 425-page report on August 13, 2018. However, he submitted a 139-page supplemental report on November 13, 2018.have them in here to explain to me why a report would be turned over more than a year after the incident occurred. It’s not acceptable. I understand it’s not your fault but we've done - -I've done order and you all have taken many extra steps. That is the - -at this point unless it’s some kind of miscommunication, there should be no outstanding reports in that the particular police departments haven’t turned them over.”.....”You can tell them based on the hearing that we've had today, I have heard there are probably some outstanding reports. And if I learn about that, I’m going to be having them in here to explain to me why that is being done.”.....”I want them to comply immediately.”...."1'IL write an order that the state is going to reach out to the agencies and tell them that if there’s anything outstanding, it needs to be tumed over forthwith, period (Emphasis added) (Exhibit 9, Transcript of March 22, 2019 hearing). This hearing was scheduled to address, among other issues, the Defense's Thirty-Second Motion to Compel Discovery (D-51). Per this Court’s requests, on September 6, 2019, the Defense filed Defendant's Notice to the Court of Broward Sheriff's Office’s Non Compliance with this Court's Order (D-99) (Exhibit 10), The Notice recounted the discovery history in this case, recited this Court’s orders to the police agencies to complete, file and submit all reports, as well as the Court’s requests to be notified of any non-compliance by the police, The Defense, attaching several exhibits, explained that since the Court's most recent order, the Broward Sheriff's Office continued to turn over discovery items even as recently as August 28, 2019. On October 23, 2019, at an unrelated hearing, defense counsel reminded the Court that the Court had taken no action on D-99, and defense counsel requestd that the notice be addressed at the next scheduled hearing, November 18, 2019. The November hearing was cancelled by the court and reset for December 9, 2019. As of today, no action was taken by this Court in response to the defense notice. ‘On November 25, 2019, Defense counsel filed a Second Notice to the Court indicating that there have been numerous additional discovery items provided by lawenforcement since the defense filed its first notice of non-compliance on September 6, 2019. (Exhibit 11, Defendant's Second Notice to the Court of Broward Sheriff's Office Non-Compliance With This Court’s Order, D-109), Again, defense counsel listed various items provided by BSO which could have been, and should have been, provided months ago. ‘The State is providing supplemental discovery on a regular basis; the defense has received three to eight supplemental discovery submissions every month in 2019. Even afier this Court’s October 17, 2019 order setting trial in this case, the State has filed seven supplemental discovery submissions and listed 47 new “A” witnesses. (Composite Exhibit 5). To date, there has been more than four million “pages” of discovery submitted, in addition to the 1040 witnesses, videos, and audio files provided Il, THE CURRENT DISCOVERY SCHEDULE IS UNUSALLY BRIEF COMPARED TO THAT OF OTHER CAPITAL CASES IN BROWARD COUNTY There is no specific formula for determining the amount of time it should take for defense counsel to prepare a cay I case for trial, because every case is different in many relevant ways. Nonetheless, an examination of the history of the discovery periods for the capital cases that have been tried in Broward County over the last 25 years is illuminating. ‘The defense is aware of 38 capital trials held in Broward County for cases originating from 1994 forward. Of these 38 capital cases,’ Broward Circuit Courts have 6 ee Exhibit 12, Broward County Death Penalty Cases since 1994. While this list was generated by defense counsel after an extensive records search, it is possible that it is incomplete. The State Attorney’s Office is in a better position to provide the exact number and identifying information for Broward County capital cases over the past 25 years, as it has prosecuted all of them. 7 This number excludes retrials of the same defendant, resentencings of the same defendant and counts joint trials of co-defendants as one case. 10allowed an average of 52 months between the date of arrest and the start of trial, The median time from arrest to trial has been 41 months. By contrast, the time between the defendant’s arrest and the currently scheduled trial date of January 27, 2020, is about 23 months ~ less than half the average time in Broward County and 42% less than the median time. As of October 31, 2019, there appear to be 16 death penalty cases pending on the “750-day” list in Broward County.’ (Exhibit 13). As of October 31, 2019, the average amount of time as well as the median amount of time these cases have been pending is 46 months or about 3.88 years. Of those 16 cases, trial is currently being held on one of the oldest cases (State v. Richard Andres, 1S-192SCF10A and State v. Jonathan Gordon, 15- 1926CFIOA) after 56 months (4.7 years). Two more cases which have been pending for several years are specially set for trial January 13, 2020, State v. Steve Pierre, 14- 16989CFI0A and State v. Gerardo Lemus, 14-15659CF10A. Assuming trial on these cases starts in January 2020, they will have been pending over five years. If this case were to proceed to trial on January 27, 2020, it will never have appeared on the “750 day list;” it will have been pending only 712 days (23.5 months or 1.95 years). This is not to suggest that the trial date for this case should be determined based solely on the average or median amount of time afforded defendants in other Broward County capital cases. In fact, the trial date should not be determined based solely on any one factor. But, as noted below, this Court has never before presided over a capital trial as a judge and * Two of those cases have two defendant's each, but are counted as one case. In two cases not counted in the 16 cases, the death penalty was waived, but only after the defendants hhad been in custody for either 20 months (State v. Gerardo Lemus, 14-1S659CF10A) or 27 months (State v. Michael James, 16-7137CF10A). Notwithstanding the waivers, those cases are still pending, Whdid not litigate one as an Assistant State Attorney -- much less a case of this magnitude.” Accordingly, the contemporary practices of the judges in this circuit as they relate to the time they have allowed defense counsel to prepare their capital cases should be considered by the Court in making its determination of an appropriate tril date. IV. LAW REGARDING Mt INS TO CONTINUE ‘The Florida Rules of Criminal Procedure provide that “[o]n motion of the state or a defendant or on its own motion, the court may grant a continuance, in its discretion for good cause shown.” Rule 3.190(f), Fla. R. Crim. P. Generally, a trial court’s ruling on a ‘motion for continuance is within its sound discretion, and the action of the court will not be isturbed on appeal unless there is a clear showing that there has been a “palpable” abuse of discretion to the disadvantage of the accused, or, unless the rights of the accused might have been jeopardized by the continuance determination. See Robinson v. State, 561 So.2d 419, 420 (Fla. Ist DCA 1990); Smith v. State, 525 $0.2d 477, 479 (Fla. Ist DCA 1988); Mills v. State, 280 So.2d 35, 35 (Fla. 3d DCA 1973). Of course, criminal defendants and counsel are entitled to a reasonable time to prepare for trial. See Browne v. State, 102 So. 546, 546-47 (1924); Langon v. State, 791 So.2d 1105, 1113 (Fla. 4th DCA 1999); McKay v. State, 504 So.2d 1280 (Fla. Ist DCA 1986). The “common thread” connecting cases finding a “palpable” abuse of discretion in the denial of a continuance is that defense counsel was not afforded a reasonable opportunity to investigate and prepare any applicable defenses. D.N. v. State, 855 So.2d ° There is only one other case in Division FJ in which the State is seeking the death penalty, State of Florida v. Jeffery Sapp, 19-, but that case was filed in January 2019, and has not yet been set for trial. In another pending FJ case, State v. Vincent Stanley, 15-3009CF10A, the State filed a notice of intent to seek the death penalty, but waived it sometime in 2017. 12258, 260 (Fla. 4th DCA 2003) (ci 2 Weible v. State, 761 So.2d 469, 472 (Fla. 4th DCA 2000)). Additionally, courts should be lenient in allowing continuances in capital cases. ircuit judges, Judge O.H. Eaton, Jr., longtime teacher of the death penalty course for addressed continuances in his treatise used in that course Trial judges are all familiar with the vast body of case law that holds the granting or denying of a motion to continue rests within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is found. In a regular trial, trial judges are rarely reversed for failing to grant a continuance. But, in a death penalty trial, incvluding the penalty phase itself, judges are required to bend a little and be overly cautious in denying the defense a continuance, especially if it appears the death penalty is likely. This need for caution does not mean the Court should grant an unreasonable request. But, if the request is reasonable, and was not brought on by the defendant's own dilatory conduct, a better practice is to allow a continuance. “Super” due process means continuances muyst be allowed that would normally be denied Conducting the Penalty Phase of a Capital Case, O.H. Eaton, Jr., Florida College of Advanced Judicial Studies, Section 6.33 In McKay, the First District Court of Appeal identified seven criteria that a court of a motion for continuance amounts to a should consider in determining whether deni: palpable abuse of discretion based on lack of adequate time to prepare a defense. Those criteria include: 1, The time actually available for preparation; 2. The likelihood of prejudice from the denial; 3. The defendant's role in shortening preparation time; 4, The complexity of the case; 5. The availability of discovery; 6. The adequacy of counsel actually provided; and 137. The skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime. 504 So.2d at 1282. The Fourth District adopted this test in D.N., 855 So.2d at 260, explaining that “while not intending to imply that this list is exclusive, we agree that the factors are fair, well-considered and reasonable, and provide a sound basis to evaluate the present case.” /d, The Fourth District ultimately concluded in D.N., that “[hJad there been more time for discovery, itis possible that D.N.’s testimony could have been corroborated, and altemative legal theories could have been explored.” /d. The Fourth District again found an abuse of discretion where the trial court failed to review the criteria adopted in D.N. “before denying the motion simply to move the case to trial.” Brown v. State, 66 So. 3d 1046, 1049 (Fla. 4" DCA 2011). After conducting its ‘own examination of seven criteria, the Court concluded that although there had been prior continuances, “this unique set of circumstances warranted at the very least a full consideration of the facts to determine if a continuance was needed to ensure the defendant’s right to counsel and a fair trial.” Jd, at 1049, Similarly, in Boffo v. State, 272 So. 3d 876 (Fla. 5" DCA 2019), the Fifth District found an abuse of discretion where the trial court initially failed to consider the McKay factors and then ruling on the Defendant’s renewed motion for continuance, “failed to give certain factors due consideration.” Jd. at 878. ‘An examination of the McKay factors establishes that the defense request for a continuance is not unreasonable and a denial of this request would constitute an abuse of discret n. ()) The time actually available for preparation. As discussed in Section II above, the time the defense will have actually had to prepare this case for trial on January 27, 2020 14is 20 months; the State’s initial discovery submission was filed on May and 24, 2018. Given the amount of discovery, that is simply not enough time. The ABA Guidelines state that “Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty,” and that “{tJhe investigat n regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented.” (Exhibit 14, ABA Guideline 10.7(A)(1)). The ABA Standards for Criminal Justice similarly emphasize this fundamental duty: (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction, The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty. ‘ABA Standards for Criminal Justice (3d ed. 1993); Standard 4 - 4.1, The Defense Function, (Exhibit 15). The Commentary to ABA Guideline 10.7 sets out the following standard for culpability phase investigation: Guilv/Innocence 2. Potential Witnesses: a. Barring exceptional circumstances, counsel should seek out and interview potential witnesses, including, but not limited to: (1) eyewitnesses or other witnesses having purported knowledge of events surrounding the alleged offense itself, (2) potential alibi witnesses; (3) witnesses familiar with aspects of the client's life history that might affect the likelihood that the client committed the charged offense(s), and the degree of culpability for the offense, including:(a) members of the client’s immediate and extended family (b) neighbors, friends and acquaintances who knew the client or his family (©) former teachers, clergy, employers, co-workers, social service providers, and doctors (@) correctional, probation, or parole officers; (4) members of the victim’s family. b. Counsel should investigate all sources of possible impeachment of defense and prosecution witnesses, Commentary to ABA Guideline 10.7(A)(1)(See Exhibit 14, supra). (2) The likelihood of prejudice from the denial, Mr. Cruz will most certainly be prejudiced by the denial of this motion because the Defense will be unable even to review all of the discovery that has been, and continues to be provided, depose all “A” witnesses listed by the State, file all the motions that need to be filed, and investigate and prepare all mitigation that needs to be presented. Substantial investigation and preparation remains to be done in this case, which is neither factually nor legally simple or straight-forward. As noted throughout this motion, the defense has been unable to send its retained experts into the jail to meet with Mr. Cruz because of pending litigation regarding the confidentiality of the identity of those experts. Thus, this aspect of the defense case has not been started, let alone, completed Curailing the defense’s ability to complete its investigation would deny Mr. Cruz the “basic tools of an adequate defense... ,” Britt v. North Carolina, 404 U.S. 226, 227 (1971); see also Mason v. Arizona, 1345, 1351 (9th Cir. 1974) (constitutional right to investigative assistance), in violation of his most fundamental rights under the 5", 6, 8" and 14" Amendments to the United States Constitution and Article 1, sections 9, 16, 17 and 22 of the Florida Constitution. See also, Lightsey v. State, 364 So. 2d 72 (Fla. 2d DCA 1979) (trial court abused its discretion in denying defense motion for continuance wheredue to the tardiness of the State's responses to defendant's discovery demand, defendant ‘was unable to depose certain witnesses or to complete his investigation into the facts of the case prior to trial). Even if the defense were, as of this moment, in possession of all the discovery that exists in this case, it would still be unable to fully review it by the January 27, 2020 trial date, Forcing the defense to trial without even an opportunity to review the voluminous discovery or to fully formulate a defense cannot be reconciled with the Eighth Amendment’s requirement of reliability and will surely result in a reversal of any conviction and a retrial (3) The defendant's role in shortening preparation time. Neither Mr. Cruz, nor his counsel, have done anything to shorten the preparation time, As noted above, the initial delay between the date of indictment and the demand for discovery was a result of the issues surrounding the indigency determination, Since being appointed on the case in late April, 2018, the defense counsel has done everything within their power to prepare this case for trial, while, at the same time, preserving Mr. Cruz’s due process rights. (4) The complexity of the case. As this is a capital murder case, it is extraordinarily complex and time-consuming. As the ABA has stated: death penalty litigation is extraordinarily complex, both for the courts and for the attorneys involved. Not only do the cases incorporate the evidentiary and procedural issues that are associated with virtually every noncapital case, but they also involve a host of issues that are unique to capital cases. These include: Special voir dire of jurors; presentation of evidence going to guilt or innocence and punishment; special penalty procedures, including additional factual findings by the jury It is well established that representation of an individual in a capital case is an extraordinary responsibility placed on any lawyer.Counsel must not only be able to deal with the most serious crime - homicide - in the most difficult circumstances, but must also be thoroughly knowledgeable about a complex body of constitutional law and unusual procedures that do not apply in other criminal cases. American Bar Association, Toward A More Just And Effective System of Review in State Death Penalty Cases, at 43, 49, 50 (Oct. 1989). Aside from the general complexity involved in capital litigation, this case is particulary complex. There are almost 500 “A” listed witnesses, multiple law enforcement agencies conducting multiple investigations, voluminous electronic evidence, hundreds of videos and thousands of photographs. Litigation regarding admissibility of all of this evidence alone, including several motions to suppress evidence and motions in limine, will take months. (5) The availability of discovery. As discussed numerous times above, defense counsel has had to expend signficiant time and effort to obtain discovery, and although the reasons for that are unclear, the ultimate effect has been to impede the defense’s efforts to prepare for trial. (6) The adequacy of counsel actually provided. \nitially, lead counsel was the only full-time lawyer on the case, and another was added in June 2018, after the Court made its final determination that Mr. Cruz is indigent. As noted below in footnote 11, the other two full-time lawyers were brought onto the case less than nine months ago. This case has placed a tremendous strain on defense counsel’s office. Ultimately, four out of nine attorneys in the homicide division had to be removed from all other cases in order to meet the stringent demands of this Courts scheduling, (7) The skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime. The Sixth Amendment states, that “in all criminal prosecutions, the accused shall enjoy the right to ... the assistance of counsel for his.defense.” A fair trial is one “in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel embodied in the Sixth Amendment plays a crucial role in the adversarial system, because access to counsel's skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland v. Washington, 466 US. 668, 685 (1984) (quoting Adams v. United States ex rel. McCann, 317 U.S, 269, 275, 276, (1942)). For that reason, the Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, 0.14, (1970). The State of Florida has filed its notice of intent to seek the death penalty on 17 separate counts of first-degree murder. In our system of justice there is no greater sanetion that can be imposed upon a criminal defendant than the death penalty. Cases in which the State of Florida seeks the death penalty are treated differently by the courts. Heightened standards of due process apply due to the severity and finality of the death penalty in order to insure the reliable imposition of an irrevocable penalty. The Florida and U.S. Supreme Court have continually recognized that death is a different kind of punishment from any other and that the sentencing process, as well as the trial itself, must satisfy due process See Elledge v. State, 346 So.24 998 (Fla, 1977) (“heightened” standard of review); Mills v. Maryland, 486 U.S. 367, 376 (1988) (“In reviewing death sentences, the Court has demanded even greater certainty that the jury's conclusions rested on proper grounds.”); Proffitt v. Wainwright, 685 F.2d 1227, 1253 (11th Cir.1982) (“Reliability in the factfinding aspect of sentencing has been a comerstone of {the Supreme Court's death penalty] decisions.”), and Beck v. Alabama, 447 U.S. 625, 638 (1988) (same principles apply toguilt determination), “Where a defendant's life is at stake, the Court has been particularly sensitive to ensure that every safeguard is observed.” Gregg v. Georgia, 428 U.S. 153, 187 (1976) (plurality opinion) (citing cases). Due to this heightened standard of due process in death penalty cases Florida Rule of Criminal Procedure 3.112 sets forth minimum standards for attorneys in capital cases. The purpose of this rule is to ensure that competent representation will be provided to capital defendants in all cases. “Capital attomeys in death penalty cases should be required to perform at a level of an attorney reasonably skilled in the specialized practice of capital representation, zealously committed to the capital case, who has adequate time and resources for preparation,” Rule 3.112(a), Fla. R. Crim. P. ‘As members of the Florida Bar, defense counsel are also governed by Rules Regulating the Florida Bar, Rule 4 of the Rules Regulating the Florida Bar deals specifically with Rules of Professional Conducts and provides under 4-1.1 that a lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary. for representation In 2003, the American Bar Association set forth Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty cases. The objective of these Guidelines was to establish national standards of practice for the defense of capital cases in order to ensure adequate legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdictions. These Guidelines apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial andongoing investigation, pretrial proceedings, trial, post-conviction review, clemency proceedings and any connected litigation, Courts, as well as capital attomeys throughout the U.S., look to these Guidelines as standards of practice in the field of death penalty litigation. These Guidelines inform the qualification of defense counsel, establishment of performance standards, as well as the application of these performance standards, The Guidelines have been amended throughout the years. In the first edition of the guidelines the objective of providing counsel in a death penalty cases was to ensure “quality legal representation”. ‘The language has been amended to call for “high quality legal representation,” due to the extraordinary complexity and demand of capital cases, and the significantly greater degree of skill and experience on the part of defense counsel than is required in a noncapital case. ‘The guidelines were later supplemented to include the mitigation function of defense team in death penalty cases." These guidelines require defense counsel to conduct an “exhaustive and independent investigation of every aspect of the client’s character, history, record and any circumstances of the offense or other factors, which may provide a basis for a sentence less than death.” The guidelines note that “multiple interviews” of those familiar with the defendant will be necessary “to establish trust” to elicit sensitive information, Further, the defense team must obtain expert witnesses who can testify regarding the myriad subject matter relevant to mitigation. Counsel must also prepare a family history “extending at least three generations back.” ABA Guidelines and Standards for Capital Representation, 10.11(E)(2)(a) (2003) (Exhibit 17). 1° See Exhibit 16, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty CasesMr. Cruz is entitled to a full and complete defense at both the first and second phase of this proceeding. As such, itis impossible for Counsel to be adequately prepared for trial in the time allotted. At this time the defense has not fully developed mitigation that ‘would satisfy the standards set for by the ABA, the Florida Rules of Professional Conduct, the Florida Rules of Criminal Procedure and the standards that exist in the area of capital litigation, let alone the U.S. and Florida Constitutions. Trial on January 27, 2020 is unreasonable, arbitrary, and unsupported by the unique circumstances of this case. Objectively, trial on that date is far less than the average death penalty trial in Broward County. For the reasons below, defense counsel will not, and can not, be fully prepared to try this case on the purported trial date Vv. REASONS WHY A CONTINUANCE IS WARRANTED (A) The volume of potentially relevant lence is extraordinary. This case was investigated by multiple law enforcement agencies as well as meta investigations by the FDLE and MSDPSC, the FBI and Congress. The State has, to date, provided more than four million “pages” of discovery in addition to several more than 1,000 listed witnesses, thousands of photographs, hundreds of videos, phone, tablet and computer data, websites and social media sites. To put this into perspec , in order to have had at least one member of the defense team review every page of discovery, from the day it was provided — May 22, 2018 ~ until the first day of scheduled hearings on pretrial motions ~ May 22, 2018 —we would each have had to read 1,663 pages per day, seven days a week. (Exhibit 18). To expect the defense team to accomplish that is unreasonable.The defense has in no way been dilatory, but with regard to the 480 “A” listed State witnesses, there are still numerous depositions that need to be taken. In fact, 76 depositions of “A” witnesses have been scheduled into March 2020. Since October 2018, 141 depositions have been taken. The defense has subsequently received supplemental discovery involving 42 of those witnesses after their depositions were taken, Moreover, there were 82 depositions set and prepared, but were not taken for the following reasons: REASONS WHY DEPOSITION WAS NOT TAKEN NUMBER. Witness unavailable (not served, out of the state/county, 23 vacation/leave, no show, left the country) Witness did not have report or arrived with new report Defense counsel canceled or reset State canceled or requested reset “Courthouse closure (bomb threat/water pipe broke) |_Witess was reclassified to a “C” witness Parent of witness requested reset Attorney of witness requested reset Witness requested reset Officer called into the field/sick Ran out of time (other depositions ran over) Reset because Defense did not have body cam footage prior to | deposition Set in error Requested resets underscore another issue which is making it difficult for defense counsel to prepare for trial, Several witnesses have asked to reset or cancel their depositions because they are not ready to “relive the trauma” of the incident. The attomey hired by one such witness has recently filed a motion for protective order to prevent the defense from taking her deposition. (Exhibit 19). Notwithstanding defense counsel's efforts to accommodate the witness, her counsel asserts that “[NJo accommodation will reduce thesks attendant to an interrogation of her and the relevant facts of the shooting that I’m sure you need to question her about.” (Exhibit 20), Even if counsel is permitted to take the depositions scheduled from now until ions of even half of the State's witnesses.'! March, they will still not have completed deposit This falls perilously short of the type of trial preparation prescribed by the American Bar Association for death penalty counsel: With respect to the guilt/innocence phase, defense counsel must independently investigate the circumstances of the crime and all evidence— whether testimonial, forensic, or otherwise—purporting to inculpate the client. To assume the accuracy of whatever information the client may initially offer or the prosecutor may choose or be compelled to disclose is to render ineffective assistance of counsel. ... [T]he defense lawyer’s obligation includes not only finding, interviewing, and scrutinizing the backgrounds of potemtial prosecution witnesses, but also searching for any other potential witnesses who might challenge the prosecution’s version of events, and subjecting all forensic evidence to rigorous independent scrutiny. Further, notwithstanding the prosecution’s burden of proof on the capital charge, defense counsel may need to investigate possible affirmative defenses—ranging from absolute defenses to liability (e.g., self-defense or insanity) to partial defenses that might bar a death sentence (e.g., guilt of a lesser-included offense). In addition to investigating the alleged offense, counsel must also thoroughly investigate all events surrounding the arrest, particularly if the prosecution intends to introduce evidence obtained pursuant to alleged waivers by the defendant (¢.g., inculpatory statements or items recovered in searches of the accused’s home). See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty cases, 1.1 Commentary — Representation at Trial, 11-The Court has suggested a few times that defense counsel should start taking depositions ‘two days per week instead of just one, This is not feasible. It takes at least an entire day to prepare for the depositions, usually scheduled on Thursday. If counsel were to set depostions on another day, that would result in a minimum of two full days of preparation time and two full days of depositions, leaving only one day during the week for evidence review, investigation, motion drafting and other required casework. 24Given the amount of witnesses and evidence in this case, it would not have been possible for defense counsel to be prepared for a January 2020 trial, even if the State had put forth a good faith effort to comply with its discovery obligations. Under these circumstances, itis simply not feasible to expect the defense to be prepared to fulfill their obligations to provide constitutionally effective assistance in such a short period of time." Rompilla v. Beard, 545 U.S. 374 (2005) (defense counsel’s failure to review court file that they knew would be used in aggravation of sentence denied capital client’s Sixth Amendment right to effective assistance of counsel) (B)The impact this crime has had on the community requires a unique approach to pretrial motions and other methods to ensure a sentencing verdict based on the evidence as opposed to prejudice, emotion or community pressure. The media has portrayed the shooting as one of the deadliest mass shootings in recent U.S. history, about which thousands of news articles have been written, and news stories aired. There have been seven books and and two movies made about the shooting. ‘The incident has affected the daily lives of people throughout this community in the form ? Both the State and this Court repeatedly, albeit inaccurately, point to the number of public defenders working on this case full time. There are four; two of which were brought cn less than nine months ago in order to assist the original two full-time public defenders once it became clear that this case was far too massive for only two full-time lawyers, David Frankel, although part of the defense team, has only been miminally involved. He hhas not been able to assist with case preparation to the extent we had hoped, as he has his own civil and criminal practice to maintain full time, and is assisting the team pro bono. Ms. Cuddihy is not, and never has been, working on this case full time; she is an Executive Chief Assistant Public Defender, who oversees the entire Public Defender’s Office. By contrast, the State’s primary attorneys working on this case, other than the State Attomey himself, are “retired,” and working for a private staffing company. The practical result is that this case is not causing the same strain on the homicide or major crimes divisions of the State Attomey’s Office as it is the Public Defender’s Office 25of school safety policy changes and constant media attention. The publicity this case has received will make it extraordinarily difficult select a fair and impartial jury. Exacerbating the potential prejudice from the pretrial publicity and widespread impact is the fact the Court has scheduled the trial so that it will begin just before the second anniversary of the shootings at MSD High School. In fact, the ABC network recently reported that its documentary, “A ier Parkland,” which “chronicles the lives of the families of Marjory Stoneman Douglas High School in the aftermath of the deadly shooting in February 2018,” will be released in theaters in early 2020, the time trial is set to begin. (Exhibit 21), Thus, any temporal distance between the event and trial will be undermined by the flurry of publicity and emotion that will surface shortly after jury selection begins. Such publicity and emotion will most certainly threaten the fairness of the proceedings. Defense counsel will be required to examine all of the potential effects of this publicity and evidence on the potential jurors to ensure that their ultimate verdict is based on the evidence presented rather than prejudice, emotion or community pressure. See generally Gardner, 430 U.S. at 362 (due process violated by death sentence “that was imposed, at least in part, on the basis of information which [the defendant] had no opportunity to deny or explain.”). Accordingly, in addition to all the standard motions filed in capital cases, the defense is in the process of preparing several motions directed toward tempering the effect of the media attention and ensuring that Mr. Cruz receives the fair trial to he is guaranteed by the U.S. Constitution and Constitution of this State. (The defense has had unique challenges with regard to its investigation of mitigation, ‘The United States Supreme Court has repeatedly emphasized that the Sixth Amendment right to effective representation demands, in a capital case, the thorough 26investigation and development of mitigating circumstances. See Williams v. Taylor, 529 ULS. 362, 396 (2000) (finding that trial counsel has an “obligation to conduct a thorough [mitigation] investigation of the defendant’s background.”), Wiggins v. Smith, 539 US. 510 (2003) (failure of trial attomey to investigate defendant's background and present mitigating evidence violated Sixth Amendment right to effective assistance of counsel); Kenley v, Armontrout, 937 F.2d 1298, 1309 (8th Cir. 1991) (counsel ineffective for not producing non-statutory mitigation “{gliven the sympathetic light in which Kenley’s past behavior could have been presented, in the context of his family .. . background”); see also Lewis v. Dretke, 355 F.3d 364, at 368 (5th Cir, 2003) (“It is axiomatic — particularly since Wiggins — that [the decision not to present mitigating evidence] cannot be credited as calculated tactics or strategy unless it is grounded in sufficient facts, resulting in turn from an investigation that is at least adequate for that purpose.”) and most recently Rompilla v. Beard, 545 U.S. 374 (2005) Should Mr. Cruz be convicted of one or more capital felonies, his sentence “ultimately will turn on mitigating evidence and on the advocate’s ability to marshal and present that evidence.” Goodpaster, The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U. Rev. L. & Social Change 59, 83-85 (1986). “Without adequate time to prepare and present mitigating evidence, the procedural safeguards developed to protect the defendant's constitutional rights in a capital sentencing hearing are meaningless.” Note, A Capital Defendant’s Right to a Continuance Between the Two Phases of a Death Penalty Trial, 64 N.Y.U. L. Rev. 579, 582 (1989). Courts have found prejudicial error in cases where compelling mitigating evidence bearing on mental capacity existed but was not addressed at trial. See, e.g., Battenfield v.Gibson, 236 F.3d 1215, 1226 (10th Cir. 2001) (counsel ineffective in capital sentencing for failing to adequately investigate and present mitigating evidence of, inter alia, the defendant’s “involvement in a serious car accident at age 18, during which he sustained a serious head injury and after which he heavily used alcohol and drugs”); Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997), cert. denied, 523 U.S. 1145 (1998), Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988) (failure to conduct investigation into petitioner’s. background, to uncover mitigating, psychiatric, 1Q, and childhood information, and to present that information at penalty phase of death penalty case ineffective); Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988) (counsel ineffective for failing to investigate, present, and argue to jury at sentencing evidence of defendant's mental history and condition), Commonwealth vy. Alvarez, 740 N.E.2d 610 (Mass. 2000) (counsel ineffective in a murder case where failure to provide expert with all relevant medical records left expert unable to testify credibly about defendant’s organic brain damage and subjected him to devastati cross-examination), The American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (February, 2003), which are relied upon by state and federal courts to define the standards for representation capital cases, require that capital counsel conduct “thorough and independent investigations relating to the issues of both guilt and penalty”. Wiggins v. Smith, 123 S.Ct. 2527 (2003); Lewis v. Dretke, WL22998819 (5" Cir. 2003); Roberts v. Dretke, No, 02-51339 (5! Cir. January 9, 2004); Hamblin y. Mitchell, No. 95-02046 (6% Cir. December 29, 2003), Rompilla v. Beard, 545 US. 374 (2005).The State and Court must be mindful of the fact that because the Defendant was adopted by the Cruz family, two social histories must be prepared — one of his birth family and one of his adopted family.'? Additionally, developing the social history of Mr. Cruz’s adopted family has been particularly difficult as both his parents are now deceased. As a result, the defense team has been forced to seek the critical information through alternate, and more time-consuming routes. Moreover, many of the agencies which possess mitigating information about Mr. Cruzare reluctant to speak with defense counsel for fear of incurring civil liability, criminal liability or simply bad publicity. To date there are approximately a dozen civil suits pending that stem from the shooting, Most importantly, necessary mental health testing and examination has not even begun. The defense has been unable to have potential expert witnesses meet with Mr. Cruz in the jail as a result of this Court’s adverse ruling regarding the confidentiality of the identities of defense-retained experts. The Defense is currently seeking discretionary review in the Florida Supreme Court on the issue and is not expected to receive a decision on that issue prior to the January 27, 2020 trial date. Undersigned counsel would be ineffective for proceeding to trial without proper consultation with defense experts. See Elledge v. Dugger, 823 F.2d, 1439, 1444-45 (11th Cir. 1987) (“counsel’s failure at least to seek out an expert witness was outside the range of competent assistance”); Blake v. Kemp, 758 F.2d 523, 529 (11th Cir. 1985) (“courts have ‘long recognized a particularly critical relation between expert psychiatric assistance and minimally effective assistance 1} These social histories must go back at least three generations. ABA Guidelines and Standards for Capital Representation, 10.11(E)(2)(a) (2003) 29of counsel”); Profit v. Waldron, 831 F.2d 1245, 1248 (Sth Cir. 1987) (“[f}ailure to inves gate... mental history constitutes an impermissible deficiency in rendering effective assis- tance....”); see also Jones v. Thigpen, 788 F.2d 1101 (Sth Cir. 1986); Petty v. McCotter, 779 F.2d 299, 301-02 (Sth Cir. 1986); Johnson v. Estelle, 704 F.2d 232 (Sth Cir. 1983); Young v. Zant, 677 F.2d 792, 798 (1th Cir. 1982); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988). Thus far, the defense has retained multiple experts, but until these preliminary expert interviews may, in turn, reveal additional experts that need to be retained for purposes of the defenses’s mitigation case. Until the preliminary interviews are completed, defense counsel is not in position to know specifically when we will be fully ready to proceed to trial. Moreover, while trying the first phase, defense counsel will be unable to dedicate time to complete its mitigation investigation and presentation (D) Both the trial and penalty phase inves jury selection jons must be complete prior to “If counsel knows nothing more of the jurors, the single thing defense counsel must ascertain is whether the prospective juror can fairly and impartially consider the defense offered by the defendant.” (citing Lavado v. State, 492 So.2d 1322 (Fla, 1986)). Id. at 846 4 Granting a lengthy recess between the trial and penalty phase, should one be necessary, will not alleviate the prejudice to the Defendant from the Court’s refusal to order the redaction of the BSO Jail visitation logs. The Defense must be able to complete its entire defense/mitigation investigation prior to voir dire and the first trial. See (4) below. See also, Lavado ¥. State, 492 So. 2d 1322 (Fla. 1986) (defense counsel permitted to question prospective jurors on willingness to accept theory of defense); American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 10.10.1 (2003) (As the investigations mandated by Guideline 10.7 produce information, trial counsel should formulate a defense theory. Counsel should seek a theory that will be effective in connection with both guilt and penalty, and should seek to minimize any inconsistencies.) 30Jury selection is a meaningless process without the Defendant being afforded the opportunity to learn about the jurors, their beliefs, views and ability to accept the Defendant’s mitigation in light of the State’s aggravating circumstances, The ABA Guidelines emphasize two overriding principles in the voir dire portion of capital jury selection. ‘The first is that voir dire must be case-specific, and the second is, that counsel must be trained in the “intricate processes” of “death qualification.” ABA. Guideline 10,102 and Commentary. (Exhibit 22). According to the Guidelines, undersigned counsel is obliged to prepare “a case-specific set of voir dire questions,” and to plana strategy for selecting a jury “most favorable to the theories of mitigation that will be presented.” Commentary to ABA Guideline 10.10.2 (emphasis added). Commentary to ABA Guideline 10.10.2. Without access to all of the relevant mitigating evidence, however, defense counsel cannot meet this obligation. Moreover, research done by the Capital Jury Project supports the contention that defense counsel must have a fully formlulated first and second phase plan before jury selection.'* To determine when jurors decided what the punishment for a convicted murderer should be, CJP researchers asked: ‘After the jury found [DEFENDANT’S NAME] guilty of capital murder but before you heard any evidence or testimony about what the punishment should be, did you then think [DEFENDANT’S NAME] should be given: (1) a death sentence, (2) a life sentence, or were you (3) undecided? The following table represents the answers of these jurors in 12 states. 'S The Capital Jury Project is a nationwide study funded by the National Science Foundation. Since 1992, the CJP has interviewed over 1200 jurors from 353 capital trials in 14 States. See, Scott E. Sundby, War & Peace in the Jury Room: How Capital Juries Reach Unanimity, 62 Hastings L. J. 103, 105.n.3 (2010). 31‘Taste 1 Jurors’ Stanps On PUNISHMENT AT Gut TRIAL BY STATE Pereent taking each stand on punishment (No. of Stave Death Undecided Life jeros) ‘Abana a2 462 327 e) Galifornia 362 827 162 a4) Florida 443 B21 1 ar) Georgia 318 304 38 6) Kentucky HS a7 24 208) Misourt 3 B82 5 65) North Carotina 202 569 139 72) Pennsytvatia 362 47 192 an South Carolina 333 528 44 ay Texas 280 60 60 9) Virginia 132 528 295 rm All states 286 517 197 64) Thus, on average, half of capital jurors decide what the punishment should be, prior to the penalty phase commencing," Bowers further notes that less than 5% of jurors who took a stand, whether for a life sentence or a death sentence, were “not too sure” prior to receiving penalty phase evidence. The other 95% was split between jurors who were “absolutely convinced,” (approximately 64%) and “pretty sure,” (approximately 31%). /d. at 1439. Finally, and most importantly, the CJP research found that “[v]irtually six of ten jurors who thought at the guilt stage of the trial that either death or life was the right punishment held steadfastly to that conviction for the rest of the proceedings.” /d., at 1491 The studies cited to by the Capital Jury Project further indicate there are certain aggravators wherein certain potential jurors simply cannot be swayed from an automatic verdict of death. These aggravators strike such emotion in the potential jurors that they are completely closed off to hearing any mitigating evidence. Because the aggravators are '6 William J. Bowers, etal., Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilty-Trial Experience, and Premature Decision Making, 83 Comell L Rev. 1476 (1998). 32elements that the state must prove and because of the intense emo! nn surrounding certain aggravators, to prevent the Defendant from questioning jurors about their acceptance of mitigation in light of the aggravating circumstances has the potential to fatally hinder the Defendant's efforts to empanel a fair and impartial jury. Morgan v,, Illinois, 504 U.S. 719 (1992), is significant because the Court made it clear that attorneys must not be precluded from examining potential jurors about their ability to consider the mitigating evidence likely to be presented. Adequate voir dire on these subjects “plays a critical function” of insuring that the jury is not skewed toward a verdict of death. Jd, at 730, The capital defendant has a constitutional right to an individualized determination of the appropriate sentence, no matter how bad the e. In order to effectively conduct voir dire, the Defendant must be able to ask about a juror’s ability to give meaningful consideration and effect to specific types of mitigation. In Omre, the Florida Supreme Court held that it was error to refuse to allow the defendant to challenge for cause prospective jurors who could not consider remorse as a mitigator. Orme v. State, 25 80.34 536 (Fla, 2009). The defendant in Orme, after objection from the State and initial negative ruling by the court, was permitted to ask questions of the jurors about remorse because “both the prosecutor and the trial judge acknowledged that remorse could be considered as a mitigator in sentencing.” /d. at 543, The Court, in Orme, does not correct the record that remorse could be used as a mititgator and indicated that a challenge for cause should have been granted for those jurors who could not consider that specific mitigator. If the Defendant in the instant case is prohibited from asking about specific mitigators, then proper for cause challenges, as in Orme, cannot be made due to lack of knowledge about the jurors by the defendant. Also, from the Florida Supreme Court, the 33trial judge was not faulted for allowing defense counsel to ask jurors “about their views on various aspects of mitigation like mental health and the field of psychology.” Bradley State, 214 So.3d 648, 654 (Fla. 2017). Further, the fact that such questions were asked is cited as part of the reason the court did not find an abuse of discretion in other trial court rulings during voir dire Based on the CJP research, the ABA Guidelines, and case law addressing voir dire in capital cases, defense counsel must complete both its trial and penalty investigation and preparation prior to jury selection. Defense ocunsle must have a clear understanding of the mitigation they will present, prior to jury selection, in order to skillfully question potential juror’s regarding their ability 10 accept that mitigation, Defense counsel cannot, therefore, comply with the obligations placed upon them until they are able to formulate a case theory. Unfortunately, counsel have not yet been able to formulate such a theory for either phase of the trial for the reasons set forth herein, (B)A REVIEW OF THIS COURT’S CASES AS A CIRCUIT CRIMINAL JUDGE SHOWS THAT MR. CRUZ IS BEING TREATED DIFFERENTLY THAN OTHER DEFENDANTS TO HIS DETRIMENT A review of this Court’s cases from the time it took over Division FJ reveals that the Court is treating this case differently from other cases in Division FJ, to the detriment of Mr. Cruz. As noted above, this Court has never before presided over a capital trial, or even a first-degree murder trial. The Court has only presided over two second-degree murder trials and two manslaughter trials since taking the bench in the criminal division. One of the second-degree murder cases was pending in the division for 782 days (2.14 years) before trial, and included 36 witnesses and five supplemental discovery submissions. State v. Elijah Ellington, 12-18399CF10A. The other second-degree murder case, State v. 34Anthony Dippolito, 14-012359CF10A, was pending for 885 days (2.42 years), had 22 total witnesses and 11 supplemental discovery submis jons. ‘The two manslaughter cases tried by this Court, State v. Charles Orange, 14- 11197CFI0A and State v evor Taylor, 15-1239CF10A, were pending for 776 days (2.12 years) and 1057 days (2.9 years) respectively. These cases had 25 and 21 witnesses, respectively, and 13 and 18 supplemental discovery submissions filed, respectively. These cases, which were pending longer than Mr. Cruz’s case will have been by the Court's January 27, 2020 trial date, had significantly less witnesses, and considerably less supplemental discovery filings than Mr. Cruz’s case. As of October 31, 2019, Division FJ has nine pending cases on the “750-day” list,'” only two of which are set for trial. If those cases proceed to trial, they will be 1783 days/4.88 years old (State v. Vincent Stanley, infra) and 1442 days/3.95 years old (State v. Michael Leverett, infra). As of May 2019, this Court had 41 cases pending in ion FY that were older than Mr. Cruz’s case.'* The charges in these cases range from third-degree grand theft and resisting with violence, to drug trafficking, sexual assault, RICO and murder. Mr, Cruz’s case has been pending for 663 days,!? and this Court has given no explanation for the expedited trial date. ‘There is only one other case in Division FJ in which the State is seeking the death penalty, but that case was filed in January 2019. State of Florida v. Jeffery Sapp, 19- 106CFIOA. It appears the Court has held no hearings regarding a discovery schedule, has 17 The 750-day list consists of all in-custody defendants whose cases have been pending 750 days or longer and are in custody. The list is compiled by the Broward Sheriff's Office \8 Some of these cases have been resolved since May 2019, but were, at the time of resolution, older than that of Mr. Cruz. Prom the date of arrest, February 14, 2018, to December 9, 2019. 35not ordered a deadline for pretrial motions or set a tentative trial date as it did in this case begiming as early as six weeks after the Indictment. That case has 40 “A” witnesses and there has been no supplemental discovery filed since the initial submission on April 4, 2019. There are three other pending first-degree murder cases in Division FJ older than this case, where death has been waived. First, in State of Florida v. Vincent Stanley, 15- 3009CFIOA the Indictment issued on March 25, 2015, This Court set Mr. Stanley’s case for tial on January 21, 2020, one week prior to the trial date set in this case. By the date of trial, Mr. Stanley’s case will have been pending for almost three years longer than Mr. Cruz’s case. Thus, Mr. Stanley’s case, which attracted much less media attention” and is not a capital case being prosecuted by the outgoing State Attomey himself, was allowed to remain in Dit ision FJ for almost five years, with only 72 witnesses and 27 supplemental discovery submissions. Similarly, the case of State of Florida v. James Spreitzer, 16-008790CF10A, has been pending in division FJ for 1238 days (3.4 years). The case is still not set for trial, has only 29 witnesses, and there have been only seven supplemental discovery submissions filed since the initial submission in October 2016. No deadlines have been set by this Court for the filing of motions. A Google search of “James Spreitzer murder” yields one article two days after the murder on July 18, 2016. In State v. Terrance Walker, 18-1237CF10A, the Indictment was issued shortly before that in the instant case. Mr. Walker's case has 53 total witnesses, and there have 2” A Google search of “Vincent Stanley murder” and “Vincent Stanley Florida” yields exactly two articles, one on the day of his arrest and one the day after. On the other hand, a Google search of “Nikolas Cruz” yields over four million results. 36been nine supplemental discovery submissions filed since the initial submission on March 23, 2018. Interstingly, Mr. Walker has twice attempted to file a demand for speedy trial, but both were stricken by the Court because he has appointed counsel. Notwithstanding Mr. Walker's desire to obtain an expedited trial, this Court did not set any discovery schedule and the case is not yet set for trial. The Court granted a “final” continuance on the case on November 14, 2019, and set the case for Calendar Call, not trial, a few days after the instant case is set for trial. A Google search of “Terrance Lavern Walker murder” yields ‘two results, on the day of his arrest, four days after the incident, and a search of “Terrance Lavern Walker Broward” yields two additional articles on the same day. The Court has four other homicide or attempted homicide cases which have been pending in the division longer than the instant case and are not set for trial. They are: State v. Wisdom Williams, 17-8833CF10A: Attempted first-degree murder and possession of a firearm by a convicted felon. This case includes 12 total witnesses and two supplemental discovery submissions. It is currently set for trial on February 17, 2020, at which time it will have been pending 906 days (2.5 years) State v. Sadiki Clarke, 17-9084CF 10A: Second-degree murder with a firearm, 73 total witnesses and eight supplemental discovery submissions, set for calendar call January 16, 2020, on which it will have been pending 898 days. State v. Trevor Carter-Remy, 17-12041CF10A: Several counts related to a car accident involving three deaths and five severely injured victims, 93 total witnesses with 38 supplemental discovery submissions, set for calendar call December 19, 2019. Most of the Supplemental Discovery Submissions filed by the State over the last couple months 37have been removing witnesses fom the State’s witness list, This case has been pending 762 days and there has been no discovery scheduling order issued in this case. State v. James Temey, 18-1229CF10A: Attempted manslaughter with a firearm, 24 total witnesses and one supplemental discovery submission, set for calendar call February 6, 2020, on which date it will have been pending 735 days. ‘There are several non-homicide cases pending in Division FI that are older than the instant case, Some examples follow: State of Florida v. Emmanuel Ortega, 14-10618CF10A: the defendant was charged with grand theft auto and criminal use of personal information. He changed his plea from not guilty to no contest on June 19, 2019 after his case had been pending 1779 days (4.87 years). ‘There were 8 listed State witnesses and only one supplemental discovery submission which updated a witness’ address. State of Florida v. Jacalyn Danton, et al., 1S-3522CF10A: defendants charged with one count of racketeering and one count of conspiracy. Ms Danton’s case is currently set for trial in February 24,2020, 1810 days (4.95 years) after her March 12, 2015 arrest. There are 107 listed state witnesses and the State has provided supplemental discovery nine times. The Court waited more than three years to issue a scheduling order, at the request of the State. Had the defense in Ms. Danton’s case been placed on a deposition schedule similar to defense counsel’s in this case, he or she could have deposed all 107 state witnesses in about six or seven months from the date of the discovery submission. Defense counsel in this case has taken more depositions in 18 months than the total number of witnesses in Ms, Danton’s five-year old case State of Florida v. Reginald Arteta, 15-4323CF10A, and Alberto Ferreras, 15-4327CF10A: two defendants, former law enforcement officers, charged 38with unlawful compensation or reward for official behavior, a second- degree felony, and official misconduct. These cases are currently set for calendar call in February 6, 2020, with an arrest date of April 2, 2015. Several pretrial motions were heard within a few months of the defendants’ arrests, and notice was given for the taking of four defense depositions in September and October of 2016. The State has listed 34 witnesses and supplemented discovery four times. There has been no notice of taking deposition filed since February 6, 2017, and the case is not yet set for trial. State of Florida v. Amneris Lopez, \6-14006CF10A: defendant charged with drug trafficking, conspiracy, Medicaid fraud and money laundering. ‘The State has listed 24 Category A witnesses and submitted 6 supplemental discovery exhibits afier its initial submis ion. This case has been pending for 1097 days (3 years) and is currently set for calendar call December 12, 2019. State of Florida v. Jeremy Ruff, 17-1229CF10A: defendant charged with DUI manslaughter and DUI manslaughter (UBAL). The State, in this case, has listed 37 State witnesses, and supplemented discovery only four times. This Court granted a defense countinuance at a November 14,2019 calendar call, after two “final continuances” had been given in May and August 2019. There is no trial date set; the case is again set for calendar call on February 6, 2020, exactly three years from the date of arrest. State of Florida v. Michael Leverett, 16-133CF10A and 16-1348CF10A: defendant has two pending cases, one since January 4, 2016 and one since February 11, 2016. Mr. Leverett is charged in case 16-1348CFI0A with three counts of unlawful sexual activity. There are 27 witnesses and there have been seven supplemental discovery submissions, the most recent of which was submitted in April, 2019, Mr. Leverett’s 16-133CFI0A case charges two counts of battery on a law enforcement officer, resisting with 39.violence and capital sexual battery. That case has four witnesses and there have been two supplemental discovery submissions. On their December 16, 2019 trial date, these cases will be 1442 days (3.95 years) and 1404 days 3.85 years) old, respectively. State of Florida v. Jeffry Sean Parker, 17-962CF10A: defendant charged with two counts of third-degree child abuse. There are 13 witnesses in the case, but no notices of deposition have been filed. There have only been two supplemental discovery submissions since the initial discovery submission. The case is currently scheduled for a motion for downward departure on January 29, 2020, If the hearing proceeds as scheduled, this case will resolve 1094 days, the day before the third anniversary of Mr. Parker’s arrest State v. Muhammad Aslam, 17-6017CF10A: defendant charged with one count of unlawful sexual activity, a second-degree felony. The case has seven witnesses and there have been six supplemental discovery submissions. This case is set for trial on January 13, 2020. IF it proceeds to trial on that date, it will have been pending in the division for 984 days (2.7 years). Of particular interest is the case of State v. William Hutchinson, Jr., 16 12914CFIOA. In that case, the defendant was arrested on November 2, 2016, and charged with two counts of first-degree grand theft and two counts of second-degree grand theft. Hutchinson is an attorney accused of using clients’ settlement money for his own use. A Google search of “William Hutchinson Broward Grand Theft” revealed a total of four Within one month of his arrest, Mr. Hutchinson’s current privately-retained lawyer filed a notice of appearance. The State’s initial discovery submission contained seven witnesses and three more were added in October 2018. Prior to the October 18, 2018 40supplemental discovery submission, there had only been one other supplemental discovery submission filed in June 2018. In April 2018, the State filed a motion requesting that this Court set a discovery schedule, As a basis for its request, the State advised that in the 17 months the case had been pending, defense counsel had not taken a single deposition. The hearing on the State’s motion was set for April 12, 2018. No order setting a discovery schedule appears on that date, but the Court set a status hearing on May 22, 2018. Thus, any command by the court to defense counsel to hasten preparation of the case was not memorialized in filed order.”! At the May 22, 2018 hearing, this Court granted the defense yet another continuance. Afier granting four more defense continuances, this Court granted a “Final” continuance on June 20, 2019, and set the case for August 1, 2019. At some point, the case was set for a “Change of Plea” hearing on August 22, 2019, but that never occurred. Instead, on that date, the case was again set for trial on October 28, 2019. On October 14, two weeks prior to the trial date, the State supplemented discovery by listing one additional witness. Defense counsel immediately filed a motion for continuance, citing as “good cause,” the need to “investigate and prepare for the new witness” and that “undersigned counsel is preparing to submit a witness list tha cludes proposed expert witnesses. Undersinged counsel is in the process of determining which witnesses to submit as proposed experts.” 2 The only references to a “discovery schedule” other than the most recent order granting ‘a continuance until January 9, 2020, appear on two Court notices of hearing, one dated August 23, 2018, stating “all depos t.b. comp. by date,” and November 15, 2018, stating “3 months to prepare the case.” Clearly, the three months came and went with no trial aLThe Court granted defense counsel’s motion for a continuance, and set the case for calendar call on January 9, 2020. In its order granting the motion for a continuance, the Court ordered defense counsel to submit a witness list by November 22, 2019 and take all remaining depositions by December 31, 2019. Thus far, no defense witness list has been filed, and no notice of taking depositions has been filed for this new witness or any other state-listed wimess. In fact, during the three years the case has been pending, defense counsel has only attempted to take the deposition of one of the 10 previously listed witnesses, Certainly, if defense counsel in an 11-witness case is afforded more than 3 years to investigate and depose those witnesses, as well as to investigate and list his own witnesses, ‘a case such as Mr, Cruz’s is deserving of more than 20 months to complete those tasks; particularly where he, unlike Mr. Hutchinson, is facing the death penalty. When comparing Mr. Cruz’s case to Mr. Hutchinson's, or any of the other cases mentioned above, one is left to wonder why the Court is pushing this case to trial, yet allowing these others more than adequate time for trial preparation There is no common thread among these other cases. Some of these defendants have retained counsel, some have appointed. Some are homicide cases and some are not. ‘The cases involve charges that range from third-degree felonies to felonies punishable by life in prison. Some are very complex, and some are straightforward, yet all been given years of preparation time, Regardless of how complicated or massive these cases are, none have anywhere near the amount of witnesses or discovery as Mr. Cruz's case. There have only been two other cases in Division FJ in the past five years with more than 100 listed witnesses: State v. Jaclyn Danton, 15-3522CFI0A, et. al (124), discussed above, and a 42multiple defendant RICO case that has been pending for more than four years, fate v. Lynn Averill, 15-6870CF10A, ef al (106). Mr. Cruz’s case has 480 listed “A” witnesses, 1040 total witnesses, and discovery has been supplemented 76 times. The answer likely lies in the three disturbing factors that distinguish Mr. Cruz’s case from all of these other cases: (1) This case has received unprecedented media attention, (2the presiding Judge in Mr. Cruz’s case is up for re-election in 2020, and (3) the prosecuting attorney, this Court’s former boss and mentor, is urging this Court to push the ccase to trial in order to end his 44-year career with a conviction and death penalty verdict on one of the most notorious defendants in Broward County. As the Court has provided no sound justification for rushing this case to trial in under two years, when it has let other, less complex and less prominent cases linger in the division for many more years, it ean only be inferred that one or all of those three factors are motivating this Court. Such motivation violates not only Mr. Cruz’s right to due process, a fair trial and effective assistance of counsel, but also several Canons of the Code of Judicial Conduct. Fla, Code Jud. Conduct, Canon 2B, for example, states that a judge “shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.” Similarly, Canon 3B(2) requires that a judge be “faithful to the law and maintain professional competence in it, A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.” Finally, Canon 3B(10) states that a judge is prohibited from “mak[ing] pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office,” with respect to “parties or classes off parties, cases, controversies or issues likely to come before the court,” 43Even if the Court’s hastening of this case to trial has nothing to do with the media attention or its own upcoming election, clearly, the Court is attempting to appease the State Attorney’s need to begin trial in this case in the event that the newly-elected State Attorney chooses to replace him as lead counsel in the case, There can be no other basis for rushing this case in such an extreme manner. Clearly, the basis cannot be to provide closure to the victims and their families; pushing this case to a premature trial, in such a way as to run afoul of Mr. Cruz’s constitutional protections, will only result in the this case being reversed and remanded for a new trial based on error or ineffective assistance of counsel In stark contrast to this case, the last case tried by the State Attomey was a three- defendant case involving the murder one one person, a law enforcement officer. When the trial on that case began in September 2016, it was almost 10 years old. Without ever articulating a single legally relevant justification for expediting this case to trial, this Court, and the State of Florida, are once again exhibiting a complete lack of appreciation for the standard of conduct demanded from those participating in death penalty cases, See Wellons v. Hall, 558 U.S. 220 (2010) (“from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”). Given the “vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion,” Gardner v, Florida, 430U.S 349, 357 (1977), it would be constitutionally intolerable to adhere to any trial schedule that would allow time for only the State to be prepared Defense counsel are not asking for several years of additional preparation time. Counsel are simply simply asking that this Court consider the factors listed in Section IILabove, as well as the volume of evidence and number of A-listed witnesses, and give them the appropriate amount of time for preparation of a case of this magnitude. So in that sense, Mr, Cruz is essentially asking to be treated the same as all other defendants in this Court’s division and capital defendants in Broward County. As Florida Supreme Court Justice William H. Ellis eloquently and astutely explained nearly a century ago: Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into a trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law, it destroys confidence in the institutions of free America and brings our very government into disrepute. Coker v. State, 89 So. 222 (Fla. 1921). A continuance is necessary in order to secure the defendant's rights to due process of law, the effective assistance of counsel, and an individualized and non-arbitrary capital sentencing determination under Article 1, sections 9, 16 and 17 of the Florida Constitution, and the Fifth, Sixth and Eighth and Fourteenth Amendments to the U.S. Constitution. WHEREFORE, the Defendant respectfully requests this Honorable Court to grant this Motion for Continuance and set the Trial in this case after affording defene counsel a reasonable time to prepare, as it appears to do with every other felony trial in Division FY. WE HEREBY CERTIFY that this continuance is sought, pursuant to Rule 3.1990(a), for good cause shown, to allow for adequate preparation, and not for purposes of delay. 4sCERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-service to the Office of the State Attorney, Michael Satz, at couridocs@sao17 siate.fl.us, Broward County Courthouse, Fort Lauderdale, Florida, this December 9, 2019. HOWARD FINKELSTEIN Public Defender 17th Judicial Circuit si Melisa McNeill Melisa McNeill Assistant Public Defender Fla, Bar No. 475408 (954) 831-6750 discovery@browarddefender.org is! Tamara Curtis Tamara Curt Assistant Pul Fla. Bar No. (954) 831-6750 discovery @browarddefender.org 46 si Gabriel Ermine Gabriel Ermine Assistant Public Defender Fla. Bar No. (954) 831-6750 discovery@browarddefender.org s! Joseph Burke Joseph Burke Assistant Public Defender Fla. Bar. No. (954) 831-6750 discovery @browarddefender.org