McNeill’s decision to delay her opening statement appeared part of a broader strategy to not deny or lessen anything prosecutors told jurors about Cruz’s massacre — he pleaded guilty in October to 17 counts of first-degree murder. This trial is only to decide his sentence; the seven-man, five woman jury will consider whether the prosecution’s aggravating circumstances “outweigh” the defense’s mitigating factors.
The defense is “going to say, ‘Look, you saw what happened — we are not going to argue that. It was horrible, that was awful, that was horrific, whatever adjectives you want to use,” said David S. Weinstein, a Miami defense attorney and former prosecutor. But then the defense will add: “He never had a chance and, because of that, his poor victims never had a chance.’”
This is the deadliest U.S. mass shooting to ever reach trial. Nine other gunmen who killed at least 17 people died during or immediately after their shootings, either by suicide or police gunfire. The suspect in the 2019 slaying of 23 people at a Walmart in El Paso, Texas, is awaiting trial.
During the prosecution’s case, McNeill’s team never cross-examined any teacher or student who witnessed the slayings and only had brief, mild exchanges with a few other witnesses.
They asked one teacher from a classroom where no one was shot about the lack of a security monitor in the three-story building where the slayings happened. When the gun store owner who sold Cruz the AR-15-style semiautomatic rifle used in the killings testified, they asked what Florida’s minimum age was in 2017 to buy a rifle — 18 — and today — 21.
Neither they nor the prosecutors then asked the store owner why the law was changed: Cruz was 19 when the shooting happened and the Republican-led Legislature raised the age limit as part of a larger package of gun laws enacted in response to the shootings.
Cruz’s youth will be part of his defense and while Circuit Judge Elizabeth Scherer has barred the defense from presenting testimony that directly casts blame on third parties like school administrators for not preventing the shooting, McNeill and her team will likely try to indirectly make such points.
To get Cruz a life sentence, the defense will only have to persuade one of the 12 jurors, but they will have to do it on all 17 counts, one for each victim. It is possible, for example, a reluctant juror might be pushed to vote for death on victims who surveillance video showed Cruz shot multiple times as they lay wounded and helpless.
The defense will be trying to overcome the horrendous evidence that was laid out by the prosecution, capped by the jurors’ Aug. 4 visit to the fenced-off building that Cruz stalked for seven minutes, firing about 150 shots down halls and into classrooms. The jurors saw dried blood on floors and walls, bullet holes in doors and windows and remnants of Valentine’s Day balloons, flowers and cards.
Prosecutors also presented graphic surveillance videos of the massacre; gruesome crime scene and autopsy photos from its aftermath; emotional testimony from teachers and students who witnessed others die; and four days of tearful and angry statements from parents, spouses and other family members about the victims and how their loved one’s death affected their lives. Jurors also watched video of Cruz calmly ordering a cherry and blue raspberry Icee minutes after the shooting and, nine months later, attacking a jail guard.
It is unknown how long the defense presentation will take, but they said in court recently that it will last past Labor Day in two weeks. The prosecution will then get to present a rebuttal case before it goes to the jury.
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