IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT, IN AND

FOR BROWARD COUNTY, FLORIDA

State of Florida, Case No. 18-001958CF10A

Plaintiff,
Judge: Scherer
v.

NIKOLAS CRUZ,
Defendant.
___________________/

MOTION FOR DISQUALIFICATION OF JUDGE

Pursuant to Florida Rule of Judicial Administration 2.330, the Defendant, JNIKOLAS

CRUZ, by and through the undersigned attorney, requests this Court to enter an order

disqualifying itself from all further proceedings in the above-styled cause, and as grounds

therefore states the following:

FACTS

1. The Defendant has pled guilty as charged to all counts in the Indictment, specifically,

17 counts of First Degree Murder and 17 counts of Attempted First Degree Murder.

2. The State is seeking the Death Penalty.

3. This Motion stems from comments made by the Court on June 6, 2022, during jury

selection. All comments were made on the record and in the presence of Mr. Cruz.

4. On Thursday, June 2, 2022, at 1:19 pm the defense emailed the Court to notify that a

member of the defense team had tested positive for COVID and therefore the following Monday

June 6, 2022, the team would only be able to proceed with questioning jurors as to hardship, but

not as to death qualification. (Exhibit A, attached)

5. On Monday June 6, 2022, defense counsel reiterated the need for a 24 hour

postponement only as to the death qualification of jurors, but not as to hardship questions. The
Court stated that it was not inclined to agree to the postponement; the State however,

acknowledged that it had previously agreed to postponement when other team members had

contracted COVID. (Exhibit B transcript)

6. The Court then denied the postponement, incorrectly stating attorney Secor’s

length of time with the team and minimizing his importance to jury selection. (Exhibit)

7. Defense counsel McNeil corrected the Court as to attorney Secor’s length of time

with the team and his role necessary for jury selection in that he was brought to the team

particularly for his specific death penalty qualification expertise and that he the only other death

qualified attorney on the team other than attorney McNeil. Ms. McNeil told the Court that the

team could not proceed on death qualification without his presence and that Mr. Cruz was not

agreeing to proceed without Mr. Secor.

8. The Court then accused the defense team and Ms. McNeil specifically of

intentionally rendering itself ineffective; the court inferred that such conduct would be a

violation of the rules of professional ethics.

9. The Court derided counsel making at least 9 references to professional responsibility

and 2 references to ethics while asserting that the defense’s need for a 24 hour delay in any death

qualification of jurors was disingenuous and unethical. The Court additionally accused defense

counsel of threatening the Court.

10. The State reiterated that it did not object to the one day requested postponement.

Attorney McNeil reminded the Court of the complex nature of death penalty litigation, the fact

that a necessary part of the death qualification team was absent due to being in quarantine and

that, contrary to the Court’s and the State’s assertions, defense counsel was trying to avoid

ineffective assistance of counsel – not create it. The Court then accused the defense team of

2
strategically engaging in conduct prejudicial to the administration of justice and of intentionally

creating ineffective representation.

7. Based on the Court’s statements and conduct of the hearing, calling into question the

integrity and motives of defense counsel, the Defendant reasonably believes that he cannot

receive a fair and impartial hearing or trial before this Court. The Court’s comments during the

hearing indicate that it explicitly does not believe the defense teams’ representations even in the

face of a vital member being under CDC guidelines and quarantined.

8. Hearings and trials are always fluid. Timing is always a best estimate, be it for a

motion or length of trial. Sometimes matters take longer than anticipated; sometimes they take

less time than anticipated. Illness of a team member cannot be anticipated, not was the amount

of time being requested unreasonable. Attorney Secor’s quarantine is due to expire tomorrow,

June 7, 2022.

12. An affidavit of the Defendant is attached hereto and incorporated herein.

13. This motion is timely made.

14. Based on the foregoing, the Defendant has a well-founded fear that this Court is

prejudiced against him and that he will not receive a fair trial, future hearings, and/or sentencing

in this cause.

ARGUMENT

The Fourth District Court of Appeal has repeatedly held that “Florida law prohibits a trial

judge from stepping away from the appearance of neutrality.” Evans v. State, 831 So. 2d 808,

811(Fla. 4th DCA 2002); J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998); Chastine v. Broome,

629 So. 2d 293 (Fla. 4th DCA 1993).

3
 In the instant case the trial court stepped away from its neutral role by following the

State’s lead in questioning the integrity and motives of the defense team in requesting a 24 hour

postponement due to illness. Defendant has reasonable fear that the trial court harbors ill will

towards defense counsel and for questioning counsel’s professionalism and integrity.

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 . . . ." Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983); see also Rogers v.

State, 630 So. 2d 513 (Fla. 1993). The Florida Supreme Court reiterated in Livingston:

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 [sic]. No judge
under any circumstances is warranted in sitting in the trial of a cause whose
neutrality is shadowed or even questioned.
....
The judiciary cannot be too circumspect, neither should it be reluctant to
retire from a cause under circumstances that would shake the confidence of the
litigants in a fair and impartial adjudication of the issues raised.

441 So. 2d at 1085-86 (emphasis supplied) (citation omitted); see also Hayslip v. Douglas, 400

So. 2d 553, 555 (Fla. 4th DCA 1981); Code of Jud. Conduct Canon 3-C

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

for Disqualification pursuant to Florida Rule of Judicial Administration 2.330, previously Florida

1
Florida Rule of Judicial Administration 2.330(f) 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.

4
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 an affidavit signed by the Defendant alleging

specifically the facts and reasons relied on to show the grounds for 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) 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 (Fla. 1993). The Defendant "need

only show a well grounded fear" that this Court cannot provide a fair hearing in this matter. Id.

(citation omitted) (Emphasis added).

In Siegel v. State, 861 So. 2d 90 (Fla. 4th DCA 2003), the district court held that prejudice

against a party’s attorney can result in disqualification.

Because the facts alleged herein “would place a reasonably prudent person in fear of not

receiving a fair and impartial” hearing, this Court should grant the motion. See id. The court's

perception of whether it can be fair and impartial is not at issue. State ex rel. Brown v. Dewell,

131 Fla. 566, 573, 179 So. 695, 697-98 (Fla. 1938).

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

5
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))

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.

CONCLUSION

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. Respectfully Submitted,

GORDON WEEKES
Public Defender
17th Judicial Circuit

/s/ Melisa McNeill /s/ Lisa Lawlor

Melisa McNeill Lisa Lawlor
Assistant Public Defender Assistant Public Defender
Fla. Bar No. 475408 Fla. Bar No. 0015288
(954) 831-6750 (954) 831-6750
discovery@browarddefender.org discovery@browarddefender.org

6
 IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT, IN AND
FOR BROWARD COUNTY, FLORIDA

State of Florida, Case No. 18-1958CF10A

Plaintiff,
Judge: SCHERER
v.

NIKOLAS CRUZ,
Defendant.
__________________/

AFFIDAVIT OF DEFENDANT

The undersigned affiant, NIKOLAS CRUZ, hereby attest under penalty of perjury states the

following:

1. I am a defendant in the case of State of Florida v NIKOLAS CRUZ, Case 18-1958CF10A.

2. I am represented by the Office of the Public Defender.

4. I have been advised that, according to the Criminal Punishment Code, I am facing a possible

death sentence.

5. On June 6, 2022, I was present in court for continuation of jury selection.

6. I was present when Judge Scherer questioned my attorney’s integrity and professionalism for

not wanting to proceed without Mr. Secor. This was done in my presence and has created in me a

reasonable fear that I will not receive a fair and impartial trial, sentencing, or future motion hearings.

7. I have read the Motion for Disqualification of Judge and certify that it is accurate.

NIKOLAS CRUZ

State of Florida )

County of Broward )

I NIKOLAS CRUZ, under penalty of perjury, pursuant to Florida Statute 92.525, attest that I am
the Defendant in the above styled cause, and that I have read the foregoing, and that all of the matters are
true and correct.

____________________________
NIKOLAS CRUZ

7
8
Exhibit A
From: Melisa McNeil! <mmcneill@browarddefender.org>
Sent: Thursday, June 2, 2022 1:23 PM
To: Nichole Lunsford <n1unsford@17th.flcourts.org>
Cc: MSD -Jeff Marcus <JMarcus@sao17.state.fl.us>; Caseysecor@gmail.com; SAP - Carolyn Mccann
<CMcCann@sao17.state.fl.us>; Tamara Curtis <tcurtis@browarddefender.org>; Melissa Sly
<msly@browarddefender.org>; Nawal Bashimam <nbashimam@browarddefender.org>
Subject: Correction: Week of June 6th, 2022

Good afternoon:

Please be advised that one of the defense team tested positive for COVI D today. The Office of the Public
Defender follow the CDC guidelines. In addition to those guidelines our offices requires a negative
COVID test.

Therefore on June 06, 2022, the defense would only be able to proceed with asking the individual jurors
hardship questions.

We will keep the Court posted about the remainder of the week and the status of the member that
tested positive and their availability.

Thank you,

MM
Exhibit B
Fro m: MSD - Jeff Marcus <JMarcus@sao17.state.fl.us>
Sent: Friday, June 3, 2022 4:03 PM
To: Melisa McNeill <mmcneill@browarddefender.org>; Nichole Lunsford <nlunsford@17th.flcourts.org>
Cc: Caseysecor@gmail.com; SAP - Carolyn Mccann <CMcCann@sao17.state.fl.us>; Tamara Curtis
<tcurtis@browarddefender.org>; Melissa Sly <msly@browarddefender.org>; Nawal Bashimam
<nbashimam@browarddefender.org>; ADM1 -Aaron Savitski <ASavitski@sao17.state.fl.us>; APU -
Nicole Chiappone <nchiappone@sao17.state.fl.us>; SAP - Carolyn Mccann
<CMcCann@sao17.state.fl.us>; Mike Satz <mjs997@gmail.com>
Subject: RE: Correction: Week of June 6th, 2022

Is there any up date to the defense position for Monday?

Jeff Marcus
ASA