Filing# 157609643 E-Filed 09/16/2022 05:12:14 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

BROWARD COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff
CASE NO: 180001958CF10A
V
JUDGE: SCHERER
NIKOLAS CRUZ,
Defendant
i

MOTION TO DISQUALIFY (D-333)

Our legalsystem based on the principlethat an independent, fair and competent

is

judiciarywill interpretand apply the laws that govern us. The role of the judiciaryis
central to American concepts ofjusticeand the rule of law. Intrinsic to all sections of
thisCode are the precepts that judges,individually must respect and
and collectively,
honor the judicialoffice as a publictrust and strive to enhance and maintain confidence
in our legal system. The judge is an arbiter of facts and law for the resolution of

disputesand a highly visible symbol of government under the rule of law.

Preamble to the Florida Code of Judicial Conduct.

Nikolas Cruz, by and throughundersignedcounsel, files this Motion to Disqualifypursuant

to Rule 2.330, Florida Rules of General Practice and Judicial Administration, and requests this

itself from
Court to enter an order disqualifying this case and as grounds therefore states the

following:

1. murder and 17 counts of attemptedfirst-

Mr. Cruz pledguiltyto 17 counts of first-degree

degree murder. The state is seekingimpositionof the death penalty.

2. This Court's comments made about lead defense counsel, on September 14, 2022, is the

zenith of the cumulative disdain the Court has publiclyexpressed.

3. After callingseveral lay witnesses and two experts, on September 12-13,2022, the defense

called two expert witnesses to discuss Mr. Cruz's diagnosis of neurodevelopmental

disorder from prenatalalcohol exposure.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/16/2022 05:12:13 PM.****
4. After the Court recessed for the evening on September 13,2022, it instructed the partiesto

arrive by 9: 15 a.m. the following day if they had any matters to bring to the Court's

attention priorto having the jury come in. On September 14, 2022, the partiesarrived in

the courtroom at 9: 15 a.m., as instructed because the defense did indeed have matters to

bring to the Court's attention. The Court took the bench at 10:00 a.m. While waiting for

Mr. Cruz and the Court to enter the courtroom, the defense was conferringwith the State

regardingevidence the defense was seekingto enter by way of a certification of a records

custodian.

5. Once Mr. Cruz and the Court entered the courtroom, the defense began enteringthe records

into evidence. In the midst of that process the Court began questioningdefense counsel

regardingwho its next witness was, and who would be conducting the direct examination

o f that witness.

6. Lead defense counsel announced that the defense would be restingits case. The following

exchange took place in open court, with the Mr. Cruz present, but not the jury:

THE COURT: Ijustwant to say this is the most uncalled for,unprofessional

way to try a case. You-all knew about this. And even if you didn't make

your decision until this morning, to have 22 people,plus all of the staff and
every attorney march into court, be waiting as if it's some kind of game
--

now I have to send them home. The State's not ready.They'renot going to
have a witness ready.We have another day wasted. I just-- I -- honestly,I
have never experienced a level of unprofessionalismin my career. It's
unbelievable.

MS. MCNEILLSo, Judge, you asked -- if we had any pretrialmatters, you

asked us to be here at 9:15. We
were here at 9:15 to discuss pretrial
matters.
I have been practicing
in this county for 22 years
-

THE COURT: You know what? I don't want to hear it. I don't want to hear
it.

MS. MCNEILL Well, Judge,you're insulting me on the record in front of

my client,and I believe that I should be able to defend myself.

2
 THE COURT: Okay. You can do that later,you can make your record later,
but you have been insultingme the entire trial,so -- blatantly.Taking
your headphones Arguing with me. Storming out. Coming late
off.

intentionally ifyou my rulings.So, quite frankly, this has been

don't like

long overdue; so please be seated. You can receive the evidence. I will
receive the evidence, and then you can put whatever you want on the record
at the end.

7. After bringingin the jury to allow the defense to rest, the Court discussed schedulingissues

with the jury.The Court stated:

So we did not anticipate that the defense would be restingtoday;therefore,

the State is not prepared to go forward with the rebuttal case until the 27th.

***

If I had known earlier that this was going to be happening, I would have --

I would not have dragged you-allin here.

8. Although advisingthe jury that it was at fault for any schedulingproblems, the Court

clearlyplaced blame for the jury'sinconvenience on the defense. The Court undermined

the defense to the jury that the defense did not provide the
by insinuating State or the Court

with information it should have in advance and as a result,they came to court unnecessarily

and will now have to wait almost two weeks to return for the State's rebuttal case. That is

patentlyfalse. The defense had absolutelyno legalobligationto advise the State or Court

in advance of its intention to rest its case. Moreover, the jury has to be present for the

defense to rest. Finally,the Court tied itself to the State when it indicated "we did not

and then "therefore,the State

anticipate" is not prepared."In essence the Court blamed the

defense and gave the jury an excuse for the State's inability
to move forward for nearly

two weeks.

9. The Court's statements criticizing

and chastising
defense counsel and blaming the defense

for the jury's inconvenience, have caused Mr. Cruz to reasonably fear that the Court is

3
 prejudicedagainsthis lawyers and him and that he will not receive a fair and impartialtrial

going forward.

10. The Court has now revealed that its animosity toward lead defense counsel is long-held

and has infected this entire trial. Without the benefit of knowing that the Court has held

this animosity,Mr. Cruz has accepted numerous adverse rulingsas any defendant would

in the normal course of a trial. However, now that the Court has made clear that its feelings

Mr. Cruz has a reasonable belief

and pervasive,
towards defense counsel are long-standing

that the rulingsof the Court have been influenced by its adverse feelingswhich do not go

to the legalissue before the Court. Mr. Cruz also has a reasonable belief that the Court's

rulinggoing forward will be influenced by the Court's adverse and pervasivefeelings

towards defense counsel and he will not receive a fair and impartialtrial.

11. In essence, and has now

what the Court has been feelingthroughout this trial, stated on

the record, has corruptedthis trial and should compel the grantingof both a mistrial and a

recusal so an unbiased juristcan properly try this case without the prejudice Mr. Cruz

suffers in this proceeding.

12. Although the Court's conduct on September 14, 2022, is,in and of itself,sufficient to

the statements made directly

warrant disqualification, to lead counsel that lead counsel "has

been insultingher the entire trial,"have informed Mr. Cruz and defense counsel's

understanding of previous actions and rulings of this Court demonstrating the Court's

animositytoward defense counsel throughoutthe proceedings.

13. These statements have caused Mr. Cruz to fear that he will not receive a fair trial or hearing

because ofthe Court's animosity toward his lawyers.

4
14. There have been several instances where the Court has shown this animosity towards

defense counsel, that are now cast in a new light.See, R.V. v. State, 44 So. 3d 180,183

(Fla.4
.th
DCA 2010) (although prior comments cannot be used as a timely basis for

"we see no reason

disqualification, why they cannot inform a [defendant'sl
understanding

was timely filed.").

of the comments from which the motion for disqualification Those

include:

a. September 2,2022: Prior to the commencement of the trial testimony,the State and

defense agreed at the end of each day o f trial to provide opposing counsel a list of the

witnesses who would be called the followingday. That agreement was honored by both

until September 1,2022, when the defense terminated the agreement, believing
parties

that it would be ineffective representationto provide the State with the names of

witnesses it intended to call in advance based on prosecutorial

misconduct in tampering

with a witness. See paragraph c below. On September 2, when the defense attempted

to call a Zoom witness, a platform used throughout the trial,the State objected.During

a sidebar conference, the State indicated that the defense had refused to honor its

agreement to disclose witnesses the day before, and as a result,the State would only

agree to allow the defense to use Zoom if the Court ordered that the State would be

permittedto use Zoom duringits rebuttal case as well. The Court then stated: "I need

you to say exactlywhat you're agreeing to in no uncertain terms. And make sure your

client is in agreement because I, quitefrankly,understand the State's concern at this

point,"dismissingthe defense's reason for revokingthe witness disclosure agreement.

After a brief recess, the State advised it would only agree to allow the defense to call

witnesses by Zoom if the defense agreed to disclose witnesses to the State the night

5
 before. After defense counsel indicated it would only agree to advise the State ofZoom

witnesses ahead of time, the Court again refused to allow the defense to state its

reasoning "I don't want to hear any reason about what

- it's yes or no. If you're not

agreeingto it,then they'renot agreeingto Zoom. All your witnesses will have to be

here in person. Make absolutelysure that that's what you want to do." The defense

by Zoom.
argued case law allows the Court in its discretion to allow witnesses to testify

The Court againindicated that "Well, I justsaid to you

- here's the deal. It's either all

or nothing."

b. September l, 2022: After the lunch recess, the Court made broad statements chastising

counsel, but looked directlyat the defense table during its comments and pointedits

fingertowards the defense table. The Court stated the following:

Just hold on a second because before we start anything,I have some things
that I need to say, and I want everybody to be present and I want everybody
to be listening, everybody to stop talkingand stop what they'redoing.Okay.
This whole situation here has become unprofessional, to say the least. There
should be -- when I when I say, "Court is back in session,"every lawyer
--

should be in their seats and paying attention. The fact that I have to ask
multipletimes whether one particular side is ready and no one is hearing
me because you-all are talkingto each other is rude. It's rude and it's
-
unacceptable.There needs to be everybody needs to be in their seat.
Everybody needs to be quiet. You all have computers. You can be instant
messaging to one another or passing notes and occasionallytalking or
talking to your client. But there's constant talking,there's constant
movement, there's printing, there's getting up and down. It's got to stop. This
is a courtroom. It needs to run like a courtroom. It's become somewhat of a

playground. Okay? I don't want anyone talking back and forth to one
another. It's inappropriate. You-all know better than that. Don't do it. Do
not shout out. Okay? Ifthere are technical difficulties, everyone needs to be
quiet.Because what's happening is somebody's tryingto help over here,
somebody's tryingto over here,this one gets up, this one gets up, and then
all,of a sudden, it's a free-for-all. This is a courtroom. It should be run in a
professionaland respectablemanner. There should be no shouting out. This
needs to be as quiet as a library. There's no printing.Again, when I'm

talking,everyone else needs to be quietand to be seated,and when there's

an objectionmade, everybody needs to stop talking. I don't want any rude -

6
 any further rude or disrespectbehavior. It's gotten quiteout of control.
-

Please do not move about this courtroom without askingpermission.Now

I, hate
- I have never been one of those
judges that requires,"Judge,
permission to do this,permission to do that,"but I don't think I have another
choice in this matter. Please do not get up out of your seat unless you have
an emergency or you ask permission.

Notwithstandingthe fact that the Court indicated it wanted everyone to hear its remarks

and everyone to follow them, the video recording ofthese proceedings shows the Court

toward the defense, as evidence by continually

directingthese remarks specifically

pointing at the defense and referring to "your client"

https://www.youtube.com/watch?v=dPbntLK6cxk

c. On September 1, 2022, after the partiesreturned from the lunch recess, the defense

advised the Court that it was in possession of an affidavit signed by defense witness

John Vesey. The affidavit indicated that he received a phone call from Attorney

ChristopherWhitelock, who represents several individuals employed by the Broward

County School District,but not Mr. Vesey, and Jeff Marcus. Mr. Vesey's affidavit

further stated that "I was very nervous and uncomfortable during and after this phone

call. I had the impressionthat they did not want me to testify."

The defense requested

a 24-hour recess to prepare a motion to preclude the State from seeking the death

misconduct. That request was denied, however the Court

penaltybased on prosecutorial

indicated that upon completion of the current witness' testimony,the defense could

have 15 minutes to write its motion. The jury left the courtroom at 2:39 p.m. The parties

went offthe record and were excused from the courtroom at 2:42 p.m. The Court told

the partiesthat they would need to be back in the courtroom at 2:55 p.m.- Defense

counsel asked for 30 minutes because ittakes 12 minutes to get to counsel's office from

the courtroom. The Court againdenied that request. At 2:55 p.m. only 13 minutes after

7
 the partieswere dismissed,the Court brought the jury back into the courtroom, without

lead counsel present, and over the defense team's objectionto proceeding without the

only first-chair death penaltyqualifiedlawyer on the team. This was clearlydone in an

effort to embarrass the defense in front of the jury and make the jury believe that

counsel was responsiblefor the delay.Lead counsel entered the courtroom at 2:59 p.m.,

17 minutes after being dismissed.

d.
Upon further reflection in lightofthis Court's admission ofits long-standing
animosity

for defense counsel on September 14, 2022, the defense has recalled numerous

and bias againstthe defense,which include:

instances of blatant hostility

i. A threat to reprimand defense counsel in front of the jury after a heated sidebar

discussion.

ii. Regularly admonishing defense counsel when more than one attorney attempts to

partic*atein an argument while allowingseveral members ofthe prosecutionteam

do so.

iii. Reprimanding defense counsel for speaking,even at a low volume, while in recess

but in the courtroom, while ignoringthe prosecutionteam's identical conduct.

iv. Refusal to allow the defense to address issues when the jury is waitingto come into

the courtroom, while allowingthe State to raise any issues it chooses at any time.

15. Each ofthese statements individually,

and all ofthese statements and actions taken together

have caused Mr. Cruz to have a reasonable belief that the Court is biased againsthim, and

his counsel, and he will not receive a fair and impartial

trial.

8
 ARGUMENT
Canon 3B(4) ofthe Judicial Code of Conduct states:

A judge shallbe patient,dignified, and courteous to litigants,jurors,witnesses,

lawyers, and others with whom the judge deals in an official capacity,and shall
requiresimilar conduct of lawyers,and of staff,court officials, and others subject
to the judge's direction and control.

Canon 3B(5) begins by statingthat "A judge shall perform judicialduties without bias or

A judge
prejudice. shall not, in the performance ofjudicialduties,by words or conduct manifest

bias or prejudice."

Finally,Canon 3E states:

(1) A judge disqualifyhimself or herself in a proceeding in which the judge's

shall

might reasonably be questioned,includingbut not limited to instances

impartiality
where:

(a) the judge has a personalbias or prejudiceconcerninga party or a party's

lawyer,or personalknowledge of disputedevidentiaryfacts concerningthe
proceeding;

The commentary to Cannon 3B(4) states that "The duty to hear all proceedings fairlyand with

patienceis not inconsistent with the duty to disposepromptly of the business of the court. Judges

can be efficient and business-like while being patientand deliberate." Likewise, the commentary

to Canon 3B(5) states that:

A judge must perform judicialduties impartiallyand fairly.

A judge who manifests
bias on any basis in a proceeding impairs the fairness of the proceeding and brings
the judiciaryinto disrepute. Facial expressionand body language,in addition to
oral communication, can give to partiesor lawyers in the proceeding,jurors,the
media and others an appearance of judicialbias. A judge must be alert to avoid
behavior that may be perceivedas prejudicial.

A judge's gratuitousremarks about counsel or her character undermine respect for the

judiciaryand the proceedings and leave an impression that the judge is not fair and impartial.

9
Edwards-Freeman v. State,138 So. 3d 507, 509 (Fla.4thDCA 2014). A trial court presentedwith

must limit
a motion to disqualify its review ofthe motion to making a "bare determination of legal

Bundy
sufficiency." v. Rudd, 366 So. 2d 440,442 (Fla.1978).1The purpose of such a limitation

is to ensure publicconfidence in the integrity system. In Livingstonv. State,441 So.

ofthe judicial

2d 1083 (Fla.1983),the Florida Supreme Court stated the following:

Prejudiceo f a judge is a delicate questionto raise but when raised as a bar to the
of a cause, if predicatedon grounds with a modicum of reason, the judge
trial

againstwhom raised,should be prompt to recuse himself. No judge under any

circumstances is warranted in sitting in the trial of a cause whose neutrality
is

shadowed or even questioned...It is a matter ofno concernwhatjudgepresides

in a particular cause, but it is a matter of grave concern that justice be
administered with dispatch,without fear or favor or the suspicion of such
attributes.

The judiciarycannot be too circumspect,neither should it be reluctant to retire

from a cause under circumstances that would shake the confidence of litigants
in a fair and impartialadjudication
of the issues raised.

Id. at 1085-1086 (emphasis added); see also Rogers v. State, 630 So. 2d 513, 514 (Fla.1993)

rule established to ensure public confidence in the integrityof the judicial

(disqualification

system).The motion in Livingston was based on a historyof animosity between capitaldefense

counsel and the Court. Finding Livingston'smotion legallysufficient insofar as he presented

grounds for a reasonable fear that he would not receive a fair the Court stated:
trial,

Given the record in this case the disputeswhich have arisen between
identifying
the judge and the lawyer over a substantial period of time, we must conclude that
the appellantcould have a reasonable fear that he could not receive a fair trial. This

1
Rule 2.330(f), Florida Rules of General Practice and Judicial Administration explicitlyprovides the following:

The judge against whom an initial motion to disqualifyunder subdivision (d) (1) is directed shall

of the motion and shall not pass on the truth of the facts
determine only the legalsufficiency

alleged. Ifthe motion is legallysufficient, the judge shall immediately enter an order granting

and proceed no further in the action. If any motion is legallyinsufficient, an order

disqualification
denying the motion shall immediately be entered. No other reason for denial shall be stated, and
an order of denial shall not take issue with the motion.

10
 is especiallytrue in this prosecutionfor first-degree murder in which appellant's
life is at stake and in which the circuit judge'ssentencingdecision is so important.

441 So. 2d at 1087. This Court's repeated improper and unjustifiedattacks on defense counsel

undermine the public'sconfidence in the integrity

of these proceedingsand the judicialsystem in

general.These statements have also caused Mr. Cruz to fear that he will not receive a fair trial or

hearing because of the Court's animosity toward his lawyers.The Court's open hostility
towards

defense counsel is troublingin lightof the

particularly fact that Mr. Cruz is facingthe ultimate

penaltyof death.

The proper avenue to seek of a

disqualification trial judge in Florida is through a Motion

for pursuant to Rule 2.330, Florida Rules of General Practice and Judicial
Disqualification

Administration, previously Florida Rule of Judicial Administration 2.160. See Brown v. St.

George Island Ltd, 561 So. 2d 253, 255 (Fla.1990).Attached to this motion is a sworn affidavit

signedby the Mr. Cruz allegingspecifically

the facts relied upon as grounds for his well-founded

fear that he will not receive a fair trial in this This motion
cause requiringdisqualification. is timely

filed. Michaud-Berger v. Hurley,601 So. 2d 441 (Fla.4th DCA 1992). This motion complies in

all respects with the requirementscontained in Rule 2.330.

Rule 2.330(f),Fla. Rules of General Practice and Judicial Administration provides that this

Court shall "determine only the legalsufficiencyof the motion and shall not pass on the truth of

the facts alleged. If the motion is legallysufficient,

the judge shall immediately enter an order

and proceed no further in the action."

grantingdisqualification

This motion is legallysufficient pursuant to Rule 2.330. The inquiryin a motion for

"focuses on the reasonableness of the defendant's belief that he or she will not
disqualification

receive a fair hearing." Rogers v. State,630 So. 2d 513, 515 (Fla.1993). The Court must review

the motion from the litigant's rather than [from]

perspectivequestioningthe "judge'simpartiality

11
 to act fairlyand impartially."
of his ability
the judge's [perspective] Livingston,441 So. 2d at

1334. The defendant "need only show a well-grounded fear" that this Court cannot provide a fair

hearing in this matter. Id. (citation

omitted).

The fact that this Court has repeatedlydemonstrated that defense counsel's necessary and

of her client
proper actions in her zealous representation
- a client who is facingthe death penalty

- are somehow inappropriateand unprofessionalhave caused the defendant to reasonably believe

that the court is not fair and impartial

in this matter and is biased againstthe defendant. Moreover,

Mr. Cruz additionally

has a reasonable fear that in the event the jury returns a verdict of death, the

Judge will not fairly override for a life sentence. See § 921.141(3)(a)2,
consider a judicial Fla. Stat.

(Ifthejury has recommended a sentence of.... each aggravating

Death, the court, after considering

factor found by the jury and all mitigating circumstances, may impose a sentence of life

ofparole or a sentence of death. The court may consider only

imprisonment without the possibility

an aggravatingfactor that was unanimously found to exist by the jury.)

In Jimenez v. Ratine, 954 So. 2d 706 (Fla.2d DCA 2007), the Second District Court of Appeal

where the
grantedprohibition trial court denied a motion for disqualification
based on its hostility

toward counsel. In her motion, Jimenez alleged(1) the judge stated that Jimenez's counsel was

indifferent to, or (2) the judge indicated

ignorantof,his professionalobligations; that she had to

routinelyremind Jimenez's counsel ofhis good faith (3)the judge

obligations; stated that she felt

it necessary to issue written orders in open court with witnesses present due to her feelingsabout

Jimenez's counsel; and (4) the judge found Jimenez's counsel's statements regarding his

understandingof Spanish to be "incredulous." The Court noted that "[t]hereis nothing in the

record indicatingthat Jimenez's counsel engaged in any behavior designed to provoke the judge,

nor that the amended motion to disqualifywas motivated by adverse rulings.Similarly,in the

12
instant case, the Court's remarks, prompted only by defense counsel unexpectedlyrestingits case,

"went beyond expressions of mere frustration,admonishment, or annoyance with counsel's

or abilities." The Court then indicated it had held an animosity toward defense
mannerisms, tactics,

counsel from the beginning of the trial. See also,Gates v. State,784 So. M 1235, 1237 (Fla.2d

DCA 2001) (a threat to humiliate defense counsel in front o f the jury was sufficient to create in

the defendant a reasonable fear that he would not receive a fair trial at the hands of the judge).

A trial court's prejudiceagainstan attorney may be grounds for disqualification

when such

prejudiceis of such a degree that it Franco

adversely [alffectsthe litigant." v. State, 777 So.2d

1138,1140 (Fla.4th DCA 2001). "The party moving for disqualification

does not need to establish

that the judge is actuallybiased againsthim or her, but the motion and affidavit are legally

sufficient if they demonstrate that party's'well grounded fear' of not receivinga fair trial." Rucks

v. State, 691 So.2d 976, 977 (Fla.2d DCA 1997).For all of these same reasons, Mr. Cruz to fears

that he will not receive a fair trial or hearingbecause of the Court's animositytoward his lawyers.

The court's actions have called into and resulted in the appearance
questionits impartiality

The Court repeatedly admonished the defense for

of impropriety requiringdisqualification.

-
engaging in actions that are perfectlylegaland ethical e.g. restingits case when it believed it

was the righttime, not when it was convenient for the Court, State or jury.The Court also has

steppedaway from its role as a neutral arbiter by forcingthe defense to disclose its witnesses in

advance to the state after one of the prosecuting attorneys participated

in an improper telephone

conversation with one o f the defense witnesses,by indicatingit would not exercise its discretion

to allow the defense to use Zoom if the defense did not acquiesce in the State's demand.

the Court coerced the defense into enteringinto an agreement to the detriment of its
Essentially,

client in order to present necessary These

mitigation. facts create the appearance of impropriety

13
and would cause a reasonable person to believe that the court is not fair and impartial.
For these

reasons, Mr. Cruz fears that he will not receive a fair trial or hearing because of the Court's

animosity toward his lawyers.

Moreover, while this Court' s prioremployment as an assistant state attorney is not grounds

for disqualification, with members of that office informs the

its continued and past relationships

defendant's belief that the Court's animosity and impatience, aimed solely at defense counsel,

regardlessof the situation,is evidence that this Court is not fair and impartialand that the

th
appearance of improprietyrequiresdisqualification.
See R.V. v. State,44 So. 3d 180, 182 (Fla.4

DCA 2010).
A fair trial in a fair tribunal is a basic requirementof due process. Fairness of course
requiresan absence of actual bias in the trial of cases. But our system of law has
always endeavored to prevent even the probabilityof unfairness. To this end no
man can be a judge in his own case and no man is permittedto try cases where he
has an interest in the outcome. That interest cannot be defined with precision.
Circumstances and relationshipsmust be considered. This Court has said,however,
that "Every procedure which would offer a possibletemptationto the average man
as a judge... not to hold the balance nice,clear,and true between the State and the
accused denies the latter due process of law." Tumey v. State of Ohio,1?13 U.S. 510
(1927).Such a stringent rule may sometimes bar trial byjudges who have no actual
bias and who would do their very best to weigh the scales ofjustice equallybetween
But
contendingparties. to high function in the best way "justicemust
perform its

Offutv. US., 348 U.S. 11,14 (1954).

the appearance ofjustice."
satisfy

In re Murchison, 349 U.S. 133,139 (1955).

The Florida Supreme Court has reasoned that "[t]he attitude of the judge and the

atmosphere of the court room should indeed be such that no matter what charge is lodged against

a litigant.. can approach the bar with every assurance that he [or she] is in a forum
[thelitigant]

where the judicialermine is purityand justice."Crosby v. State,97 So.

everythingthat it typifies,

2d 181, 184 (Fla.1957) (quotingDavis v. Parks, 141 Fla. 516, 194 So. 613, 615)).

As a result of the Court's comments about lead counsel, erupting after she simply

announced that the defense was restingits case, Mr. Cruz fears he cannot and will not receive a

14
fair trial. Moreover, the Court's statement that her admonishment of counsel was "long overdue"

and that the Court has felt this way for the entire trial,has caused Mr. Cruz to fear that the

remainder o f his trial will not be fair as well.

A denial of Mr. Cruz's requests in this matter would violate Mr. Cruz's rightsto due

process guaranteedby the Fifth and Fourteenth Amendments ofthe United States Constitution and

Article I, Section 9 of the Florida Constitution, a fair trial in the appropriatevenue, Broward

County, Florida guaranteed by the Sixth and Fourteenth Amendments of the United States

Constitution and Article I, Sections 16 and 22 of the Florida Constitution,privacy guaranteed by

the Fourth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I,

Section 23 of the Florida Constitution,equal protectionor basic rightsguaranteed by the

Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Florida

Constitution,and to be free from cruel and unusual punishment or excessive punishment as

guaranteedby the Eighth and Fourteenth Amendment ofthe United States Constitution and Article

I, Section 17 ofthe Florida Constitution.

WHEREFORE, based upon the foregoing,the defendant requests this Court to grant the

Motion of Judge, so another circuit court judge

for Disqualification may be randomly assignedto

presideover this case.

CERTIFICATE OF GOOD FAITH

I HEREBY CERTIFY that the motion and the defendant's statements contained in the

attached affidavit are made in good faith.

/s/ Melisa McNeill /s/ Tamara Curtis

Chie f Assistant Public Defender Assistant Public Defender

15
 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy o f the foregoinghas been furnished by

e-service to the Office ofthe State Attorney,Michael Satz, at and

courtdocs@saol7.state.fl.us,

Broward
the Honorable Elizabeth Scherer, at nlunsford@17th.flcourts.org, County Courthouse,

Fort Lauderdale, Florida,this September 16,2022.

GORDON WEEKES
Public Defender
17th Judicial Circuit

/s/ Melisa McNeill Tamara Curtis

/s/
Melisa McNeill Tamara Curtis
Chief Assistant Public Defender Assistant Public Defender
Fla.Bar No. 475408 Fla.Bar No. 712167
(954) 831-6750 (954) 831-6750
discovery@browarddefender.org discovery@browarddefender.org

16
 AFFIDAVIT OF DEFENDANT IN SUPPORT OF DEFENDANT'S MOTION
TO DISQUALIFY
The undersignedaffiant,
Nikolas Cruz, under penaltyof perjury,
deposes

and states on September 16,2022, as follows:

1. I am the defendant in this case and have pled to 17 counts of

premeditated

murder and 17 counts of premeditated

first-degree murder in case number

18-001958CF10A.

2. I was present for trial on September 14,2022, and and have been throughout

the entire trial.

3. I observed the followingand have discussed it with my lawyers:

a. On September 14, 2022, after my lawyer,Melisa MeNeill told the Court
that we would be restingour case, the Court stated "I justwant to say this

is the most uncalled for,unprofessional

way to try a case. You-all knew

about this. And even if you didn't make your decision until this
morning,

to have 22 people,
plus all of the staff and every attorney march into

court, be waitingas if ifs some kind of game -- now I have to send them

home. The State's not ready.They'renot going to have a witness ready.

We have another day wasted. I just-- I -- I have never

honestly,

a level of unprofessionalism
experienced in my career. It's unbelievable.'
,,
b. The Court' s statements cause me to reasonablyfear that the Court is

biased againstmy attorneys and me and I will not receive a fair and

impartial
trial.

c. The Court also revealed that her feelingstoward Ms. McNeill extended

me the entire
throughoutthe trial by saying"you have been insulting

so --
trial, blatantly.
I aking your
headphones off. Arguing with me.

Storming out. Coming late ifyou don't

intentionally like my rulings.So,
this has been long overdue; so pleasebe
,,
quitefrankly, seated.'

d. The Court' s statement causes me to believe

reasonably that it has disliked

my attorneys throughoutmy trial,

and it is biased againstme and my

lawyers and I will not receive a fair trial.

e. The Court has repeatedly

insulted my lawyers throughoutthe trial and

has caused me to believe it is biased againstme and my lawyers and I

will not receive a fair trial.The Court made the followingstatements

about my lawyers further causingme to believe it is prejudicedagainst

me and my lawyersand I will not receive a fair trial:

. On September1,2022, the Court said,"This whole situation here

has become unprofessional,"

and "I don't want any rude-any

further rude or behavior." The Court was pointing

disrespeetful at

the defense table and stating

"your client" at the time.

2
. Also on September 1,2022, the Court brought the jury in before

Ms. McNeill was present. I believe the Court did this to embarrass

defense counsel and make a pointto the jury that the delaywas

caused only by defense counsel. I have a reasonable fear that the

Court was attempting my defense

to poison the jury against

counsel and me and that I won't receive a fair trial because of the

court' s statements and action.

o
September2,2022, the Court stated "I need you to say exactly

what you're agreeingto in no uncertain terms. And make sure your

client is in agreement because I,quitefrankly,

understand the

State's concern at this point."The Court dismissed my lawyer's

reason for revokingthe witness disclosure agreement which was

that the State had tampered with one of our witnesses. The Court

further commented "Well, I justsaid to you - here's the deal. It's

either all or nothing."Again, the Court further demonstrated its

towards
prejudice me and my attorneys and favoritism towards the

State. I believe the Court was tryingto coerce my lawyersinto

agreeingto what the State wanted or she would not allow Zoom

counsel providingthe Court with caselaw and

testimonydespite

3
 the Florida Administrative Order which givesthe Court the

discretion to allow testimonyvia Zoom even if the State objects.

. The Court' s actions cause me to reasonablyfear that the Court is

my attorneys and
biased against me and I will not receive a fair

and impartial
trial.

o
September 13,2022, my lawyer advised me that,at sidebar,the
Court threatened my lawyerthat it would reprimandmy lawyer in
front ofthe juryby stating"I'm going to reprimandyou in front of

the jury."The Court' s statement causes me to reasonablybelieve

that the Court was biased againstmy attorneys and me and I will

not receive a fair trial.

f. There has been continuous disparaging

comments and actions from the

Court including
but not limited to: admonishing my lawyerswhen more

than one lawyer attempts to participate

in argument but allowingthe

State to do so, reprimandingmy lawyers for speakingwhile in recess but

ignoringthe State's same conduct and refusingto allow my lawyersto

address issues when the jury is waitingto come in but allowingthe State

to bringup any issues it chooses at anytime.The Court's statements and

actions cause me to reasonablyfear that the Court is biased againstmy

attorneys and me and I will not receive a fair and impartial

trial.

4
g. I have also observed the Court's negativeand disparagingnon-verbal

actions throughoutthe trial, her eyes

includingrolling when my lawyers

are speaking or wish to speak,turningher head in a dismissive manner

when my lawyers are speaking or tryingto speak.These non-verbal

actions cause me to reasonablyfear that the Court is biased againstmy

attorneys and me and I will not receive a fair and impartial

trial.

h. Because of the animositythat the Court has and has had towards my

lawyers throughoutthe entire trialI believe that I will not get a fair trial

and that the Court has made and is making its rulingsbased on its

negativefeelingsand obvious distain towards my lawyers,especially

Ms.

McNeill.

i. Also, the fact that Judge Scherer used to work for the State Attorney S

Office and has continuedto have relationships

with peoplefrom that

office,makes me think that me.

she is biased in their favor and against

For this reason as well I do not believe I will receive a fair trial.

j. I am prejudiced
by JudgeElizabeth Scherer's actions and words directed

towards my lawyers.I also feel that the and

Court has lost its neutrality

has bias towards my lawyers.In the event that the jury reaches a verdict

of death,I believe that the Court will not fairly

consider ajudicial

5
 override and I will suffer actual because of her lack of
prejudice

neutrality.

k. I do not believe that the and

Judge will perform her duties impartially

diligently.

1. I am seriouslyconcerned about Judge Elizabeth Scherer's impartiality

and ability
to be neutral in a proceedingwhere my life is literally
at stake.

m. I have a well-grounded
fear that I will not receive a fair trial at the hands

of Judge Elizabeth Scherer.

Based on this information,I have a well-grounded

fear that this Court is

againstme and my lawyers and

prejudiced that I have not and will not receive a

fair trial.

Pursuant to Florida Statute 92.525(2),under penalties

of perjury,
I declare

that I have read the foregoing

affidavit and that the facts stated in it are true.

8 8 1- /

Nik81as Cruz
Defendant