Defense Declines To Motion For Mistrial In Parkland School Shooter Nikolas Cruz Penalty Trial

FORT LAUDERDALE (CBSMiami) - At the start of day three of the jury selection process for the penalty phase trial of Parkland school gunman Nikolas Cruz, his defense attorneys did not request a mistrial.

On Tuesday Circuit Judge Elizabeth Scherer gave them the opportunity to make the filing on Wednesday morning after an issue arose during the jury selection process on Tuesday.

Eleven potential jurors were dismissed before the defense team could question them. The judge dismissed them because they said they couldn't follow the law in deciding whether to give the killer the death penalty.

The judge then offered to call them back, but the defense had issues with that. They raised concerns that those possible jurors could go out and talk to their friends or family about the case before being questioned.

"The defense has no motion before this court. Yesterday the court graciously offered to re-summon all 11 of those people that were excused over the objection of the state and the defense. So, judge, you made an effort to remedy the issue, you indicated they would be back the week of April 23rd. I don't believe the defense at this point has suffered a prejudice if we are unable to do the inquiry requested yesterday then we can revisit it. The defense has never mentioned a request for a mistrial," said defense attorney Melissa McNeill.

The defense, however, has not waived the idea of filing the motion in the future.

If a mistrial had been declared, it would have caused a delay and the lawyers would start back at day one of the jury selection process, the last two days wouldn't count.

The return of the 11 potential jurors raises a number of legal questions

The judge and attorneys are looking for the jury that will decide Cruz's fate, he's already pleaded guilty to the mass shooting at Marjory Stoneman Douglas High School four years ago.

Now the question is should he get the death penalty or life in prison? Under Florida law, all 12 jurors have to unanimously agree before the defendant is sentenced to death.

To be selected, candidates must say they can judge Cruz fairly and vote for the death penalty if the evidence requires it.

Approximately 1,500 potential jurors, perhaps more, will be screened over the next few weeks as the pool is pared down to 12 plus eight alternates in a three-step process that will run through the end of May.