Judge denies Nikolas Cruz defense motion on jury instructions

A judge has denied a motion from Nikolas Cruz’s defense team seeking to add specific language to jury instructions in his upcoming jail battery case.

The defense wanted wording in the jury instructions related to portions of surveillance video from the day of the attack that were not preserved.

Broward Circuit Judge Elizabeth Scherer denied the motion, writing that the request was “contrary to the law.”

Last month, the defense asked Scherer to consider throwing the case out or to block surveillance video of the Nov. 13, 2018 incident involving the confessed Parkland school shooter, arguing the Broward Sheriff’s Office did not preserve “all audio and video recordings of Mr. Cruz’s pod” and “all of the video of the location of the incident.”

Scherer denied that motion, saying video outside of what was preserved was “not material and exculpatory.”

The defense last week filed a motion seeking the following language be part of instructions read to the jury:

“If you find that the Broward Sheriff’s Office lost, destroyed, mutilated, altered, concealed or otherwise caused any evidence to be unavailable while it was within its possession, custody, or control; and the evidence would have been material in deciding the issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to the State. You may consider this, together this the other evidence, in rendering a verdict in this case.”

Scherer denied that motion as well, writing in her decision Monday that, “Giving such an instruction with regard to surveillance video in which it is pure speculation to whether it contains any evidence which is either material to the instant charges or favorable to the Defendant, is contrary to the law.”

She added: “In our case, the charged incident was captured on video and is preserved and available to the parties in this case (in addition to a few minutes before and after the incident took place).”

The case of Cruz’s jail scruffle with Broward Sheriff’s Office Sgt. Raymond Beltran is set to begin Monday with final jury selection and then arguments opening on Tuesday. Last week, 106 people qualified for the final jury selection after a two-day pre-screening.

Cruz, 23, faces several charges in this case, including attempted aggravated battery on a law enforcement officer.

The case is separate from the trial on the Marjory Stoneman Douglas High School killings that is expected to follow later this year. But the outcome could have a significant impact on the capital homicide trial, because a conviction could be used as an aggravating factor in a potential penalty phase.

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