Filing ##174532326

Filing E-Filed 06/02/2023

174532326 E-Filed 06/02/2023 07:13:39
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PM

IN THE SUPREME
IN THE SUPREME COURT
COURT
OF
OF FLORIDA
FLORIDA

INQUIRY CONCERNING
INQUIRY A JUDGE
CONCERNING SC23
A JUDGE, SC23-_
THE
THE HONORABLE
HONORABLE ELIZABETH
ELIZABETH A.
A. SCHERER
SCHERER
JQC No.
JQC No.2022-785
2022-785
/
-/

FINDINGS AND RECOMMENDATION

FINDINGS AND RECOMMENDATION OF
OF DISCIPLINE
DISCIPLINE

The Investigative
The Investigative Panel
Panel of
of the
the Florida
Florida Judicial
Judicial Qualifications
Qualifications Commission
Commission ["the
(“the

Commission”) served
Commission") served aa Notice
Notice of
of Investigation
Investigation dated
dated April
April 7,7, 2023,
2023, on
on Circuit
Circuit Judge
Judge

Elizabeth A.A. Scherer

Elizabeth of the
Scherer of the Seventeenth
Seventeenth Judicial
Judicial Circuit,
Circuit, pursuant to FJQC
pursuant to FJQC Rule
Rule 6(b) of
6(b) of

the Florida
the Florida Judicial
Judicial Qualification
Qualification Commission
Commission Rules. The Investigative
Rules. The Investigative Panel
Panel conducted
conducted

a hearing
a hearing pursuant
pursuant to FJQC Rule
to FJQC Rule 6(b) on April
6[b) on April 27,
27, 2023,
2023, atat which
which Judge
Judge Scherer
Scherer

appeared with
appeared with counsel
counsel and
and provided
provided sworn
sworn testimony.
testimony. Following
Following that
that hearing,
hearing, the
the

Investigative Panel
Investigative Panel found
found probable cause that
probable cause that Judge
Judge Scherer
Scherer violated
violated Canons
Canons 1,
1, 2A,
2A,

3B(2), 3B(3),
3BC2), 3B(4), 3B[5),
3B[3), 3B[4), 3B(5), and
and 3BC9)
3B(9) of the Code
of the Code of Judicial Conduct.
of Judicial Conduct

Factual Findings
Factual Findings

The Commission
The Commission investigated
investigated allegations
allegations that Judge Scherer
that Judge Scherer engaged
engaged in
in

inappropriate behavior
inappropriate behavior while presiding over
while presiding over the
the penalty-phase
penalty-phase and
and sentencing
sentencing

proceedings in
proceedings in State
State of
of Florida
Florida v.v. Nikolas
Nikolas ].j. Cruz
Cruz [Broward
(Broward County
County Case
Case Number
Number

18001958CF10A). ItIt was

18001958CF10A). was alleged
alleged that
that Judge
Judge Scherer
Scherer was
was intemperate
intemperate with
with defense
defense

counsel and
counsel and gave
gave the
the appearance of partiality
appearance of partiality to
to the
the prosecution. Since the
prosecution. Since the proceedings
proceedings

were highly
were highly publicized,
publicized, the
the Commission's
Commission’s investigation
investigation centered
centered on
on reviewing
reviewing video
video

footage from
footage from the
the courtroom,
courtroom, related
related court
court transcripts,
transcripts, and
and the
the sworn
sworn testimony
testimony of
of
Judge
Judge Scherer. The Commission
Scherer. The Commission substantiated
substantiated some
some allegations,
allegations, including
including that
that Judge
Judge

Scherer
Scherer unduly
unduly chastised
chastised defense
defense counsel,
counsel, wrongly
wrongly accused
accused defense
defense counsel of
counsel of

threatening
threatening her children after
her children after defense
defense counsel
counsel stated
stated "Judge,
“Judge, II can
can assure
assure you
you that
that if
if

they
they were talking about
were talking about your children, you
your children, would certainly
you would certainly notice,"
notice,” failed
failed to
to curtail
curtail

vitriolic
vitriolic statements
statements directed
directedtoto defense counsel, and
defense counsel, embraced members
and embraced members of
of the
the

prosecution after sentencing.

prosecution after sentencing. Judge
Judge Scherer
Scherer acknowledged also embracing
acknowledged also embracing victims
victims and
and

family
family members
members of the victims
of the victims in
in the courtroom. She
the courtroom. She contends
contends that
that she
she offered
offered to
to

embrace defense
embrace defense counsel.
counsel. On
On April
April 13,
13, 2023,
2023, this
this Court,
Court, inin Tundidor
Tundidor v.v. State,
State, 2023
2023 WL
WL

2920534 (Fla. 2023),

2920534 (Fla. 2023), determined
determined that
that Judge
Judge Scherer
Scherer should
should be
be disqualified
disqualified from
from

postconviction proceedings
postconviction proceedings in
in another
another death
death penalty
penalty case
case citing,
citing, in
in part,
part, to
to this
this same
same

behavior during
behavior during and
and immediately
immediately after
after the
the Cruz
Cruz matter.
matter

The Commission
The Commission is
is mindful
mindful that
that the
the Cruz
Cruz proceedings
proceedings were
were emotional
emotional and
and

highly contentious.
highly The prosecution
contentious. The prosecution sought
sought to
to put
put Defendant
Defendant Cruz
Cruz to
to death
death for
for his
his

crimes which
crimes which took the lives
tookthe lives of
of 17
17 people
people [only
(only three
three of
of whom
whom were
were over
over the
the age
age of
of 18).
18)

The worldwide
The worldwide publicity
publicity surrounding
surrounding the case created
the case created stress
stress and
and tension
tension for
for all
all

participants. However,
participants. However, regardless
regardless ofof the
the gravity
gravity of
of the
the accusations
accusations or
or level
level ofof attention
attention

given aa matter,
given matter, the
the Commission expects that
Commission expects that a
a judge
judge will
will ensure due process,
ensure due process, order
order and
and

decorum, and
decorum, and act
act always
always with
with dignity
dignity and
and respect
respect to
to promote
promote the
the integrity
integrity and
and

impartiality of
impartiality of the
the judiciary. In limited
judiciary. In limited instances
instances during
during this
this unique
unique and
and lengthy
lengthy case,
case,

Judge Scherer
Judge Scherer allowed
allowed her
her emotions
emotions to overcome her
to overcome her judgment.
judgment.

In her
In her testimony before the
testimony before the Commission,
Commission, Judge
Judge Scherer
Scherer acknowledged that her
acknowledged that her

conduct during
conduct during and
and immediately
immediately after
after the
the Cruz
Cruz trial
trial at
at times fell short
times fell short of
of the
the high
high
standards of
standards conduct expected
of conduct expected of
of Florida
Florida judges,
judges, and
and she
she admitted
admitted that
that her
her treatment
treatment

of members
of members of
of the
the defense
defense team
team was
was at
at times
times not
not patient,
patient, dignified,
dignified, or
or courteous.
courteous

Prior to
Prior this matter,
to this matter, Judge
Judge Scherer
Schererhad
had an
an unblemished
unblemishedrecord. She was
record. She was

appointed to
appointed to the
the circuit
circuit bench
bench in
in 2012
2012 and
and has
has had
had no
no prior
prior discipline
discipline imposed
imposed by
by the
the

Supreme Court
Supreme Court or
or The
The Florida
Florida Bar.
Bar. State
State ofof Florida
Florida v.v. NikolasJ.
Nikolas J. Cruz
Cruz was
was Judge
Judge Scherer's
Scherer’s

first death
first death penalty
penalty case,
case, and
and itit remained
remained pending for nearly
pending for nearly five
five years.
years. Judge
Judge Scherer
Scherer

and her
and her counsel
counsel cooperated
cooperated and
and were
were candid
candid during
during the
the Commission's
Commission’s investigative
investigative

process. Judge
process. Judge Scherer
Scherer recognized
recognized that
that at
at some
some points
points during
during the
the Cruz
Cruz trial,
trial, her
her

conduct created
conduct created the
the perception of aa bias
perception of bias against
against one party. The
one party. The appearance
appearance of
of bias
bias

tarnishes public
tarnishes public confidence
confidence in
in the
the fairness
fairness and
and impartiality
impartiality of
of the
the judiciary.
judiciary

Judge Scherer’s
Judge recent resignation
Scherer's recent resignation was
was not
not aa condition
condition ofof this
this agreement.
agreement.

Recommendation as
Recommendation as to
to Discipline
Discipline

The Investigative
The Investigative Panel
Panel of
of the Commission has
the Commission has entered
entered into
into aa Stipulation
Stipulation with
with

Judge Scherer
Judge Scherer pursuant
pursuant to Rule 12
to Rule 12 ofof the
the Florida
Florida Judicial
Judicial Qualifications
Qualifications Commission
Commission

Rules. In
Rules. In the
the Stipulation,
Stipulation, Judge
Judge Scherer
Scherer admits
admits that
that she
she violated Canons 1,
violated Canons 1, 2A,
2A, 3B(2),
3B[2),

3B(3), 3B[4),
3B[3), 3B(4), 38(5),
3B(5), and
and 3B[9)
3B(9) ofofthe
the Code
Code ofofJudicial
Judicial Conduct.
Conduct. She
She admits
admits that
that her
her

conduct fell
conduct fell below
below what
what isis reasonably
reasonably expected
expected ofofaa trial
trial judge
judge and
and had
had the
the potential
potential to
to

damage the
damage perception of
the perception of the
the judiciary
judiciary and
and our
our system
system of
of justice
justice in
in ways
ways that
that cannot
cannot

be easily
be easily cured.
cured. In
In reaching
reaching the
the Stipulation,
Stipulation, the
the Commission
Commission was
was guided
guided by
by the
the Court's
Court’s

opinion in
opinion in In
In re
re Wood,
Wood, 720
720 So.
So. 2d
2d 506
506 [Fla.
(Fla. 1998).
1998). InIn Wood,
Wood, the
the Court
Court required
required Judge
Judge

Wood to
Wood to appear
appear for
for aa public
public reprimand
reprimand based
based on
on his
his repeated
repeated display
display of
of inappropriate
inappropriate

behavior from
behavior from the
the bench.
bench. The
The Court
Court in
in Wood
Wood noted
noted several
several other
other cases
cases in
in which
which aa
public
public reprimand
reprimand was determined to
was determined to be the appropriate
be the discipline for
appropriate discipline for aa judge’s
judge's rude or
rude or

intemperate
intemperate behavior
behavior in
in open court. See
open court. See In
In re
re Wright,
Wright, 694
694 So.
So, 2d
2d 734,
734, 734-36
734-36 [Fla-
(Fla

1997); In re
1997); In re Perry,
Perry, 641
641 So.
So. 2d
2d 366, 367-69 [Fla.
366, 367-69 (Fla. 1994);
1994); In
In re
re Marko,
Marko, 595
595 So.
So. 2d
2d 46.
46, 46
46

(Fla.
[Fla. 1992); In rere Carr,
1992); In Carr,593
593 So.
So,2d2d1044, 1045 [Fla.
1044,1045 (Fla. 1992);
1992); In
In re
re Trettis,
Trettis, 577
577 So.
So. 2d
2d 1312,
1312

1312-13 (Fla. 1991).

1312-13 (Fla. 1991). The
The Commission
Commission isis also
also aware
aware ofofInIn rere Shea,
Shea, 110
110 So.
So. 3d.
3d. 414
414 [Fla.
(Fla

2013). In Shea,
2013). In Shea, this
this Court
Court approved
approved aa public
public reprimand
reprimand and
and reiterated
reiterated "the
“the disparity
disparity

in power between
in power between aa judge
judge and
and aalitigant requires that
litigant requires that aa judge
judge treat
treat aa litigant
litigant with
with

courtesy, patience,
courtesy, patience, and
and understanding."
understanding.”

This Court
This Court reviews
reviews the
the findings
findings of
of the Commission to
the Commission determine "whether
to determine “whether the
the

alleged violations
alleged violations are
are supported by clear
supported by clear and
and convincing
convincing evidence,
evidence, and
and reviews
reviews the
the

recommended discipline
recommended disciplinetoto determine
determinewhether
whetherit itshould
shouldbebe approved.” Jn re
approved." In re

Woodward, 919
Woodward, So. 2d
919 So. 2d 389,
389, 390
390 (FIa.
(Fla. 2006).
2006). Where
Where a ajudge
judge stipulates
stipulates toto the
the JQC's
JQC’s

findings of
findings of fact,
fact, no
no additional
additional proof
proof isis necessary
necessary to
to support
support the
the JQC's
JQC’s factual
factual findings."
findings.’

Id.
Id. at
at 390-91
390-91.

Considering the
Considering the facts
facts and
and circumstances, the mitigating
circumstances, the mitigating and
and aggravating
aggravating factors,
factors,

and prior
and prior precedent,
precedent, the
the Commission
Commission finds
finds and
and recommends
recommends that
that the
the interests
interests of
of

justice will
justice will be
be well-served
well-served by
by aa public
public reprimand
reprimand ofof Judge
Judge Elizabeth
Elizabeth A.Scherer.
A. Scherer

Dated this
Dated this 2d
24 day
day of
of June,
June, 2023
2023.

INVESTIGATIVE PANEL
INVESTIGATIVE PANEL OF
OF THE
THE FLORIDA
FLORIDA
JUDICIAL QUALIFICATIONS
JUDICIAL COMMISSION
QUALIFICATIONS COMMISSION

^r./iu^m^
By ^ y%^^
7:
Honorable Michelle
Honorable Michelle Morle^
ree |
Chair
Chair
P.O.
P.O.Box
Box 14106
14106
Tallahassee,
Tallahassee, FL
FL 32317
32317