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Posts filed under 'Cognizable Groups'

Court Rejects “Confession of Error” in Voir Dire

Earlier this week the First District Court of Appeal, in a kafkaesque opinion, upheld a robbery conviction even though both the State and the Defense agreed on appeal that the trial judge had committed error during jury selection. In Hayes v. State, 35 FLW D2137A (Fla 1st DCA 2010), the defendant was charged with robbery and other crimes. During voir dire, his defense lawyer learned that one of the prospective jurors, a Ms. Haupt,  had two family members in law enforcement. Obviously, this would be a concern to any defense lawyer in any criminal case so he exercised a peremptory strike to remove her. However, since the prospective juror was female, the prosecutor objected and requested a gender-neutral reason for the strike. The defense attorney, who was apparently surprised by the request since there were already so many women on the jury panel (and in fact the next prospective juror in the line-up was also a woman), said offhandedly:  “I don’t have a gender neutral reason. She has some relatives or whatnot in law enforcement……”  After hearing the explanation, the trial judge denied the strike on the grounds that the proffered reason “was not genuine under the circumstances.” In essence, the trial judge ruled he didn’t believe the criminal defense attorney’s explanation that he didn’t want to have law-enforcement-related jurors sitting on a criminal case. As a result, the woman with two family members in law enforcement sat of the jury, and James Hayes was convicted.

This is a troubling opinion. Judge Kahn wrote an excellent dissent. “I find the Attorney General’s confession of error on the jury selection issue both highly professional and highly perceptive” He noted: “As a practical matter, I can scarcely envision a situation where a defense lawyer might not, at a gut level, whether justified or not, feel concerned about defending a person accused of a serious felony before a jury comprised, even in part, of members with close relationships with law enforcement officers.” He concluded that by permitting the trial judge to prevent the peremptory strike, the majority’s opinion is “an invitation to arbitrary results,” because “until this decision, most criminal lawyers, both for the prosecution and the defense, believed that a prospective juror’s relationship with law enforcement officers would certainly be an important consideration in determining whether that juror would remain on the panel for a criminal case.” In fact, there is a case directly on point on this issue. See, Rojas v. State, 790 So.2d 1219 (Fla 3d DCA 2001) (holding that reason given for a peremptory strike — the proposed juror’s husband was a law enforcement officer — was gender neutral).

This case turns the law on the use of peremptory strikes on its head, and a perfectly valid, established and case-law-documented reason for striking a prospective juror can be discounted by a trial judge who subjectively doesn’t “believe” an attorney’s explanation.

There is a lesson to be learned from this case: Be careful what you say on the record. Think before you speak. The cold written transcript can belie your true thoughts and intentions. In this case the majority opinion relied heavily on the defense attorney’s offhanded comment that “I don’t have a gender neutral reason,” even though all experienced trial lawyers and judges know that, in reality, he did. This is a bad decision. Unfortunately, James Hayes is probably going to have to live with it — in jail.

2 comments September 30th, 2010

U.S. Supreme Court and Racially Discriminatory Strikes

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, 128 S. Ct. 1203 (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.

Add comment March 20th, 2008

Ban on Using Nationality to Exclude Jurors is Upheld

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.

Add comment March 5th, 2008

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

Whites Overrepresented in Jury Pools

An article in today’s New York Times reports that whites are overrepresented in New York jury pools. A survey of over 12,000 potential jurors was conducted by Citizen Action of New York, a public interest group in Albany. The study found that the people who show up for jury duty in Manhattan are disproportionately white, and that hispanics are the most underrepresented group. I have heard many trial lawyers in Florida complain of the same problem during jury selection in Florida, so the study is worth reading. The complete text of the article can be read by clicking here: Jury Pool Study

1 comment June 27th, 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

“Bad Vibes” and Body Language Not Enough

A trial lawyer was prevented from exercising a peremptory strike on an African-American female during voir dire even though the lawyer was getting “bad vibes” from the prospective juror and felt her body language indicated she was not being open and honest in her answers.

Continue Reading 1 comment October 27th, 2006

Muslims and Pakistanis are “cognizable groups” protected by Neil/Slappy

In a case of first impression, the Fourth District Court of Appeal held that Muslims and/or Pakistanis are members of an “ethnic” group protected from invidious discrimination during jury selection.

Continue Reading Add comment June 8th, 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