The question of whether to formally discipline Broward Circuit Judge Elizabeth Scherer’s handling of the Parkland high school mass shooting trial has turned out to be, consistently with the rest of the case, anything but routine.
Broward County has seen its share of judges facing censure for conduct on and off the bench, from public drunkenness to inappropriate relationships with attorneys and even discussing ongoing cases with activists while seeking their political support.
But in many of those cases, when the judges resigned, the Judicial Qualifications Commission backed off, finding little merit in spending political capital dressing down a judge who already discarded the robes.
Not so for Scherer, who attracted nationwide attention overseeing a lightning rod of a case — the penalty phase that decided whether gunman Nikolas Cruz would be sentenced to life in prison or death by lethal injection.
The JQC faulted Scherer for a number of missteps during the trial, including an unwarranted accusation that a member of the defense team threatened her daughter, a blistering criticism of the lead defense attorney in front of her client, and a post-trial decision to step off the bench and embrace the prosecutors, the victims’ families and others who had observed the trial from the start of jury selection.
Defense attorneys did not participate in the emotional epilogue to the trial, though Scherer insisted to the JQC they were welcome to do so.
Public Defender Gordon Weekes declined to comment.
Family members of the victims, and at least one former judge who had his own troubles with the JQC, came to Scherer’s defense Tuesday.
“Judges can’t be human now? I disagree,” said former judge John Patrick Contini, who found success as a mediator after JQC allegations chased him off the bench in 2018. The JQC dropped its investigation into Contini’s attendance record after he resigned. On Tuesday, he said they should have followed that precedent with Scherer, who announced her resignation last month effective June 30.
“Leave her alone,” he said. Judges today work “in a fishbowl. You’re walking on eggshells. Frightened of the JQC, frightened of the lawyers,” he said. “God forbid a judge shows any modicum of sensitivity, compassion and empathy? That would be comical if it wasn’t so sad.”
Max Schachter, who lost his son, Alex, in the shooting at Marjory Stoneman Douglas High School, said Scherer’s actions after the trial should be understood in the context of the toll the trial took on everyone who sat through it.
“It just showed her humanity and compassion and shared grief after witnessing all of the pictures and the gruesome testimony,” he said. “The trial was over! I didn’t see anything wrong with it.”
But the JQC disagreed. Embracing prosecutors sent an unintentional message to other defendants that the judge was partial to the state, a message that compelled the Florida Supreme Court to remove Scherer from handling an unrelated death penalty case earlier this year.
The defendant in that case, Randy Tundidor, had a reasonable fear that Scherer would be biased in favor of prosecutors, the Supreme Court said in a ruling that could easily have been applied to numerous future criminal cases.
The gravity of Scherer’s criticized conduct compelled the JQC to pursue its recommendation even though Scherer won’t be a judge in three-and-a-half weeks, said Nova Southeastern University law professor Bob Jarvis.
“This is going to be shown in law schools across Florida for years to come as an example of how you do not run a trial,” Jarvis said. “Reprimand is a light punishment when you consider what could have happened to her. … Judging is not a job everyone is cut out for.”
Scherer has not disclosed what she intends to do after she resigns, and she is barred from responding to an ongoing JQC case against her. The Florida Supreme Court will decide whether to adopt, change or reject the JQC’s recommendation.
Rafael Olmeda can be reached at rolmeda@sunsentinel.com or 954-356-4457.
