“I was going to grant the state’s motion without prejudice, (but) at this time I am going to dismiss the state’s motion as premature,” Circuit Court Judge Elizabeth Scherer said.
The prosecution requested starting the process over because Scherer had excused 11 prospective jurors who said they could not follow the law before attorneys for both sides got to question them.
Assistant State Attorney Carolyn McCann said Monday “a mistake was made,” calling the situation “a miscommunication,” and filed a motion asking the judge to strike the jury panels. “There’s too many issues at this point. It’s better to just start fresh.”
Scherer granted the prosecution’s request.
“I’m going to start over,” Scherer said Monday. “As soon as the panel comes up, I’m granting the motion. We’re going to start over.”
Scherer, however, added a caveat: She would allow the defense to argue on Wednesday why they shouldn’t start over, an argument that prevailed, as the judge said that she would instead bring those 11 prospective jurors back Monday for additional questioning rather than starting over entirely.
The back-and-forth on selection follows an outburst by prospective jurors inside the courtroom Tuesday that led to more dismissals.
One potential juror was “mouthing expletives” at Cruz, which prompted other jurors to become “belligerent,” Scherer told Cruz’s attorney. The judge said bailiffs restrained Cruz against a wall to protect him from the several people “making a threat.” Scherer dismissed the rest of the prospective jurors who were in the room for the incident.
Jury selection is further complicated by the fact that proceedings are expected to be especially lengthy. Both sides told Scherer the penalty phase could last four to six months.
Jurors are expected to hear both aggravating factors and mitigating circumstances — reasons why Cruz should or should not be put to death. If the jury unanimously finds at least one aggravating factor exists in the case, it must then be unanimous in recommending the death penalty. Cruz’s sentence would otherwise default to life in prison.
If the jury recommends the death penalty, the judge could choose to follow the recommendation or sentence Cruz to life in prison.
CNN’s Alta Spells contributed to this report.