The section of The Florida Jury Selection blog dealing with juror pay has been updated thanks to the work of my brilliant law clerk, Kristin Bianculli. One of the most common concerns of potential jurors during voir dire is whether they will get paid while they are serving on a jury. State law only requires the government to pay jurors a very small amount for their service, and imposes no obligation at all on private employers. In researching this issue Kristin discovered there are some local County ordinances which require some private employers to pay some employees for all or a portion of the time they serve on the jury. The Broward County ordinance has been added to the Blog and others will be in the near future.
April 2nd, 2008
The Supreme Court of the United States reversed a brutal murder conviction yesterday concluding that the prosecutor’s peremptory strike of a black college student appeared to be racially discriminatory. In Snyder v. Louisiana, 552 U.S. __ (2008) the Court held, in a 7 - 2 decision written by Justice Samuel Alito, that the trial court committed clear error in rejecting the defendant’s Batson objection to the prosecution’s peremptory strike. Justices Thomas and Scalia dissented.
The high Court reviewed the trial transcript and concluded that the two reasons proffered by the prosecution as justification for the strike (1: that the black student looked nervous, and 2: that he had a student-teaching obligation to fulfill) were pretextual. The Court observed that this prospective juror was 1 of more than 50 venire members expressing concern that jury service would interfere with work, school, family or other obligations, and therefore that the prosecutor’s explanation was implausible.
March 20th, 2008
This Wednesday’s New York Times reports that a federal district court judge has concluded that allowing American-born blacks on a Bronx jury but systematically excluding West Indian-born blacks from the jury is discriminatory. Federal Judge William H. Pauley III concluded that prospective black jurors cannot be excluded from jury service because of their national origin even though other blacks served on the jury. In other words, it is improper to exclude prospective jurors from a jury because of their national origin (as opposed to their race). The complete Times’ story can be viewed by clicking here: Ban on Using Nationality to Exclude Jurors is Upheld.
March 5th, 2008
Edgar Sylvester Whitby was prosecuted for permanently disfiguring his victim by throwing hot water on her. He was convicted of aggravated battery “by a clearly impartial jury” in an “otherwise error free” trial. But Edgar is a free man today, and the Supreme Court of Florida just turned down the State’s appeal of this case. State v. Whitby, __ So. 2d __ (Fla. 2008).
What happened? During jury selection the prosecutor sought to use a peremptory strike on a white male — Juror Lynn. The Defense objected stating that, as a white male, Juror Lynn was a member of a protected class, and requested that the State provide a race-neutral reason for the strike. The trial court allowed the peremptory strike without requiring the State to provide a race-neutral reason. Whitby was convicted by Juror Lynn (and others), and on appeal, the Third District in a lengthy opinion reluctantly overturned the conviction due to the failure of the trial judge to require the prosecutor to provide a race-neutral reason for the strike. See, Whitby v. State , 933 So. 2d 557 (Fla 3d DCA 2006).
Although the Supreme Court initially accepted review of the case on the basis that it concerned a question of great public importance, the Court later decided not to hear it. However, the concurring opinion of Justice Pariente and the dissenting opinion of Justice Cantero in this case are educational, informative and well worth reading. The justices both argue their positions persuasively, and they illustrate the vast difference between Florida law and Federal law in the area of “Neil” challenges. There appears to be a 4/3 split in our Supreme Court on this issue.
The issue boils down to whether the party challenging an opposing party’s peremptory strike as being discriminatory must do something more than merely object to the strike on the grounds that the prospective juror is a member of a distinct racial group. In the federal courts, the challenging party must establish a prima facie case of discrimination before the other side is required to provide an explanation for the strike. But in Florida, under Melbourne v. State, 679 So. 2d 759 (Fla. 1996) and its prodigy, that is not required. As Justice Pariente points out in her concurring opinion, “Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices.”
The Procedure in Florida is relatively simple: “A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group [in this case - a white male], and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.” See, Melbourne v. State, supra. There is no requirement in Florida to prove a prima facie case of discrimination as there is in federal court.
Professor Thaddeus Hoffmeister, at the University of Dayton School of Law, applauded the Supreme Court’s decision in his blog last week. He wrote that, in his opinion, Florida has made significant strides recently in improving its jury system, and that as a result of Florida law “it is much easier in Florida to ensure that neither party is basing their peremptory challenges on either race, ethnicity or gender.” See, Juries.�
February 19th, 2008
A $900,000 plaintiff’s verdict in a rear-end collision case was reinstated last Friday by the Fifth District Court of Appeal even though two jurors had failed to disclose in voir dire that they had been injured and received medical treatment as a result of prior car accidents. During jury selection, plaintiff’s counsel asked THREE times whether anyone had been injured in a car accident, and specifically asked the entire panel “Have any of you ever been injured in any way, whether it be in a car accident, a collision, or a slip and fall?” Defense counsel’s voir dire was “very brief” and “did not mention the subject of prior accidents and injuries.” McCauslin v. O’Connor, 33 FLW D448b (Fla 5th DCA 2008).
Post-trial investigation by defense counsel revealed that two of the jurors had failed to disclose prior car accidents where they had been injured and received medical treatment. One of the jurors had even retained a lawyer and filed a claim just five years before the subject trial. Although there are other issues in the opinion, the appellate court suggested that because this was not a “highly participatory panel” and because plaintiff’s counsel’s questions were “broad,” that “prudent probing” by defense counsel “might well have resolved the problem entirely.” In other words, defense counsel should have reasked questions about prior accidents and injuries if that was an area of concern, and not relied on the panel’s responses (or lack of responses) to the questions posed by plaintiff’s counsel.
This is a troublesome case because it suggests trial counsel can’t rely on the juror’s responses to the questions of opposing counsel (and presumably the court), and that if an issue is of concern to you in your case, that you had better forego a “brief” voir dire and reask the questions that are of concern to you, even if those questions and areas have already been explored by others. Failure to do so could result in an appellate court concluding that you did not use “due diligence” in your voir dire.
February 12th, 2008
This week, in Rodriguez v. Lagomasino, the Third District Court of Appeal reversed a defense verdict in an auto accident case because the trial judge failed to strike two questionable jurors for cause. During voir dire, prospective Juror Gutierrez said he would not favor either side and would be “in the middle,” but he had also said his wife had been in an auto accident and his insurance company was going double his rates. He said he did not know if he could put his wife’s situation aside. Another prospective juror, Mr. Hillberry said he thought there should be caps on damages because of all the frivolous lawsuits in our litigious society. Juror Hillberry said he doubted his “thoughts” would come into play in this particular case, but he admitted it was possible they could. The Miami trial judge, Daryl Trawick, refused to strike the jurors for cause because “based upon their responses” he felt “they were rehabilitated.”
The Third District reversed based on Florida law’s well established “reasonable doubt” standard, and cited Nash v. General Motors Corp. 734 So. 2d 437 (Fla 3d DCA 1999), “When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submtted and the instructions on the law given to her by the court, she should be excused.”
January 26th, 2008
The Harris Corporation released a poll on jury duty yesterday. Harris Poll on Jury Duty. The poll contains some interesting findings on who is most likely to show up for jury duty and actually end up serving on a jury. It also shows that Americans, by a factor of 2 to 1, would trust a jury more than a judge to arrive at a fair verdict in a case. Sadly, the poll reveals that many Americans are still shirking their civic responsibility — three-quarters of Americans have never served on a jury, and over half have never attended jury duty. The poll is worth taking a look at, and it provides some interesting information on how Americans currently view trial by jury in this country.
January 22nd, 2008
A jury in Miami awarded $3.9 million to the mother of a young woman who was killed by a drunk driver. After the verdict, the State Farm defense attorneys found out for the first time that the jury foreman’s father had been an alcoholic. They asked for a new trial alleging that the foreman had concealed this important information from them during jury selection. The trial court denied the request, and the appellate court affirmed the verdict holding that a key requirement to establishing prejudicial concealment of information by a juror during voir dire is a “clear, direct question” requiring a response by the venire member. “No such question was posed here.” So the verdict was upheld. Hood v. Valle, 33 FLW D235a (Fla 3rd DCA 1/16/08).
But it’s not that simple. In Hood, two panels of jurors were questioned separately during voir dire. Apparently, the first panel was seated in the courtroom while the second panel was being questioned. And although there were questions asked of the second panel concerning family members with substance abuse problems — to which two members of that panel responded that their fathers had been alcoholics — no such question had been asked of the first panel from which the foreperson ultimately emerged. The first panel had earlier been asked general questions concerning whether “anything about drinking” might affect their consideration of the case, or whether they had any “strong feelings about people who drink?” But, as noted by the Court, they had never been asked the “clear, direct question” whether they had a parent who was or had been an alcoholic.
As a result of the inadequate questioning, the appellate court concluded that the first panel (sitting separately) had no reason to believe that they were to participate in the questioning of the second panel, or that they had some duty to supplement their own previous answers in response to later questioning. “No member of the first panel, including the subject juror, responded to questions addressed to the second panel.” Accordingly, the Court did not find any indication that the juror in question concealed information during the questioning, and therefore the jury’s verdict was affirmed.
January 17th, 2008
Last week, in Algie v. Lennar Corp., the 4th District Court of Appeal reversed a defense verdict in a slip and fall case. A juror had told the lawyers during jury selection that although he wouldn’t have any problem “serving fairly” if chosen, he believed that in every slip and fall case the person who slips and falls is at least partially responsible. The juror said this would factor into his decision in the case and would be something the plaintiff would have to overcome in order to prevail.
Referring back to the seminal Supreme Court decision of Singer v. State, 109 So.2d 7 (Fla 1959), and its progeny, the court observed that although the juror in this case subsequently stated he believed he could be fair, the juror never recanted or receded from his earlier expressed view. The court held that any “ambiguities or uncertainties” concerning a juror’s impartiality must be resolved in favor of excusing the juror. Therefore, the defense verdict was reversed.
November 19th, 2007
A defense verdict in a medical malpractice case was set aside due to a juror’s failure to disclose nine prior civil lawsuits and a criminal case in response to a written jury questionnaire. Dr. Sohail Delfani, shown smiling in this picture, is probably not very happy with his lawyers who apparently failed to do a proper background check on the venire panel during jury selection in his case. It would be really hard to miss NINE prior civil cases. Or — consider this –maybe the lawyers DID perform a background check on the juror and maybe they made a tactical decision to keep this information about the juror’s prior lawsuits to themselves to use in a motion for new trial in the event their client suffered an adverse verdict. Risky move, but there are rumors flying around these days that some law firms are employing these questionable tactics. We’ll never know. But if I were Dr. Delfani, I sure would want to know!
One thing the readers of this blog do know though, is that in 2007 it is now imperative that trial lawyers have their staff or investigators perform background checks on jurors during voir dire. There is a wealth of information readily available on the internet these days. It has been over five years since the Supreme Court of Florida approved performing background checks on jurors in Florida trials in the case of Roberts v. Tejada, 814 So.2d 334 (Fla 2002), and yet verdict after verdict is reversed on appeal or post-trial as a result of juror nondisclosure. In this case, it was some considerably outrageous concealment.
The 3rd DCA opinion itself is pretty unremarkable. There was no way the verdict could stand. The jury’s FOREMAN denied in his own handwriting on his written questionnaire that he had ever been involved in any other lawsuits or claims, even though apparently he had been involved in nine civil cases and a criminal one. See, Delfani v. Cromer, 32 FLW D2482 (Fla 3rd DCA - Oct 17, 2007).
November 2nd, 2007
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