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Death Penalty Trial: Sentencing Phase Underway for Nikolas Cruz in 2018 FL Multiple Murders - Page 20
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Thread: Death Penalty Trial: Sentencing Phase Underway for Nikolas Cruz in 2018 FL Multiple Murders

  1. #191
    Senior Member Frequent Poster maybeacomedian's Avatar
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    ‘We Want Him Dead, We Want Him Forgotten’: Parkland Shooter Nikolas Cruz’s Apology Falls Flat With Victims Families

    FORT LAUDERDALE (CBSMiami) — Relatives of the Marjory Stoneman Douglas High School massacre shook their heads or broke down in tears on Wednesday morning as gunman Nikolas Cruz pled guilty to 17 counts of murder and 17 counts of attempted first-degree murder and then apologized to the victims in a short speech.

    “I’m very sorry for what I did. And I have to live with it every day,” adding, “I can’t live with myself sometimes.” He also said he wished it was up to the survivors to determine whether he lived or died.

    Fred Guttenberg, father of slain 14-year-old Jaime Guttenberg, said his apology meant nothing.

    “Irrelevant,” said Guttenberg in the courtroom hallway following the proceedings. “We’re just one step closer to justice.”

    Gena Hoyer, mother of 15-year-old victim Luke Hoyer, was wearing a picture of her son around her neck.

    “We’re glad today has gone this way and we are hoping for accountability with the death penalty,” she said adding his apology was “useless.” She said his attorneys were “trying their best to keep a violent, evil person off death row.”

    Luke was Tom and Gena Hoyer’s third child. She said Cruz “does not deserve life in prison, life in prison is a life. He deserves nothing more than the death penalty.”

    Tom Hoyer also had strong words for gunman who killed his daughter.

    “Just looking for justice here and justice for us, is we want him dead. We want him forgotten. I don’t ever want to hear this kid’s name again.” He added he though the courtroom apology to the families was “self-centered.”

    When they left, the Hoyers were going to visit their son Luke, at the cemetery.

    Tony Montalto, the father of 14-year-old Gina Montalto, called the killer’s apology a “ridiculous statement.” He too wore a picture of his slain child.

    In response to the gunman’s statement, “If I were to get a second chance, I will do everything in my power to try to help others,” Montalto said, “If he wanted to do something for our families, he shouldn’t have killed our loved ones.”

    Montalto said being in the same room as his daughter’s killer was the second most uncomfortable thing he’s ever had to do. “The first most uncomfortable thing was hugging our daughter’s lifeless body,” he recalled.

    Montalto said while he understands the guilty pleas are the first step in the judicial process, he has a very specific idea of what justice means.

    “As a society, we should want people who commit heinous acts, like mass shootings, to be prosecuted to the fullest extent of the law. We need to find a way to prevent people from wanting to copy these things. We need the media to help us in reducing the notierty these shooters get. We need to prevent them from being idols to others. We need to always remember the victims and who they were, the bright and vibrant people. Finally, we need all Americans to come together and help us stop school shootings. If you see something, say something. If you have a suspicion, you need to report it to someone. We need to be proactive and prevent other families from suffering the loss we have of our beautiful 14-year-old Gina Rose.”

    Anthony Borges, a former Stoneman Douglas student who was shot five times and severely wounded, said after the hearing that he accepted Cruz’s apology, but noted that it was not up to him to decide the confessed murderer’s fate.

    “He made a decision to shoot the school,” Borges said. “I am not God to make the decision to kill him or not. That’s not my decision. My decision is to be a better person and to change the world for every kid. I don’t want this to happen to anybody again. It hurts. It hurts. It really hurts. So, I am just going to keep going. That’s it.”

    Cruz faces a minimum of life in prison and maximum of the death penalty. Jury selection for the penalty phase of the trial is scheduled to begin January 4.

    https://www.msn.com/en-us/news/crime...ies/ar-AAPKTlH

  2. #192
    Administrator Helen's Avatar
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    Parkland shooters lawyers declare death penalty unconstitutional, judge denies motion

    As case nears start of penalty phase, defense team asks for certain evidence to be excluded

    By Christina Vazquez and Michelle Solomon
    Local 10 News

    FORT LAUDERDALE, Fla. The judge in the Parkland shooting case denied several defense arguments where attorneys ask to declare the death penalty unconstitutional. Broward County Judge Elizabeth Scherer agreed with a state argument that the court did not have authority to overrule the Supreme Court on the issue.

    On Feb. 14, 2018, Cruz opened fire on students and staff at Marjory Stoneman Douglas High School. In October, Cruz pled guilty to killing 17 people in the shooting. By having Cruz plead guilty, the gunmans defense team is hoping he may avoid the death penalty and instead be sentenced to 17 life sentences in prison.

    Also, as the case nears the start of the penalty phase, Parkland school shooter Nikolas Cruzs defense team asked the judge to exclude evidence related to two search warrants; one related to a Pompano Beach home he once resided in and another to the cell phone used on the day of the shooting.

    Mr. Cruz told us the phone was used to get the Uber that brought him to the school, said Broward Sheriffs Office detective John Curcio.

    On the issue of Cruzs cell phone, the defense argued that Cruz has a reasonable expectation of privacy in his telephone records. They also argue that the affidavit underpinning the warrant does not indicate that the cellphone was used in any criminal activity.

    They say there is no indication that a witness saw Cruz using a cell phone during or after the incident nor if Cruz made any calls or sent any messages using the cellphone during or after the incident.

    They argue the cell phone warrant is unconstitutionally overbroad and fails to establish any nexus between the criminal conduct investigated and the records to be searched.

    Two Broward Sheriffs Offices detectives served as witnesses in the evidentiary hearing as the state worked to counter defense arguments. Namely that the affidavit in support of the warrant contained false statements.

    The state, in its filed response, argued that the affidavit does contain sufficient probable cause to support the execution of a warrant, saying that the phone was an instrumentality of his felony offenses of murder.

    The defense team reiterated in court Monday that it may be calling upwards of eight mental health witnesses. The state has previously told the judge that the defense has said these experts have not yet made a formal diagnosis and that they would like the defense to detail for the prosecution, which mitigating factors they will argue during the penalty phase.

    The next hearing is scheduled in early December.

    A 12-person jury will be selected starting at the beginning of January and Cruz will ultimately be sentenced either to life in prison or death.

    https://www.local10.com/news/local/2...denies-motion/
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    "Men have called me mad; but the question is not yet settled, whether madness is or is not the loftiest intelligence"
    - Edgar Allan Poe

  3. #193
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    Fred Guttenberg Wants Parkland Shooter 'Removed From This Earth the Fastest Way Possible'

    Fred Guttenberg, the father of a Parkland school shooting victim, said he wants to see Nikolas Cruz "removed from this earth the fastest way possible" as the 23-year-old waits for a jury to sentence him early next year.

    Guttenberg said that result could come "through a death penalty conviction or time in a prison with a general population," he told CNN on Monday. "But he serves no useful purpose, and I'd like to be able to move on from ever thinking of him again."

    Last month, Cruz pleaded guilty to killing 17 people during a 2018 shooting spree at his former high school in Parkland, Florida, in what became the deadliest high school shooting in U.S. history.

    His guilty plea to 17 counts of murder and 17 counts of attempted murder means 12 jurors will decide whether he gets the death penalty or life in prison without parole. Jury selection is scheduled to begin January 4.

    Last week, the families of dozens of Parkland shooting victims reached a record $130 million settlement with the U.S. Justice Department over the FBI's failure to stop Cruz, despite receiving tips that he intended to attack Marjory Stoneman Douglas High School.

    Speaking to CNN, Guttenberg recalled that he was choosing his 14-year-old daughter Jaime's casket when he received a call learning that the FBI had made "a tragic mistake" in not acting on a tip that Cruz had bought guns and planned to "slip into a school and start shooting the place up."

    "I literally learned this news while picking out Jamie's casket. I said to the person on the other end of the call, 'You mean to tell me had the FBI done their job my daughter would be alive today?'" he remembered. "That person said, 'I'm afraid so.'"

    Guttenberg added, "We live in a world now where this is going to happen again. We know it. It's foreseeable. We can't allow these mistakes to happen."

    Guttenberg said he hoped that the settlement with the Justice Departmentalong with a multimillion-dollar settlement between the agency and the families of the Charleston, South Carolina, church shooting and a settlement between MGM Resorts International and the victims of the Las Vegas Strip shootingsignals that there is a public obligation to prevent acts of gun violence.

    "I do hope that this settlementcombined with the settlement just about a month ago in South Carolina, also combined with the settlement out of Las Vegas with the big hotel that was over $800 millionsends the message that if you are a business or you are a public agency, if you have a responsibility to customers,
    employees, students, worshippers, anybody, you have a responsibility to keep us free from gun violence," Guttenberg said.

    "We have 400 million weapons on the streets, and we have a potential for gun violence now all of the time," he added. "It is foreseeable, and so now those who we spend our time and dollars with have an obligation to keep us free from it."

    https://www.newsweek.com/fred-gutten...ssible-1654029

  4. #194
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    Judges Denies Parkland School Shooter's Bids To Avoid Death Penalty

    Judge Elizabeth Scherer denied the defense motion for Nikolas Cruz

    NBC 6s Julia Bagg has more on the question over whether Nikolas Cruz should be sentenced to death 1 day after pleading guilty.

    With a month to go before jury selection is set to begin for his death penalty hearing, lawyers for the man behind one of the deadliest school massacre in American history Tuesday argued death should not be an option in his case.

    But, if it remains an option, he tried to argue victim impact statements should not be presented to the jury because they will inject emotion into the jurys deliberations.

    Such statements, which will likely be read in court by survivors of the victims, will appeal to and have a tendency to overwhelm the emotions of jurors, assistant public defense Tamara Curtis argued.

    Judge Elizabeth Scherer denied the defense motion for Nikolas Cruz.

    Curtis also unsuccessfully sought to block death by noting previous state attorney Michael Satz arbitrarily applied his authority to seek death because his office did not have a consistent policy on when to seeks death in 1st-degree murder cases.

    Assistant state attorney Carolyn McCann responded by saying this is a case that calls out for the death penalty and noted Satz successor, Harold Pryor, has also decided to seek the ultimate punishment.

    The defense next sought to have the judge preclude the state from arguing to the jury that the killers targeting of a public school disrupted a public function and, in killing three staff and teachers, targeted appointed officials. Both are criteria the legislature has defined as aggravating factors, which the state can use to argue for death.

    He didnt choose to target a mall with shoppers . (Or) worshippers in a house of worship, McCann said. He chose to target students and staff at Marjory Stoneman Douglas High School he disrupted school and he hindered school.

    Scherer said the state has complied with legal requirements by informing the defense which aggravating factors it will rely on, and denied the defense request to strike those factors from the states future arguments.

    The defense is submitting the motions to exercise and protect the defendants rights to a fair trial. Even though they are being denied at the trial court level, they preserve those arguments for appeal.

    The defense did win one argument made weeks ago, when Scherer Monday ordered certain evidence recovered after the shooting in the home where the killer was living will not be allowed into evidence at this point.

    That included 18 cartridges of the same caliber used in the killings, a tactical helmet and vest, and a packing list revealing a firing pin and ammunition being delivered to the home in the days before the February 14, 2018 massacre.

    Scherer found none of that was relevant to the sentencing because those items were not used in the actual attack. She noted the killer had already pled guilty to the crimes, so it was no longer necessary for the state prove he was the killer.

    (source: nbcmiami.com)
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    "Men have called me mad; but the question is not yet settled, whether madness is or is not the loftiest intelligence"
    - Edgar Allan Poe

  5. #195
    Administrator Helen's Avatar
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    Judge in Parkland shooting case denies defense motion to suppress evidence collected from 2 search warrants

    By Christina Vazquez
    Local 10 News

    FORT LAUDERDALE, Fla. The judge overseeing the Parkland school shooting case has issued an order denying a defense motion to suppress evidence collected from two search warrants, one related to a Pompano Beach home the confessed gunman once resided in and another to Nikolas Cruzs cell phone.

    The Dec. 9 order pertains to arguments delivered by both sides during a pre-trial hearing on Nov. 15 that the judge took under advisement.

    During the pre-trial hearing, two Broward Sheriffs Office detectives served as witnesses in an evidentiary hearing as the prosecution worked to counter defense arguments, namely that the affidavit in support of the warrant contained false statements.

    The states response argued that any possible misstatements in the affidavit were not deliberately misleading and that even without them, there was probable cause.

    For example, the defense told the court a word used to describe a color of a shirt, maroon as opposed to burgundy was a false statement.

    Public defender: This is a false statement that it is a maroon shirt.

    BSO detective: Because it was a burgundy shirt?

    Public defender: Yes, that is still a false statement.

    BSO detective: I am not, maybe, as versed in colors as you are, but to me, thats the same color.

    It was a distinction even the judge struggled to understand during the November hearing.

    In her Dec. 9 order, Judge Elizabeth Scherer writes that the language used to describe the color of the shirt was not a false or misleading statementthis Court finds that the colors of maroon and burgundy are, to the laymen, extremely similar or synonyms.

    There was no attempt to mislead or lie to the magistrate about this detail.

    Scherers December order also found that another example the defense presented as a false statement was not an intentional misrepresentation nor made with any reckless disregard for the truth and had no bearing on the determination of probable cause.

    When it comes to the defense argument that the search warrant affidavits were overly broad and failed to establish a nexus between the criminal conduct being investigated and the places or things to be searched, the judge wrote in her order that the Court finds these arguments to be without merit. This Court finds that probable cause was established, no legal deficiency has been demonstrated, and the search warrants were properly issued.

    There is another pre-trial hearing related to pending motions scheduled for later Monday.

    https://www.local10.com/news/local/2...arch-warrants/
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    "Men have called me mad; but the question is not yet settled, whether madness is or is not the loftiest intelligence"
    - Edgar Allan Poe

  6. #196
    Administrator Helen's Avatar
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    Judge in Parkland shooter case denies several defense motions

    By Christina Vazquez
    Local 10 News

    FORT LAUDERDALE, Fla. The judge proceeding over the upcoming penalty phase for confessed Parkland school shooter Nikolas Cruz signed an order Monday denying a defense motion for alternating jury questioning.

    Earlier this month, during a Dec. 8 hearing, the defense for Cruz asked 17th Judicial Circuit Court Judge Elizabeth Scherer if they can take turns with the prosecution when asking potential jurors about their views on the death penalty. They argued that alternating questioning would be the more fair method.

    Prosecutors countered that the defense is asking the court to toss aside long-standing tradition which allows the state to go first, similar to how the state goes first during opening statements and closing arguments. They also said switching back and forth could be confusing.

    In her Dec. 27 order denying the defense request, Scherer wrote that the defendant, is unable to demonstrate that there is any advantage gained by the State in examining jurors first, adding, This Court does not believe any such advantage exists and alternating who goes first will only cause confusion in the proceedings.

    On the outstanding question about whether the judges jury selection notes should be preserved, the judge stated in a separate order signed Monday that this Court finds that its personal notes with regard to jury selection would be confidential and exempt under the Florida Rules of Judicial Administration, and as such, shall not be preserved or made a part of the record in this matter.

    In another separate order signed Monday, Scherer also denied a defense motion to video record victim impact statements.

    Her order follows arguments made on this motion by both sides during a Dec. 13 pre-trial hearing.

    The defense had stated that given there is a high likelihood of intense emotion during the presentation of victim impact statements, a video recording of the testimony is the best evidence that can be produced in order to have meaningful appellate review.

    The state has argued that video recording victim impact testimony will have a traumatic effect on these victims.

    In her order Monday denying the defense request, the judge wrote that a proper record may be made without the need for a party video recording this testimony.

    The next court hearing is scheduled for Wednesday.

    https://www.local10.com/news/local/2...fense-motions/
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    "Men have called me mad; but the question is not yet settled, whether madness is or is not the loftiest intelligence"
    - Edgar Allan Poe

  7. #197
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    Edited:

    Judge postpones penalty trial for Parkland school gunman

    A judge has postponed the penalty trial for Florida school shooter Nikolas Cruz to Feb. 21

    By Associated Press

    FORT LAUDERDALE, Fla. -- A judge on Wednesday postponed the penalty trial for Florida school shooter Nikolas Cruz until February.

    Circuit Judge Elizabeth Scherer stated in a court order that both parties requested more time to prepare experts for trial, saying they would not be ready to start on the scheduled date, Jan. 4. Scherer postponed the trial to Feb. 21.

    The trial has been delayed by the COVID-19 pandemic and arguments over what evidence and testimony will be permitted.

    https://abcnews.go.com/US/wireStory/...unman-81990427
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    "Men have called me mad; but the question is not yet settled, whether madness is or is not the loftiest intelligence"
    - Edgar Allan Poe

  8. #198
    Senior Member Frequent Poster maybeacomedian's Avatar
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    Judge: Jurors can see school shooter's Instagram photos

    By Terry Spencer
    The Associated Press

    FORT LAUDERDALE, Fla. — The gunman who killed 17 at a Florida high school four years ago had no expectation of privacy when he posted disturbing photographs to a public Instagram account before his rampage and prosecutors can use them in his upcoming penalty trial, a judge ruled at a hearing Monday.

    Nikolas Cruz wanted others to see photographs he posted without restrictions of himself with guns and the jurors who will decide whether to recommend the death penalty for the 2018 shooting at Marjory Stoneman Douglas High in Parkland can see them, Circuit Judge Elizabeth Scherer ruled.

    She rejected the argument of Nawal Bashimam, one of Cruz's public defenders, who said Cruz was not required to make his Instagram account private to have a reasonable expectation of privacy.

    “If you make your account public, how can you possibly have a reasonable expectation of privacy when the entire world can see it?" Scherer responded.

    Cruz, 23, pleaded guilty in October to 17 murders and 17 attempted murders, but a jury will decide whether he is executed or receives a life sentence without parole. Jury selection is scheduled to begin Feb. 21 and all 12 jurors must agree for the former Stoneman Douglas student to receive a death sentence. The trial is expected to last at least two months.

    Bashimam and Scherer got into a heated dispute during testimony by Broward County sheriff's detective Michael Joo, an internet crimes investigator, over misstatements lead investigators made in search warrant applications. Joo and several other assisting detectives copied those errors into their own warrant applications. Joo successfully sought access to Cruz's social media postings.

    In those applications, investigators identified Cruz's brother as a victim's brother and misstated the date Cruz's mother died. They also wrongly said a school security guard instantly recognized Cruz by name when he spotted him on campus just before the shooting and called a code red, an alert to lock down the school.

    Scherer has previously ruled the errors were unintentional and had no effect on another judge's decision to issue the warrants.

    Scherer blocked Bashimam from asking Joo most questions about those mistakes, saying her earlier decision was final. Bashimam said Scherer was blocking 10 minutes of questioning aimed at protecting Cruz's constitutional rights.

    Prosecutors also demanded access to tests that defense psychologists gave Cruz in preparation for their testimony. Prosecutors said they need that information to effectively cross-examine them.

    Cruz's attorneys said they would turn the information over, but only if prosecutors were barred from sharing it with anyone except their own experts. They also want the tests and results permanently sealed from public disclosure. They said public disclosure would violate the psychologists' ethical code and violate the test company's copyright.

    Scherer said she would likely allow prosecutors to receive the material, but would bar its public disclosure.

    https://www.yahoo.com/news/judge-jur...174839556.html
    https://archive.is/p6isl

  9. #199
    Senior Member Frequent Poster maybeacomedian's Avatar
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    Sentencing for Parkland killer Cruz trial faces delay. Prosecutors ask judge for more time

    By David Ovalle
    The Miami Herald

    The long-awaited trial for Parkland school shooter Nikolas Cruz may be delayed, possibly for months.

    Prosecutors are asking that the Feb. 21 sentencing trial be postponed to give attorneys more time to prepare. The Broward State Attorney’s Office, in a recently filed motion, cited the extensive amount of pretrial legal work that still needs to be completed revolving around mental-health experts who may testify at trial.

    “There is not enough available time remaining for the necessary depositions, motions, and expert testing to be completed,” prosecutors wrote. “As a result,the State will not be able to be ready for trial on February 21, 2022.”

    In a motion made public on Monday, prosecutors also pointed out that victims, and relatives of the dead, have been told of the need for more time. Broward Circuit Judge Elizabeth Scherer, who has been pushing lawyers on both sides to start the trial, could address the issue Wednesday during a previously scheduled pretrial hearing.

    The move to postpone the trial comes two weeks before the four-year anniversary of the Feb. 14, 2018, massacre at Marjory Stoneman Douglas High in Parkland, the worst school shooting in Florida history.

    Last year, Cruz pleaded guilty to 17 counts of first-degree murder and 17 counts of attempted murder. Under Florida law, a jury must be convened to consider whether Cruz should be sentenced to life in prison or sent to Death Row to await execution. By law, the jury‘s decision must be unanimous.

    In Cruz’s case, jurors will be asked to consider “mitigating” factors, such as his long history of emotional and mental instability and violent outbursts. Since the guilty plea, the Broward Public Defender’s Office has listed 16 defense witnesses, many of them mental-health experts who presumably will testify about Cruz’s mental troubles.

    In Florida, lawyers are allowed to conduct “depositions,” or the questioning of witnesses from the other side. In its filing, the Broward State Attorney’s Office said it still needs to conduct 25 depositions — and attend 11 hearings — before Feb. 21. And the state may need to get more counter-experts, who would also have to be deposed by the defense.

    “The State is now in an untenable position as the trial date quickly approaches,” prosecutors wrote.

    If the judge agrees, exactly when the trial would start is unclear. Prosecutors suggested a “status” hearing in late March, to update the judge on progress of the pretrial litigation.

    https://www.msn.com/en-us/news/crime...ime/ar-AATkUBQ
    https://archive.is/RetCa

  10. #200
    Senior Member Frequent Poster maybeacomedian's Avatar
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    'Hocus pocus' or sound science? Can brain mapping save Nikolas Cruz from death row?

    By David Ovalle
    The Miami Herald

    Over a decade ago, a "brain-mapping" technology known as QEEG was first used in a Florida death penalty case, helping keep a convicted Miami killer off death row by swaying jurors that brain damage had left him prone to violence.

    In the years since, brain mapping remains very much a legal gray area, inconsistently accepted in a small number of death penalty cases across the state. In some, prosecutors fought it as junk science and judges agreed to block results. In others, prosecutors raised no objections to the tests.

    The questions surrounding brain mapping will soon be on trial again in the most high-profile Florida death penalty case in decades: Florida versus Nikolas Cruz, the gunman convicted of murdering 17 students and staff members at Marjory Stoneman Douglas High in Parkland in February 2018.

    Cruz's defense lawyers have listed QEEG experts, and test results, as one part of their case intended to persuade jurors that brain defects should spare him the death penalty. The Broward State Attorney's Office has now signaled in a court filing last month that it will challenge the technology, and will ask a judge to exclude the test results—not yet made public—from jurors.

    The former Stoneman Douglas high student has already pleaded guilty but a jury must be selected to consider whether he should be executed or sentenced to life in prison. The sentencing trial could start in April, as prosecutors and defense lawyers line up a battery of mental health experts who could testify on both sides.

    What is a QEEG?

    Electroencephalogram tests, known as EEGs, record electrical energy in the brain through sensors attached to the head. The results are displayed as squiggly lines on paper—brain wave patterns that have been used by medical doctors for decades to detect evidence of stroke damage, epilepsy or other neurological problems.

    More recently, computers have been used to create the "Quantitative EEG," known as QEEG, which translates the results into a digital image of a patient's brain to help analyze brain-wave frequencies—and compare it against a data base of other normal and abnormal patterns.

    The technology was first used in a major Florida case in 2010, in the death-penalty prosecution of Grady Nelson, who stabbed his wife 61 times, then raped and stabbed her 11-year-old mentally disabled daughter. The wife died, while the girl survived.

    Nelson's defense team argued that earlier brain damage had left the killer prone to impulse and violence. Prosecutors fought to strike the QEEG test as evidence, arguing the science was unproven and used improperly to explain away Nelson's calculated, heinous crimes.

    "It was a lot of hocus pocus and bells and whistles, and it amounted to nothing," the Miami-Dade prosecutor on the case, Abbe Rifkin, told the Herald at the time. "When you look at the facts of the case, there was nothing impulsive about this murder."

    But Circuit Judge Jacqueline Hogan Scola agreed the science was sound and allowed jurors to hear about the QEEG. At the sentencing phase, a defense expert presented jurors with a computer slide show replete with colorful graphics of Nelson's brain, and explanations of the effects of frontal lobe damage.

    Jurors rejected the death penalty. Two jurors later told the Herald the QEEG evidence swayed them.

    "The moment this crime occurred, Grady had a broken brain,'' his defense attorney, Terry Lenamon, said at the time. "I think this is a huge step forward in explaining why people are broken—not excusing it. This is going to go a long way in mitigating death penalty sentences.''

    Science questioned

    Despite that success, the widespread use of brain mapping hasn't materialized in Florida death-penalty cases.

    In the ensuing years, judges in at least five cases refused to allow the QEEG evidence to be presented to jurors. Upstate, those cases were: Byron Burch, in Hernando County, Vernon Stevens, in Charlotte County and Joshua Fulgham, in Marion County. All were strangulation murders. All wound up getting life prison sentences anyway.

    In Miami-Dade, a judge excluded QEEG results for Miami cop-killer Dennis Escobar, who ultimately pleaded guilty and was spared the death penalty, and Joel Lebron, the ringleader in the brutal rape and execution-style shooting of Ana Maria Angel, who'd been kidnapped from South Beach. Lebron got the death penalty, although it was later reversed for unrelated legal reasons.

    One expert, Dr. Charles Epstein, who testified for the prosecution in the Nelson case, believes there is limited value in brain-mapping results through electrodes placed on the outside of the skull. Newer technology, such as MRIs, could provide more precise pictures.

    "We are recording through skin and bone and fluid to sample a piece of our brain and it's just very imprecise," said Epstein, a professor of neurology at Emory University who has studied QEEGs for 40 years.

    Even in the tests for supposedly "normal" people used for comparison, brain-wave signals can be affected by any number of random factors—maybe the person being tested had too much coffee that day, for example, or suffered a migraine or subtle withdrawals from marijuana use, he said.

    "A brain wave may be different, but that doesn't mean that the difference has anything to do with the responsibility for a crime," Epstein said in an interview with the Herald. "That's a big leap."

    Still, in more recent years, prosecutors in several counties have not opposed brain mapping testimony. The reason, according to Dr. David Ross, a Plantation neurologist and QEEG expert, is that more scientific papers and research over years has validated the test's reliability over the years. That has helped brain mapping gain wider use in mental-health diagnosis and treatment, though its effectiveness there also remains a subject of dispute.

    "It's hard to argue it's not a scientifically valid tool to explore brain function," Ross said in an interview with the Herald.

    Ross himself testified at the 2017 trial of William Edward Wells, the so-called "Monster of Mayport," who killed an inmate in a Bradford County prison. Wells, at the time, was serving a life sentence for murdering his wife, four others and living with the body for several days.

    Prosecutors did not object to the QEEG evidence. Ross told jurors his testing showed Wells had frontal lobe damage in his brain, and it led to his impulsive murders. "And was acting not in a premeditated way, but in an impulsive way because of the stress of all this," Ross said. "He could not control it."

    Jurors rejected the death penalty and Wells got life. He later murdered another inmate—and was ultimately sentenced to death for that killing.

    Looming legal fight

    In Cruz's case, it's not yet clear how much stock the defense intends to place on brain mapping in the legal strategy to convince jurors to keep the killer off Death Row—or how jurors will react to it if it is admitted.

    According to a court document, the defense intends to ask jurors to consider "mitigating" factors, such as his tumultuous family life, a long history of mental-health disorders, brain damage caused by his mother's drug and alcohol use, and claims that he was bullied and sexually abused by a "trusted peer."

    Among the listed defense witness, at least two cite experience with the QEEG: Dr. Richard Adler, a forensic and clinical psychiatrist of Seattle, and Wesley Center, a licensed professional counselor and "neurofeedback specialist" from Focus for Living, a center in Burleson, Texas.

    The Broward Public Defender's Office turned over a 192-page QEEG "analysis" to prosecutors, who declined to release the report because it is considered private medical information.

    In a motion to delay the trial filed last month, the Broward State Attorney's Office said that after analyzing the data, it will file a motion to strike the QEEG as "not reliable among the scientific community" and won't pass the legal standard used to allow jurors to hear about the test.

    A lengthy evidentiary hearing over whether the QEEG results can be shown to jurors is expected to take place in the coming weeks.

    https://medicalxpress.com/news/2022-...n-nikolas.html
    https://archive.is/pt3qc

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