IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA,
Plaintiff, CASE NO.: 18-001958CF10A
v. JUDGE: SCHERER
NIKOLAS CRUZ,
AMENDED (SF-221)
Defendant.

STATE’S AMENDED RESPONSE (SF-221) TO DEFENDANT’S MOTION

TO DISQUALIFY (D-333)

COMES NOW the State of Florida, by and through the undersigned Assistant State

Attorney, and files the State’s Amended Response to Defendant’s Motion to Disqualify (D-333):

1. This Court’s determination of the Defendant’s Motion to Disqualify is limited as to

whether the motion is legally sufficient on its face. This Court may only determine

the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.

Florida Rule of Judicial Administration 2.330 (h). This Court must not respond to

any allegations. Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978); Nassetta v. Kaplan, 557

So. 2d 919 (Fla. 4th DCA 1990).

2. A motion to disqualify shall be filed within a reasonable time not to exceed 20 days

after discovery by the party or party’s counsel, whichever is earlier, of the facts

constituting the grounds for the motion. A motion made during hearing or trial shall

be ruled on immediately. Florida Rule of Judicial Administration 2.330 (g).

3. An order of denial shall not take issue with the motion. Florida Rule of Judicial

Administration 2.330 (h). The order of denial should only state that the motion is

legally insufficient. Id.

4. The Defendant’s Motion is legally insufficient on its face and must be denied

pursuant to Florida Rule of Judicial Administration 2.330.

5. Judicial comments, even of a critical or hostile nature, are not grounds for

disqualification. As held in Koelemij v. State, 285 So. 3d 376 (Fla. 1st DCA 2019):

“A trial judge’s expression of dissatisfaction with counsel or a

client’s behavior alone does not give rise to a reasonable belief that
the trial judge is biased and the client cannot receive a fair trial.”
Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996).
Notably, the United States Supreme Court has explained:

[J]udicial remarks during the course of a trial that

are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or
antagonism as to make fair judgment
impossible…Not establishing bias or partiality,
however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and
women, even after having been confirmed as federal
judges, sometimes display. A judge’s ordinary
efforts at courtroom administration – even a stern
and short-tempered judge’s ordinary efforts at
courtroom administration – remain immune.

Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127
L.Ed. 2d 474 (1994). The Fourth Circuit has further elaborated:

The high bar set by Liteky for predispositional

recusals makes good sense. If it were otherwise—if
strong views on a matter were disqualifying – then a
judge would hardly have the freedom to be a
judge… This is not to say judicial distemper is
somehow admirable. It is not. But the alternative
of purging through recusal motions all those with
strong or strongly stated beliefs not only threatens
limitless gamesmanship but the fearless
administration of justice itself.

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 Belue v. Leventhal, 640 F.3d 567, 573-74 (4th Cir. 2011); see also
Gordon v. Lafler, 710 F. App’x 654, 663 (6th Cir. 2017) (“Though
trial by an impartial judge is a core right, we must consider the
judge’s alleged bias in light of his or her role in the courtroom.
During a jury trial, ‘the judge is not a mere moderator, but is the
governor of the trial for the purpose of assuring its proper
conduct.’”) (quoting Querica v. United States, 289 U.S. 466, 469,
53 S.Ct 698, 77 L.Ed. 1321 (1933)); Todd, 40 F. App’x at 27
(“Trial judges must be given wide latitude in conducting their
trials. …[A] trial judge has a duty ‘to conduct the trial in an orderly
fashion, to insure that the issues are not obscured and to act at all
times with a view toward eliciting the truth.’”) (quoting United
States v. Tilton 714 F.2d 642, 643 (6th Cir. 1983)).

6. The transcript of the proceedings before this Court on September 14, 2022 at pages 5

through 15 establish that the defense team mislead this Court as to the presentation of

their case for that day. Specifically, four members of the defense team, when directly

asked about the next witness to be called, failed to be candid with this Court. This

adversely impacted the court schedule. This Court was justifiably concerned with

defense counsels’ lack of candor. This lack of candor affected the 22 jurors who had

been summoned to court that day and the otherwise efficient running of the penalty

phase proceedings. The record is clear, as demonstrated below:

The following proceedings were held outside the presence of the jury:

THE COURT: Court is back in session. We have all of the jurors

present. The lawyers are present; the Defendant is present. I have not

been presented with any type of pleading; so I'm going to assume

everyone is ready to rock and roll.

MS. MCCANN: Your Honor, before we get started, before we rock and

roll, I just don't know who the defense is calling next.

THE COURT: Okay.

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MS. MCCANN: But I just want to confirm on the record that the

defense has spoken to their witness or witnesses, that they will abide

by this Court's prior ruling regarding hearsay testimony not coming

in between Heather Holmes and Brenda Woodard.

THE COURT: Okay. I assume you've done that?

MS. MCNEILL: Yes, ma'am.

THE COURT: Okay. Mr. Secor, are you questioning the witness?

MR. SECOR: No.

MS. BASHIMAM: No, Judge. Before we bring in the jury -- and if I

could please sit, because I'm having a back issue.

THE COURT: No problem.

MS. BASHIMAM: We would like to enter some records, go ahead and

enter them into evidence now. The State has no objection.

THE COURT: Okay.

MS. BASHIMAM: They're aware. So if we can go through those

quickly.

THE COURT: Sure.

MR. MARCUS: I do have an objection.

MS. BASHIMAM: Okay.

MR. MARCUS: And I think it's one thing.

MS. BASHIMAM: Okay.

MR. MARCUS: If you want to go through them one by one.

MS. BASHIMAM: Okay.

THE COURT: Just go ahead and read it off like you're entering, and I'll

ask the State if they have an objection to each one, like we do in front of

the jury. Okay?

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MS. BASHIMAM: Yes, Judge.

The first one would be -- is marked as D1Z, and those are Tomorrow's

Rainbow medical records.

THE COURT: D1Z? You mean 1Z?

MS. BASHIMAM: Yeah. Well, yeah, Defense 1Z.

THE COURT: I wasn't sure if you created a new numbering system.

MS. BASHIMAM: No.

THE COURT: All right. 1Z –

MR. MARCUS: No objection.

THE COURT: State?

All right. 1Z without objection will be entered as 87.

(Defendant's No. 87, Tomorrow's Rainbow Medical Records, was

received in Evidence.)

MS. BASHIMAM: 2B, as in "boy," Judge. And those are the Dollar

Tree employment records.

MR. MARCUS: No objection.

THE COURT: Without objection, 2B will be received as Defense 88.

(Defendant's No. 88, Dollar Tree Employment Records, was received in

Evidence.)

MS. BASHIMAM: The next one is 2E, as in "echo." And these are

Medicare information from Social Security Administration records.

MR. MARCUS: I asked to see those. I don't think I have seen them yet.

Can we skip this one for a second?

MS. BASHIMAM: Sure. The next one is 2F.

THE COURT: Okay.

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MS. BASHIMAM: Those are Social Security Administration records

that are not the Medicare records.

MR. MARCUS: I wanted a moment to look at those too.

MS. BASHIMAM: Oh, both of them? I'm sorry, Mr. Marcus.

THE COURT: That's okay. So we'll pass on 2E and F?

MS. BASHIMAM: Yes, ma'am. So 2J, and that's Dr. Musil's medical

records.

MR. MARCUS: No objection.

THE COURT: 2J, without objection, will be received as 91.

(Defendant's No. 91, Dr. Musil's Medical Records, was received in

Evidence.)

MS. BASHIMAM: The next one will be 2P, as in "Paul," and that's the

Department of Children and Family call transcript.

MR. MARCUS: Judge, we object to this. This is a -- just a hearsay

transcript of --of a -- it comes out as an anonymous person calling in an

abuse hotline.

THE COURT: Like an abuse report?

MR. MARCUS: It's an abuse report about -- the defense knows who this

is and can call this witness. It's a person who's given a statement saying

they've called. So this is an out-of-court statement that's just been

transcribed.

THE COURT: Okay. Even if you call the witness, you can't ask them

about an abuse report. It's actually a misdemeanor if you were to do that

under Chapter 39. So I agree that this is not admissible by itself or

through the witness. So 2P, I'm sustaining the State's objection.

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MS. BASHIMAM: Judge, the next one is 2Q. And this is the

Department of Children and Family Investigative Summary. It is their

report done on an incident regarding Mr. Cruz.

THE COURT: Does it have a reportee?

MS. BASHIMAM: Say it one more time?

THE COURT: Does it have the person who reported -- first of all, State,

is there any objection?

MR. MARCUS: I don't know of any confidential -- confidentiality. It

just says "confidential," but it's no objection by us.

THE COURT: Okay. Without objection, 2Q will be received as 92.

(Defendant's No. 92, Department of Children and Family Investigative

Summary, was received in Evidence.)

MS. BASHIMAM: 2B, as in --

THE COURT: Be careful because I know that not everybody in here

practices in dependency or has familiarity with in dependency, but please

be very careful about asking people about abuse reports or anything to

that effect. That has to be approved in advance by the judge who was

presiding over the case. There is a whole bunch of rules, so please...

Mr. Secor, are you going to be questioning the witness.

MR. SECOR: No, ma'am, but I understand what you're saying.

THE COURT: Oh. Why are you standing there?

MS. BASHIMAM: To help me.

THE COURT: Oh, okay. Who's questioning this witness? Hello?

MS. CURTIS: Which witness?

THE COURT: Your next witness.

MS. CURTIS: These don't have anything to do with that.

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MS. BASHIMAM: Yeah, we're just entering them.

MS. CURTIS: These are just records. We're just doing it now.

THE COURT: So is it a secret who is going to be questioning your

next witness because I'm going to find out in like three minutes?

MS. MCNEILL: No.

THE COURT: Who is doing it?

MS. MCNEILL: The records don't relate. But if we call the witness,

it will be me.

I'm assuming you're talking about --

THE COURT: Who is your next witness and when are they being

called and which attorney is going to question them? Let me be

clear if I wasn't before. Because if these don't have anything to do

with your next witness, then why are we having a jury wait outside

right now?

MS. MCNEILL: Just because we were trying to move everything in

because it --in terms of timing, we'd do it now . . .

THE COURT: In terms of timing, it would be much better to do it

during the lunch break when the jury needs longer than you-all. So

we'll go ahead and pass on this. Let's bring the jury in, please.

MS. MCNEILL: Your Honor?

THE COURT: Yes.

MS. MCNEILL: At this time the defense rests.

MS. CURTIS: Other than putting in our records.

THE COURT: We're not playing chess. I mean, will you please take the

jury back in? All right. Go ahead and put in your records.

MS. BASHIMAM: 2V, Nikolas Cruz Henderson Episode 1 records.

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THE COURT: Let me just stop. State, are you going to have anything

ready for today?

MR. SATZ: No.

MR. MARCUS: The defense last told us there was 80 witnesses.

MR. SATZ: We're waiting for 40 more witnesses.

THE COURT: I just want 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're not going to have a witness ready. We

have another day wasted. I just -- I --honestly, I have never experienced

a level of unprofessionalism in my career. It's unbelievable.

MS. MCNEILL: So, Judge, you asked -- if we had any pretrial matters,

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.

THE COURT: Okay. You can do that later, you can make your record

later, but you have been insulting me the entire trial, so -- blatantly.

Taking your headphones off. Arguing with me. Storming out. Coming

late intentionally if you don't like my rulings. So, quite frankly, this has

been long overdue; so please be seated. You can receive the evidence. I

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 will receive the evidence, and then you can put whatever you want on the

record at the end. Go ahead.

MS. BASHIMAM: 2V, which is Nikolas Cruz Henderson records

Episode 1.

(Defendant’s Exhibit to Motion to Disqualify, pages 5 – 13)

(emphasis added)

7. Clearly, the defense was less than candid with the Court. Additionally, the State

would point out that jury selection commenced in April of 2022 and it is only now in

this Motion to Disqualify that the defense has alleged that this Court has “blatant

hostility and bias against the defense.” To the contrary, the Court has shown respect

and restraint in presiding over this high-profile case. Furthermore, none of the

comments directed at defense counsel were made in the presence of the jury. None of

the comments were directed at the Defendant himself. This Court did not threaten

Ms. McNeill and the record will speak for itself. Allegations that this Court conceded

“long-standing animosity” is patently false and is not supported by the record

attached to the Motion to Disqualify. A judge’s remarks that she is not impressed

with a lawyer’s or her client’s behaviors are not, without more, grounds for recusal.

Nassetta, supra at 920. None of the comments alleged constitute legally sufficient

grounds to warrant disqualification of the Court. This Court’s comments, taken in

context, do not warrant disqualification.

8. To reiterate, the law is clear that the Defendant’s Motion is legally insufficient on its

face and must be denied, without comment. Fetzner v. State, 219 So.3d 834, 837-38

(Fla. 4th DCA 2017) (affirming the denial of defendant’s motion for disqualification

where the trial judge’s alleged conduct, which included raising her voice at defense

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 counsel, scolding defense counsel, pointing a finger at defense counsel in clear view

of the jury, and threatening one of the defense attorneys at a sidebar conference that

the attorney would be required to remain seated if she continued to speak on the

record, would not cause a reasonably prudent person in the defendant’s position to

fear that he could not get a fair and impartial trial); Ellis v. Henning, 678 So.2d 825 at

827 (Fla. 4th DCA 1996) (affirming the denial of a motion for disqualification that

alleged that the trial judge treated plaintiff’s counsel with “disdain and obvious

animosity” and addressed counsel in a “hostile angry manner and in a tone,

expression, and body language that evinced anger, hostility, and personal contempt”).

WHEREFORE, the State respectfully requests that this Court DENY the Defendant’s

Motion to Disqualify as legally insufficient pursuant to Florida Rule of Judicial Administration

2.330.

I HEREBY CERTIFY that a true copy hereof has been furnished electronically on this

17th day of September, A.D 2022, to Attorneys for Defendant:

Public Defender’s Office: APD Melisa McNeill, Esq., APD David Wheeler, Esq.,
APD Tamara Curtis, Esq., and APD Nawal Bashimam, Esq.
Email: discovery@browarddefender.org; msly@browarddefender.org

Respectfully submitted,

/s/ Carolyn V. McCann

Carolyn V. McCann
Assistant State Attorney
Florida Bar #380393
Ph: 954-831-5893
Email: courtdocs@sao17.state.fl.us

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