FORT LAUDERDALE (CBSMiami/AP) — Defense attorneys for confessed Parkland shooter Nikolas Cruz got a one day delay in the start of jury selection for his upcoming trial regarding the attack of a Broward jail guard back in November of 2018.

In an emergency motion, the defense asked for a delay in the trial because Cruz’s lead attorney was seriously ill and was hospitalized.

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Public defender David Wheeler got sick last week and was in the hospital for one night. He’s now recovering at home, according to the county’s chief public defender Gordon Weekes.

Monday morning, Judge Elizabeth Scherer said a delay was not realistic.

“We’re talking about a second degree felony where the incident stems from a two minute altercation,” said Scherer.

Weekes argued that not allowing a continuance because Wheeler is sick puts Cruz in legal jeopardy.

“I cannot just place anybody there. We have a number of skilled attorneys in our office but it is more to the preparation of the trial to be processed right over an individual, to have an attorney you have built a report with, that you have contact with, that you have communication with, that you can strategize with. That is what’s going to happen if the court just allows for, or encourages for, or forces us to place just anyone there,” he said.

Judge Scherer pointed out that other public defenders had been involved in his case

“There is a team of experienced lawyers that have been involved both directly or peripherally who, I understand it would be a burden to the public defender’s office to reassign them temporarily to be second or lead counsel in this case, however, as I have said, I’m more than willing to give that extra week or two that would take them off of that case to reassign them to this case,” said Scherer.

Scherer then ruled that jury selection, which was scheduled to begin Monday, will start on Tuesday and is expected to last through Friday. The trial will be delayed a week and now begin on October 19th.

Cruz, a former Marjory Stoneman Douglas High School student, brawled with Sgt. Raymond Beltran after being jailed on charges of killing 14 students and three staff members and wounding 17 others. No date has been set for the murder trial, which has been delayed by the pandemic and arguments over witnesses and evidence. It may start in the next few months.

“The accused murderer who took our children’s lives is clearly violent and took that out on a guard. He needs to face the justice system for that,” said Tony Montalto, president of Stand With Parkland, a group comprised of victims’ families. His 14-year-old daughter, Gina, died in the shooting.

Cruz, 23, faces a possible 15-year sentence if convicted of attempted criminal battery on a law enforcement officer and three lesser charges. Cruz will get either death or life in prison without parole if he is later found guilty of first-degree murder, but this trial still has relevance. If Cruz is convicted of attacking Beltran, prosecutors can argue that is an aggravating factor when they seek his execution during the penalty phase of his murder trial if convicted.

“If that is entered as an aggravating factor, it will be hard for that not to be in the back of the jury’s mind,” said Mark Dobson, a professor at Nova Southeastern University’s law school and a former Florida prosecutor.

Prosecutors declined significant comment, only saying in a statement that “the jail video and evidence in the case speak for themselves.”

Cruz’s public defenders declined comment, saying they don’t want to further traumatize the shooting victims’ families by discussing their client.

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Cruz’s attorneys are expected to argue that Beltran mistreated Cruz previously and provoked the Nov. 13, 2018, brawl, which occurred inside a Broward County jail recreation area and was captured on a soundless security video.

According to court records, Cruz’s lead attorney, Melisa McNeill, had complained six weeks before the fight to the Broward Sheriff’s Office about Beltran’s treatment of Cruz. No details of the alleged mistreatment have been released, but his attorneys said at a recent court hearing that Beltran is the only guard they have ever complained about.

Cruz’s attorneys say the sheriff’s office erased video of the three hours Cruz and Beltran spent together before the fight — even though they asked within a day that it be preserved and were told it would be.

The preserved video begins a couple minutes before the brawl. It shows Cruz walking alone in circles with his head down around tables with attached benches. He is dressed in an orange jail jumpsuit, a white long-sleeve undershirt and sandals. Beltran is sitting at a table in the corner.

Suddenly, Cruz stops about 10 feet from Beltran and the two appear to exchange words — Beltran told investigators he asked Cruz not to drag his feet and damage his sandals.

Cruz flips both middle fingers at Beltran and then charges the guard, who stands up to defend himself. Cruz, who weighs about 130 pounds (60 kilograms), throws the larger Beltran to the ground, before the guard is able to flip him and briefly pin him. Cruz grabs Beltran’s stun gun and they fight over it as it goes off, apparently jolting neither, before the guard wrests it away.

Cruz escapes Beltran’s grasp and the two take boxing stances. Cruz punches Beltran in the shoulder before the guard hits Cruz in the head, staggering him.

Beltran then rearms his stun gun and points it at Cruz, who had sat on a bench. Cruz lies face down on the ground and is handcuffed. The fight lasted almost exactly a minute. Neither was seriously hurt.

Because of Cruz’s infamy in South Florida, jury selection is scheduled to last three days — in a typical jail battery trial with a defendant the public doesn’t know, it would likely take a few hours. The court plans to screen 400 people to seat six jurors plus alternates. The typical pool for jail battery trials and similar felonies is 22, according to The Florida Bar.

Cruz’s attorneys will want to eliminate any candidates who can’t separate their knowledge of the Stoneman Douglas massacre from the only considerations jurors are supposed to make during this trial: Did Cruz attack Beltran and, if so, was he provoked? Testimony about the killings will not be permitted as that is irrelevant to the assault charge and would be prejudicial.

Once the jury is selected, the rest of the trial is only expected to last one to three days.

The murder trial is expected to last months. Circuit Judge Elizabeth Scherer has been holding frequent hearings in recent weeks to consider issues that must be resolved before it begins.

“The wheels of justice grind slowly and that is especially true with our group of families,” Montalto said.

Cruz’s attorneys have said he would plead guilty to 17 murders in exchange for a life sentence. Prosecutors have declined the offer, saying this is a case that deserves a death sentence.

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CBSMiami.com Team