Florida school shooting suspect Nikolas Cruz listens during a status check on his case at the Broward County Courthouse in Fort Lauderdale. Photo: Amy Beth Bennett/South Florida Sun-Sentinel via AP.

As 20-year-old Nikolas Cruz, charged with carrying out one of the deadliest shootings in U.S. history, anticipates a $432,000 payout from his dead mother's life insurance policy, the court has an urgent decision to make: What now?

The specter of the death penalty hovers over Cruz as he awaits trial, having confessed to killing 17 people at Marjory Stoneman Douglas High School in Parkland. But Broward Public Defender Howard Finkelstein asked the court to consider removing his office from the case Wednesday, as Florida law prohibits it from representing defendants with the means to retain a private lawyer.

It's a “behemoth case,” with 4 million pages of discovery and 986 witnesses, according to Finkelstein, who said he doubts whether the money is enough for a proper defense, but Florida law means he might have to go.

“In my 42 years as a public defender, I've never had a client who had access to over $400,000,” Finkelstein said. “Legally, I have an ethical obligation because the law says I'm only supposed to represent indigent people, and at that point the defendant was wealthier than most of the people on the defense team.”

The average salary of an assistant public defender in Broward is $61,749 as of February, Finkelstein said. Starting salary is $40,000, while lawyers in the most serious cases can earn up to $100,000.

Because the court has considered whether Cruz was indigent in the past — when it emerged that he was entitled to $25,000 from his mother's estate — it was important to tell the court about this other policy, which Finkelstein says is ready for collection. The court previously found $25,000 wasn't enough to cover the defense, and Cruz reportedly wanted to donate it to victims' families.

But is the $400,000 insurance benefit enough to cover Cruz's projected court-related expenses? Probably not, according to Miami criminal defense attorneys Bruce Lehr of Lehr, Levi & Mendez and David Weinstein of Hinshaw & Culbertson, both of whom also served as state prosecutors. Forgetting about attorney fees, the price of gathering expert witnesses, depositions and transcripts alone could break the bank, according to Weinstein.

“I would venture to say it's going to cost close to half a million dollars,” Weinstein said.

'We're not that unique'

If a private defense attorney does take the baton, the litigation likely won't change much, according to Lehr. Though the trial is yet to play out, Cruz has confessed and appears to have a basis for arguing mental health deficiencies.

Bruce Lehr, Lehr Levi & Mendez, Miami.

“A lawyer has, as I see it, only one path that he or she can take, which is insanity,” Lehr said. “That will be the same whether it's a public defender using experts that are paid for by the state or private experts hired by a private counsel.”

In Lehr's experience, an expensive expert is no better than an expert working at the state's indigency rates.

“A good expert is a good expert, whatever he or she decides to charge, and I would assume the public defender or anyone else would get the best expert they could find,” Lehr said.

Weinstein agrees that any lawyer would have the same goal: avoid the death penalty. And that would mean collecting as much evidence of mitigating factors as possible.

“They're going to continue exactly what's been going on,” Weinstein said. “No two lawyers think alike, but we're not like snowflakes. We're not that unique.”

Whoever represents Cruz will need to bring their A-game.

“You need thick skin to live through the dirty looks and comments when walking in and out of the courtroom by people ignorant enough to feel that because you're representing someone they feel is evil then you must be evil,” Lehr said.

Is Cruz indigent?

However, Weinstein warned against putting the cart before the horse, since Cruz doesn't have the money in hand yet.

David S. Weinstein, Hinshaw & Culbertson, Miami.

“As [Cruz] sits there in jail right now, he doesn't have that asset, nor does he have any access to that asset,” Weinstein said. “So it would be premature for the court to determine that he's no longer indigent.”

The way Weinstein sees it, it's hard to judge whether Cruz is indigent without knowing the terms of the life insurance policy. There's also the possibility victims' parents could claim a portion in civil court. Finkelstein said he notified them before moving to withdraw and suspects some might move to freeze Cruz's assets.

“I don't really believe we are going to be getting off this case,” Finkelstein said. “The victims' families, because of the awful trauma and tragedy that has destroyed their lives, have a right if they win their civil case, to receive monetary damages. … Is he really not indigent if he can't get the money?”

Since legal proceedings aren't known for speed, the answers to those questions could take a while to surface.

“At this juncture, if the court holds a hearing tomorrow or next week and somehow makes an inquiry to determine whether he's indigent, he's still indigent,” Weinstein said.

That said, if a lawyer needs to be removed from a case, Weinstein pointed out it's best  to appoint a new lawyer as soon as possible. There's also Florida statute section 938.29, Weinstein highlights, that allows courts to impose a lien against defendants who might have been indigent, assessing costs that can be reimbursed to the county that represented them.

“That might be the better resolution of this,” Weinstein said. “The judge can say that's still prospective, but at least there can be a placeholder there.”

In Lehr's view, the last thing the presiding jurist, Broward Circuit Judge Elizabeth Scherer, needs is for the case to get sidetracked, or worse — for it to have to be retried because of interference with Cruz's right to effective representation.

“Of course the defendant is entitled to both a speedy trial and all the time that he needs to prepare, but the families are having salt rubbed on their wounds every time this case gets continued,” Lehr said.

Whatever happens, Finkelstein is sure it won't be straightforward.

“This case keeps creating issues that nobody has ever seen before,” he said. “This case is going to break budgets, break hearts and break lives.”

The Broward State Attorney's Office, led by Mike Satz, declined to comment. Scherer is expected to rule next week on whether the Office of the Broward Public Defender must withdraw from the case.

 

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