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Posts filed under 'Appellate Issues'

Don’t Let Sleeping Dogs Lie

Potential juror Sanders may have been sleeping during jury selection. Florida law is clear that “sleeping” during voir dire is a valid race-neutral reason for striking a juror  — not to wake him up,  but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).

When the prosecutor used a peremptory strike against juror Sanders, the lawyer for the defendant, Eugene Harriell, raised a Neil challenge because Sanders was African-American.  During argument on the Neil challenge, the lawyer for a codefendant said that she didn’t see Sanders sleeping “at all,” to which the trial judge replied, “I didn’t see him sleeping either.” Harriell’s lawyer then said, “Whether he’s sleeping or not, if he had his eyes closed, it doesn’t matter. He can still be listening.” The trial judge permitted Sanders to be stricken, and yesterday the Fourth District Court of Appeal correctly upheld that decision. Harrell v State, ___ So. 2d ___ (Fla 4th DCA – 2/24/10).

The 4 DCA noted that in order for non-verbal behavior (like sleeping) to be a valid “race-neutral reason” for a strike the non-verbal behavior must meet the “hurdle” of either being observed by the trial court or being supported by the record. Dorsey v. State, 868 So. 2d 1192 (Fla. 2003) However, before that hurdle even arises opposing counsel must challenge the factual basis for the nonverbal behavior. In reviewing the above colloquy between defense counsel and the trial court, the 4 DCA noted that (unlike the lawyer for the codefendant) Harriell’s  lawyer  “did not expressly dispute the prosecutor’s observations about juror Sanders.”  The Court noted that “At best, the defense attorney conceded that the juror’s eyes may have been closed, but suggested that the juror may have been sleeping.” As a result, since he never expressly disputed the prosecutor’s observation that juror Sanders was sleeping, the matter was not preserved for appeal and his client’s conviction was affirmed.

Lesson: Don’t let sleeping dogs lie. State your observations and objections clearly, and make sure the record accurately reflects everything (verbal and nonverbal) that is taking place in the courtoom.

1 comment February 25th, 2010

SCOTUS Upholds Verdict of Improper Foreperson

Late last month the United States Supreme Court upheld the murder conviction of a man, Michael Rivera, who was convicted by a jury whose foreperson, Deloris Gomez, was improperly allowed to sit on the jury. Rivera v. Illinois, 556 U.S. __ (2009). During jury selection, Rivera’s attorney properly attempted to use one of his peremptory strikes against Gomez, but the trial judge wrongfully refused to allow the strike, erroneously believing the challenge was discriminatory since Gomez was a black woman. As a result, Gomez remained on the jury and she ended up as foreperson. Rivera was convicted of first degree murder. It was undisputed in the ensuing appeals that the trial judge erred in preventing the use of the peremptory strike because the strike was not discriminatory. Nevertheless, the United States Supreme Court affirmed the conviction on the grounds that in Illinois (unlike Florida) there is no freestanding constitutional right to peremptory challenges. They are a “creature of statute,” which a State may decline to offer at all. The Court held that if a defendant is tried before a qualified-jury composed of individuals not challengeable for cause, the loss of a peremptory strike due to a state court’s good faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.

Fortunately, peremptory strikes have strong constitutional protection under Florida law.  In several opinions in recent years, the Supreme Court of Florida has recognized the unique and important role that  peremptory challenges play during jury selection. The Court has held that “peremptory challenges are a necessary tool for achieving the constitutional right of a trial by an impartial jury.” See, Kopsho v. State, 959 So. 2d 168 (Fla. 2007) and Busby v. State, 894 So. 2d 88 (Fla. 2004). In Florida, it is reversible error and prejudice “per se” to require counsel to use a peremptory strike on a juror who should have been stricken for cause, and a new trial is required even if the jury that decided the case is composed of qualified individuals not otherwise challengeable for cause. It is per se reversible error to prevent a defendant or attorney from exercising peremptory challenges at any time before the jury is sworn. See, Gilliam v. State, 514 So. 2d 1098 (Fla. 1987), and Peacher v. Cohn, 786 So. 2d 1282 (Fla 5th DCA 2001).

As a result, Michael Rivera’s conviction would almost certainly have been overturned had the trial taken place in Florida instead of Illinois.

Add comment April 15th, 2009

Whitby Walks

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, 975 So. 2d 1124 (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.

1 comment February 19th, 2008

“Prudent Probing” During Jury Selection

Fifth District Court of AppealA $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’Conner, 985 So. 2d 558 (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.

Add comment February 12th, 2008

Bloomberg Passed Up In P.I. Case

New York Billionaire Mayor Michael Bloomberg returned to court for a second day of jury duty Tuesday, but was dismissed after attorneys passed him up while choosing a panel to hear a personal injury case. Bloomberg started his day in a courtroom with about 35 other prospective jurors. He was allowed to leave by early afternoon. Bloomberg spent most of his first day with about 40 others in a courtroom where attorneys picked a jury for an asbestos litigation suit. The plaintiff was a woman whose husband had died after years of operating a printing press that attorneys said contained asbestos in its brakes.

Add comment August 9th, 2007

Supreme Court Upholds Importance of Peremptory Strikes

The Supreme Court of Florida properly reversed a jury verdict in a case where counsel was forced to use a peremptory strike during jury selection on a juror who should have been stricken for cause. The jury verdict was reversed even though it was undisputed on appeal that the jury that ultimately decided the case was a “constitutionally impartial” jury. The Supreme Court held it is prejudice “per se” to require counsel to use even a single peremptory strike on a prospective juror if there was a “reasonable doubt” about that juror’s impartiality. No showing of “actual prejudice” is required on appeal. See, Kopsho v. State, 959 So. 2d 168 (Fla 2007).

This case reaffims the importance of peremptory strikes and demonstrates the unique position they have in jury selection in Florida. The purpose of peremptory challenges is different than the purpose of challenges for cause. In Florida, a juror should be stricken for cause by the Court if the juror is legally objectionable, i.e. if there is a “reasonable doubt” about the juror’s impartiality. Peremptory strikes are different. They are discretionary strikes for counsel. They can be used by counsel to remove potential jurors who are NOT otherwise legally objectionable. They can be used by counsel to remove potential jurors who your gut tells you will not be good jurors in your case. They are for removing the potential jurors who give you the willies, even while the “record” is clean, and even while they smile and proudly proclaim they can be fair and impartial and follow the court’s instructions. Our Supreme Court has repeatedly held it is “per se” reversible error for a trial judge to require counsel to use even a single peremptory strike on a juror who should have been stricken for cause. Forcing counsel to use even one discretionary peremptory strike on such a juror is reversible error, EVEN if the jury that ultimately decides the case is an impartial jury. It is prejudice “per se” to require counsel to use a precious peremptory strike on a juror if there was a reasonable doubt about that juror’s impartiality. On appeal, in Florida, it is not necessary to show that there was “actual prejudice” or that the jury that returned the verdict was somehow biased. That is how important discretionary peremptory strikes are during jury selection in Florida.

A common misconception of many trial judges during jury selection is that peremptory strikes can and should be used by counsel to “cure” improperly denied cause challenges. This is one of the most common mistakes made by trial judges during voir dire. Counsel should not have to use one of his or her precious and limited peremptory strikes to cure an error by the trial judge. Counsel is immediately at a disadvantage when opposing counsel suddenly has more of these discretionary strikes due to an error of the trial judge in failing to remove a juror who should have been removed for cause. That disadvantage is “per se” reversible error. Peremptory strikes are different and unique, and in Kopsho, the Supreme Court has reaffirmed their importance in the law of jury selection in Florida.

1 comment June 22nd, 2007

Don’t “Accept” A Bad Jury

This week the 4th DCA reminds us never to “accept” a jury panel if it contains objectionable jurors. If you “accept” the panel after jury selection without renewing your objections before the jury is sworn, you will probably have failed to preserve your objections for appellate review. You should always renew your objections to the jurors on the panel before the jury is sworn. See, Glinton v. State, 956 So. 2d 497 (Fla. 4DCA 2007).

In Glinton, the defendant objected to the striking of two black jurors during voir dire. However, prior to swearing in the panel, the trial court asked if the panel was acceptable to both sides. Both attorneys accepted the jury and said they were satisfied, thereby failing to properly preserve for appeal the issue of the alleged improper striking of the two black jurors.

Fla R Civ P 1.431(f) states that no one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted. However, I am unaware of any rule that obligates the court to ask the lawyers whether the jury is acceptable at the conclusion of voir dire. It may be just a custom or tradition and/or curiosity with some judges. As a practical matter it would seem prudent for the trial lawyer to always object to the jury panel before it is sworn thereby preserving all issues and objections raised during voir dire.

1 comment April 19th, 2007

Flash!! — Juror Can’t Have Lunch With Key Witness During Trial

It really happened. After finishing his testimony, a key witness had lunch in the courthouse cafeteria with a juror on the case during the trial. He later told the Court their conversation did not include anything about the case. The Trial Court expressed multiple concerns but did not declare a mistrial.  The Appellate Court reversed noting the potential prejudice to the defendant from the improper contact, i.e. “none of us have any idea what this juror is telling the other jurors in the jury room.” [To say the least!] See Howard v. State, 943 So. 2d 884 (Fla. 2DCA 2006).

This seems like a good case to end the year! Happy Holidays to all our friends across the State from the trial team at Kelley Uustal here in sunny South Florida.

Add comment December 21st, 2006

3rd DCA Certifies Questions on Procedures for Neil Challenge

The 3rd DCA reversed a criminal conviction simply because the trial judge failed to conduct a requested Neil inquiry concerning a challenge directed at a “white male.” The trial was apparently “otherwise error free” and “decided by a clearly impartial jury.”

Continue Reading Add comment February 15th, 2006