MSD Student Who Witnessed Shootings Asks Judge For Protective Order To Avoid Deposition In Criminal Case

MIAMI (CBSMiami) - A motion filed recently in the Nikolas Cruz criminal case is shining a spotlight on the emotional trauma suffered by students who witnessed the tragedy at Marjory Stoneman Douglas High School in February 2018.

The motion for a protective order on behalf of a female student who was subpoenaed to give a deposition in the case illustrates the struggles some are dealing with as they prepare to possibly become witnesses in the high-profile trial set to begin in January.

Attorney Jay Cohen is representing the student and is asking Judge Elizabeth Scherer to prevent the student's deposition by the Broward County Public Defender's Office, which is scheduled for mid-December.

"This is a child who witnessed some of the most tragic of these circumstances," Cohen told CBS 4 News. "She was present. She saw death."

In the motion, Cohen writes "(the student) has suffered significant distress, anxiety, post-traumatic stress disorder, and other mental health issues that have required her to seek psychiatric/psychological and mental health treatment." The motion also says "presenting for a deposition in the instant action will cause (the student) to suffer grave stress, anxiety, and a regression in any progress she has made over the last several months of treatment."

Cohen argues that "the detriment to (the student) in requiring her to appear for a deposition in the instant action substantially outweighs any benefit to the Public Defender's Office in securing her sworn testimony."

Cohen believes there are likely many other witnesses who can testify about what unfolded on February 14, 2018.

"I don't understand how this one client of mine, this young lady who is suffering as a result of this, is so needed or necessary," he said.

The Broward Public Defender's Office told CBS 4 News that they don't want to re-traumatize the victims and witnesses by forcing them to relive the violence and fear from that day.

However, they say if the Broward State Attorney's Office is listing people as witnesses, they have an obligation to conduct depositions on behalf of their client.
Since the outset of the case, the Public Defender's Office has said that they want to avoid a trial altogether. They've said Cruz will plead guilty in exchange for a life sentence. However, State Attorney Mike Satz rejected that offer and is pursuing the death penalty in the case. The criminal trial is expected to begin in January.

Shahabudeen Khan, Associate Professor of Law at Nova Southeastern University, said these types of motions are not uncommon in criminal cases.

"The student could argue that he or she does not want to part of this trial and here are the reasons," Khan explained. "The court will very likely agree particularly if it could affect the student."

Khan also believes that prosecutors might be able to avoid having this witness testify.

"There are multiple other witnesses who can provide probably the same information," Khan said.

CBS 4 News asked the Broward County State Attorney's Office for a comment on the motion.

Paula McMahon, spokesperson for the agency, said "We are very sympathetic to the trauma that surviving victims and witnesses are experiencing and we will file our response in court."

Cohen said it's possible that a court hearing will be held to decide this request.

He also anticipates filing more of these requests for protective order in this case on behalf of other MSD students that he represents. He said he doesn't want to interfere in the criminal case. He simply wants to safeguard his client after all she's seen and suffered to avoid more setbacks for her.

"What I have an interest in is protecting my client from any, from anything that's going to worsen her condition and upset the efforts that have been made to get her as well and healthy as possible," Cohen said.