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
_____________________________/

MOTION TO DISQUALIFY (D-333)

Our legal system is based on the principle that an independent, fair and competent
judiciary will interpret and apply the laws that govern us. The role of the judiciary is
central to American concepts of justice and the rule of law. Intrinsic to all sections of
this Code are the precepts that judges, individually and collectively, must respect and
honor the judicial office as a public trust and strive to enhance and maintain confidence
in our legal system. The judge is an arbiter of facts and law for the resolution of
disputes and a highly visible symbol of government under the rule of law.

Preamble to the Florida Code of Judicial Conduct.

Nikolas Cruz, by and through undersigned counsel, files this Motion to Disqualify pursuant

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

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

following:

1. Mr. Cruz pled guilty to 17 counts of first-degree murder and 17 counts of attempted first-

degree murder. The state is seeking imposition of 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 publicly expressed.

3. After calling several 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 prenatal alcohol exposure.

4. After the Court recessed for the evening on September 13, 2022, it instructed the parties to

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

attention prior to having the jury come in. On September 14, 2022, the parties arrived 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 conferring with the State

regarding evidence the defense was seeking to enter by way of a certification of a records

custodian.

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

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

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

of that witness.

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

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

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.

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 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 will
receive the evidence, and then you can put whatever you want on the record
at the end.

7. After bringing in the jury to allow the defense to rest, the Court discussed scheduling issues

with the jury. The Court stated:

So we did not anticipate that the defense would be resting today; 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-all in here.

8. Although advising the jury that it was at fault for any scheduling problems, the Court

clearly placed blame for the jury’s inconvenience on the defense. The Court undermined

the defense by insinuating to the jury that the defense did not provide the 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

patently false. The defense had absolutely no legal obligation to 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

anticipate” and then “therefore, the State 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

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 prejudiced against his lawyers and him and that he will not receive a fair and impartial trial

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 rulings as any defendant would

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

towards defense counsel are long-standing and pervasive, Mr. Cruz has a reasonable belief

that the rulings of the Court have been influenced by its adverse feelings which do not go

to the legal issue before the Court. Mr. Cruz also has a reasonable belief that the Court’s

ruling going forward will be influenced by the Court’s adverse and pervasive feelings

towards defense counsel and he will not receive a fair and impartial trial.

11. In essence, what the Court has been feeling throughout this trial, and has now stated on

the record, has corrupted this trial and should compel the granting of both a mistrial and a

recusal so an unbiased jurist can 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

warrant disqualification, the statements made directly to lead counsel that lead counsel “has

been insulting her the entire trial,” have informed Mr. Cruz and defense counsel’s

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

animosity toward defense counsel throughout the proceedings.

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

because of the Court’s animosity toward his lawyers.

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

disqualification, “we see no reason why they cannot inform a [defendant’s] understanding

of the comments from which the motion for disqualification was timely filed.”). 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 of trial to provide opposing counsel a list of the

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

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

that it would be ineffective representation to 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

permitted to use Zoom during its rebuttal case as well. The Court then stated: “I need

you to say exactly what you’re agreeing to in no uncertain terms. And make sure your

client is in agreement because I, quite frankly, understand the State’s concern at this

point,” dismissing the defense’s reason for revoking the 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

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 before. After defense counsel indicated it would only agree to advise the State of Zoom

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

agreeing to it, then they’re not agreeing to Zoom. All your witnesses will have to be

here in person. Make absolutely sure that that’s what you want to do.” The defense

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

The Court again indicated that “Well, I just said to you – here’s the deal. It’s either all

or nothing.”

b. September 1, 2022: After the lunch recess, the Court made broad statements chastising

counsel, but looked directly at the defense table during its comments and pointed its

finger towards 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 talking and stop what they're doing. 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
multiple times whether one particular side is ready and no one is hearing
me because you-all are talking to 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 occasionally talking 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? If there are technical difficulties, everyone needs to be
quiet. Because what's happening is somebody’s trying to help over here,
somebody’s trying to 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
professional and respectable manner. 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 quiet and to be seated, and when there's
an objection made, everybody needs to stop talking. I don't want any rude -

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 - any further rude or disrespect behavior. It’s gotten quite out of control.
Please do not move about this courtroom without asking permission. 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.

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

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

directing these remarks specifically toward the defense, as evidence by continually

pointing at the defense and referring to “your client.”

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

c. On September 1, 2022, after the parties returned 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

Christopher Whitelock, 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 impression that 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

penalty based on prosecutorial misconduct. That request was denied, however the Court

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

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

counsel asked for 30 minutes because it takes 12 minutes to get to counsel’s office from

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

7
 the parties were dismissed, the Court brought the jury back into the courtroom, without

lead counsel present, and over the defense team’s objection to proceeding without the

only first-chair death penalty qualified lawyer on the team. This was clearly done in an

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

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

17 minutes after being dismissed.

d. Upon further reflection in light of this Court’s admission of its long-standing animosity

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

instances of blatant hostility and bias against the defense, which include:

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

participate in an argument while allowing several members of the prosecution team

do so.

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

but in the courtroom, while ignoring the prosecution team’s identical conduct.

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

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

15. Each of these statements individually, and all of these statements and actions taken together

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

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

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 ARGUMENT

Canon 3B(4) of the Judicial Code of Conduct states:

A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,

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

Canon 3B(5) begins by stating that “A judge shall perform judicial duties without bias or

prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest

bias or prejudice.”

Finally, Canon 3E states:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where:

(a) the judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of disputed evidentiary facts concerning the
proceeding;

The commentary to Cannon 3B(4) states that “The duty to hear all proceedings fairly and with

patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges

can be efficient and business-like while being patient and deliberate.” Likewise, the commentary

to Canon 3B(5) states that:

A judge must perform judicial duties impartially and fairly. A judge who manifests
bias on any basis in a proceeding impairs the fairness of the proceeding and brings
the judiciary into disrepute. Facial expression and body language, in addition to
oral communication, can give to parties or lawyers in the proceeding, jurors, the
media and others an appearance of judicial bias. A judge must be alert to avoid
behavior that may be perceived as prejudicial.

A judge’s gratuitous remarks about counsel or her character undermine respect for the

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

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Edwards-Freeman v. State, 138 So. 3d 507, 509 (Fla. 4th DCA 2014). A trial court presented with

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

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

is to ensure public confidence in the integrity of the judicial system. In Livingston v. State, 441 So.

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

Prejudice of a judge is a delicate question to raise but when raised as a bar to the
trial of a cause, if predicated on grounds with a modicum of reason, the judge
against whom 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 of no concern what judge presides
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 judiciary cannot 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 impartial adjudication of the issues raised.

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

(disqualification rule established to ensure public confidence in the integrity of the judicial

system). The motion in Livingston was based on a history of animosity between capital defense

counsel and the Court. Finding Livingston’s motion legally sufficient insofar as he presented

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

Given the record in this case identifying the disputes which have arisen between
the judge and the lawyer over a substantial period of time, we must conclude that
the appellant could 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 explicitly provides the following:

The judge against whom an initial motion to disqualify under subdivision (d) (1) is directed shall
determine only the legal sufficiency of the motion and shall not pass on the truth of the facts
alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting
disqualification and proceed no further in the action. If any motion is legally insufficient, an order
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 especially true in this prosecution for first-degree murder in which appellant’s
life is at stake and in which the circuit judge’s sentencing decision is so important.

441 So. 2d at 1087. This Court’s repeated improper and unjustified attacks on defense counsel

undermine the public’s confidence in the integrity of these proceedings and the judicial system 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 particularly troubling in light of the fact that Mr. Cruz is facing the ultimate

penalty of death.

The proper avenue to seek disqualification of a trial judge in Florida is through a Motion

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

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

signed by the Mr. Cruz alleging specifically the facts relied upon as grounds for his well-founded

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

filed. Michaud-Berger v. Hurley, 607 So. 2d 441 (Fla. 4th DCA 1992). This motion complies in

all respects with the requirements contained in Rule 2.330.

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

Court shall “determine only the legal sufficiency of the motion and shall not pass on the truth of

the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order

granting disqualification and proceed no further in the action.”

This motion is legally sufficient pursuant to Rule 2.330. The inquiry in a motion for

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

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

the motion from the litigant’s perspective questioning the “judge’s impartiality rather than [from]

11
the judge’s [perspective] of his ability to act fairly and impartially.” 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 repeatedly demonstrated that defense counsel’s necessary and

proper actions in her zealous representation of her client – a client who is facing the death penalty

– are somehow inappropriate and unprofessional have caused the defendant to reasonably believe

that the court is not fair and impartial in this matter and is biased against the 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 consider a judicial override for a life sentence. See § 921.141(3)(a)2, Fla. Stat.

(If the jury has recommended a sentence of: … Death, the court, after considering each aggravating

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

imprisonment without the possibility of parole or a sentence of death. The court may consider only

an aggravating factor 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

granted prohibition where the 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 ignorant of, his professional obligations; (2) the judge indicated that she had to

routinely remind Jimenez’s counsel of his good faith obligations; (3) the judge stated that she felt

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

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

understanding of Spanish to be “incredulous.” The Court noted that “[t]here is nothing in the

record indicating that Jimenez’s counsel engaged in any behavior designed to provoke the judge,

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

12
instant case, the Court’s remarks, prompted only by defense counsel unexpectedly resting its case,

“went beyond expressions of mere frustration, admonishment, or annoyance with counsel’s

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

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

DCA 2001) (a threat to humiliate defense counsel in front of 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 prejudice against an attorney may be grounds for disqualification when such

prejudice is of such a degree that it adversely [a]ffects the litigant.” Franco 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 actually biased against him or her, but the motion and affidavit are legally

sufficient if they demonstrate that party's ‘well grounded fear’ of not receiving a fair trial.” Rucks

v. State, 692 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 hearing because of the Court’s animosity toward his lawyers.

The court’s actions have called into question its impartiality and resulted in the appearance

of impropriety requiring disqualification. The Court repeatedly admonished the defense for

engaging in actions that are perfectly legal and ethical – e.g. resting its case when it believed it

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

stepped away from its role as a neutral arbiter by forcing the defense to disclose its witnesses in

advance to the state after one of the prosecuting attorneys participated in an improper telephone

conversation with one of the defense witnesses, by indicating it would not exercise its discretion

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

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

client in order to present necessary mitigation. These 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 prior employment as an assistant state attorney is not grounds

for disqualification, its continued and past relationships with members of that office informs the

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

regardless of the situation, is evidence that this Court is not fair and impartial and that the

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

DCA 2010).

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course
requires an absence of actual bias in the trial of cases. But our system of law has
always endeavored to prevent even the probability of unfairness. To this end no
man can be a judge in his own case and no man is permitted to try cases where he
has an interest in the outcome. That interest cannot be defined with precision.
Circumstances and relationships must be considered. This Court has said, however,
that “Every procedure which would offer a possible temptation to 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, 273 U.S. 510
(1927). Such a stringent rule may sometimes bar trial by judges who have no actual
bias and who would do their very best to weigh the scales of justice equally between
contending parties. But to perform its high function in the best way “justice must
satisfy the appearance of justice.” Offut v. U.S., 348 U.S. 11, 14 (1954).

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

where the judicial ermine is everything that it typifies, purity and justice.” Crosby v. State, 97 So.

2d 181, 184 (Fla. 1957) (quoting Davis 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 resting its 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 of his trial will not be fair as well.

A denial of Mr. Cruz’s requests in this matter would violate Mr. Cruz’s rights to due

process guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and

Article I, Section 9 of the Florida Constitution, a fair trial in the appropriate venue, 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 protection or basic rights guaranteed 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

guaranteed by the Eighth and Fourteenth Amendment of the United States Constitution and Article

I, Section 17 of the Florida Constitution.

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

Motion for Disqualification of Judge, so another circuit court judge may be randomly assigned to

preside over 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

Chief Assistant Public Defender Assistant Public Defender

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 CERTIFICATE OF SERVICE
I 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 courtdocs@sao17.state.fl.us, and

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

Fort Lauderdale, Florida, this September 16, 2022.

GORDON WEEKES
Public Defender
17th Judicial Circuit

/s/ Melisa McNeill /s/ Tamara Curtis

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 undersigned affiant, Nikolas Cruz, under penalty of perjury, deposes

and states on September 16, 2022, as follows:

1. I am the defendant in this case and have pled to 1 7 counts of premeditated

first-degree murder and 17 counts of premeditated murder in case number

18-00195 8CF 1 0A.

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

the entire trial.

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

a. On September 14, 2022, after my lawyer, Melisa McNeill told the Court

that we would be resting our case, the Court stated "I just want to say this

is the most uncalled for, unprofessional way to try a case. Y ou-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."

b. The Court's statements cause me to reasonably fear that the Court is

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

impartial trial.

c. The Court also revealed that her feelings toward Ms. McNeill extended

throughout the trial by saying "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."

d. The Court's statement causes me to reasonably believe that it has disliked

my attorneys throughout my trial, and it is biased against me and my

lawyers and I will not receive a fair trial.

e. The Court has repeatedly insulted my lawyers throughout the trial and

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

will not receive a fair trial. The Court made the following statements

about my lawyers further causing me to believe it is prejudiced against

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

• On September 1, 2022, the Court said, "This whole situation here

has become unprofessional," and "I don't want any rude-any

further rude or disrespectful behavior." The Court was pointing at

the defense table and stating "your client" at the time.

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• 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 point to the jury that the delay was

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

Court was attempting to poison the jury against my defense

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

court's statements and action.

• September 2, 2022, the Court stated "I need you to say exactly

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

client is in agreement because I, quite frankly, understand the

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

reason for revoking the witness disclosure agreement which was

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

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

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

prejudice towards me and my attorneys and favoritism towards the

State. I believe the Court was trying to coerce my lawyers into

agreeing to what the State wanted or she would not allow Zoom

testimony despite counsel providing the Court with caselaw and

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 the Florida Administrative Order which gives the Court the

discretion to allow testimony via Zoom even if the State objects.

• The Court's actions cause me to reasonably fear that the Court is

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

and impartial trial.

• September 13, 2022, my lawyer advised me that, at sidebar, the

Court threatened my lawyer that it would reprimand my lawyer in

front of the jury by stating "I'm going to reprimand you in front of

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

that the Court was biased against my 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 lawyers when more

than one lawyer attempts to participate in argument but allowing the

State to do so, reprimanding my lawyers for speaking while in recess but

ignoring the State's same conduct and refusing to allow my lawyers to

address issues when the jury is waiting to come in but allowing the State

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

actions cause me to reasonably fear that the Court is biased against my

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

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g. I have also observed the Court's negative and disparaging non-verbal

actions throughout the trial, including rolling her eyes when my lawyers

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

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

actions cause me to reasonably fear that the Court is biased against my

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

h. Because of the animosity that the Court has and has had towards my

lawyers throughout the entire trial I believe that I will not get a fair trial

and that the Court has made and is making its rulings based on its

negative feelings and obvious distain towards my lawyers, especially Ms.

McNeil!.

1. Also, the fact that Judge Scherer used to work for the State Attorney's

Office and has continued to have relationships with people from that

office, makes me think that she is biased in their favor and against me.

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

J. I am prejudiced by Judge Elizabeth Scherer' s actions and words directed

towards my lawyers. I also feel that the Court has lost its neutrality and

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 a judicial

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

neutrality.

k. I do not believe that the Judge will perform her duties impartially and

diligently.

l. I am seriously concerned about Judge Elizabeth Scherer' s impartiality

and ability to be neutral in a proceeding where 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

prejudiced against me and my lawyers and 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.

Nikolas Cruz
Defendant