Randy W. Tundidor wants Judge Elizabeth Scherer of his case in part because she hugged members of the prosecution in the Parkland mass shooting penalty phase. (Mugshot of Tundidor: Florida Department of Corrections; screenshot of Scherer: Law&Crime Network)
Judge Elizabeth Scherer was disqualified from a separate capital punishment case partly because she hugged the prosecution team members in the Parkland mass shooting penalty phase.
The case in question involves defendant Randy W. Tundidor, 56. Authorities said he and his son Randy H. Tundidor broke into the home of landlord Joseph Morrisey after the victim moved to evict Randy W. Tundidor and his family, according to The South Florida Sun Sentinel.
Authorities said the defendants terrorized him, his wife and son. Randy W. Tundidor murdered Morrisey before he and Randy H. Tundidor set fire to the victim’s home with the man’s wife and son still inside, according to prosecutors. The father defendant was convicted.
The defendant’s son, Randy H. Tundidor, turned state’s witness, testified at the father’s trial, and received a 40-year prison sentence.
Sentenced to death, Randy W. Tundidor is fighting the punishment and argues that he reasonably feared Scherer would not give him a fair hearing.
Scherer presided over the penalty phase for the Parkland mass shooter, Nikolas Cruz, who murdered 17 teachers and students and tried to kill 17 more.
Cruz’s defense said his biological mother used drugs and alcohol while he was pregnant with him. Though lead prosecutor Michael Satz argued that none outweighed the aggravating factors, jurors could not reach the unanimous verdict to recommend a death sentence. Cruz received life in prison without the possibility of parole.
Scherer lashed out at the defense during the proceedings. She dressed down members numerous times during the penalty phase and sentencing proceedings. On one occasion, she ripped the defense for “unprofessionalism.” Scherer faced criticism for hugging members of the prosecution after the penalty phase.
Tundidor argued that Scherer, a former prosecutor who used to work for Satz, was inappropriately chummy. Satz appeared to be walking in the other direction as the hugs occurred. Members of the hugged prosecution team included Assistant State Attorney Steven Klinger, who is also handling Tundidor’s case, his defense wrote.
From the ruling by the Supreme Court of Florida on Thursday:
Tundidor also alleged that while off the record at a status hearing in Tundidor’s case on November 4, 2022, Judge Scherer “sympathetically” asked ASA Klinger how he was doing. According to Tundidor, “Klinger responded to the effect that ‘words cannot describe’ how he felt” and that “he was doing better than his mother,” “ ‘who follows the news.’ ” Tundidor’s motion stated that although neither Judge Scherer nor ASA Klinger mentioned the Cruz case explicitly at the November 4 hearing, “given the circumstances and events of the previous two days and ASA Klinger’s reference to ‘the news,’ counsel verily believes that Judge Scherer and Mr. Klinger were commiserating over their shared disappointment at the outcome of that case.”
Under the law, Tundidor does not have to show that Scheerer is biased or unable to be impartial, the ruling stated.
“Rather, [t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially,” they wrote, citing case law.
Justices ultimately decided Scherer could not preside over Tundidor’s case.
“We conclude that the combination of certain circumstances contained in the allegations in Tundidor’s motion regarding the actions of Judge Scherer in the Cruz case on November 2, 2022, and in Tundidor’s case on November 4, 2022, which he alleged showed a sympathy with the State that was linked to the outcome of another capital case, would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial proceeding,” they wrote. “The crucial facts that together were sufficient to create such a well-founded fear are the hugging of ASA Klinger by Judge Scherer—in the courtroom while still wearing a robe—at the conclusion of the Cruz murder case, and the personal exchange between Judge Scherer and ASA Klinger two days later, during Tundidor’s postconviction proceedings, in which the judge commiserated with Klinger.”
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