FORT LAUDERDALE, Fla. -- The attorneys for the suspect in last year's Florida high school massacre told a judge Thursday that if she doesn't allow them to question his former mental health counselors without prosecutors' knowledge and presence she risks causing a lengthy delay to his trial or a possible reversal on appeal if he is sentenced to death.
Melissa McNeill, Nikolas Cruz's lead public defender, asked Circuit Judge Elizabeth Scherer for the ability to secretly subpoena the counselors who treated the 20-year-old suspect for years before the before the Feb. 14, 2018, shooting and meet with them privately - a move that usually requires prosecutors be told and present during questioning.
McNeill told Scherer that the counselors' employer won't make them available without a subpoena because it is being sued by some families of the 17 dead and 17 wounded students. Under normal circumstances, she said, a defendant's counselors often meet alone voluntarily with defense attorneys in death penalty cases to help them understand any psychological issues that could help persuade the jury to vote against execution.
McNeill told Scherer that if she refuses to let them issue secret subpoenas, she will request that Cruz's trial, scheduled for early next year, be postponed until the lawsuits are completed and the counselors are available to talk voluntarily. That could take years. If that is denied, McNeill told Scherer she is risking that the state or U.S. Supreme court could overturn a guilty verdict or death sentence because her team will not be able to represent Cruz effectively.
McNeill said prosecutors will still have the opportunity to question the counselors before trial if the defense decides to call them as witnesses during a death penalty phase.
"This case is different, judge, because the civil litigation is preventing me from doing my job," McNeill told Scherer. She added later, "There is no prejudice to the state by allowing us to proceed this way."
Assistant State Attorney Steven Klinger vehemently opposed McNeill's request, saying it would be unprecedented and a clear violation of state law and court decisions. Only prosecutors, he said, can secretly subpoena witnesses under Florida law, but they then must make anything said available to the defense before trial.
McNeill, he said, "is going completely around the rules." If the defense needs to subpoena witnesses, they need to follow the normal process, he said.
Scherer said she will rule soon, but wasn't specific.
It has previously been disclosed that Cruz had a long history of mental health issues. Those included making threats at school, fights, vandalism, and other inappropriate behavior. He spent years being periodically assigned to a school for students with behavioral and emotional problems before he was allowed to briefly attend Stoneman Douglas. He was kicked out in early 2017.
Cruz's attorneys have said he would plead guilty in exchange for a life sentence, an offer prosecutors have declined.