Posts filed under 'Peremptory Challenges'
Today the Fourth District Court of Appeal reversed a criminal conviction because the trial judge failed to strike for cause a juror who “held conflicting views” on the presumption of innocence. Initially, during jury selection the juror stated “he’s guilty until proven innocent,” but later said “I think it was a misunderstanding earlier…,” and then went on to state ”I can be fair and impartial.” The Court looked at the entirety of the juror’s comments (which are set forth in the opinion) and concluded there was reasonable doubt about the juror’s ability to serve in the case. The Court reiterated the long-standing principle that “close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving a doubt as to impartiality.” Joseph v. State, __ So.2d __ (Fla 4th DCA, June 18, 2008.)
The opinion also sets forth the procedural steps which must be taken in order to preserve error in this situation. Defense counsel properly: 1) used all peremptory challenges, 2) requested an additional peremptory challenge, 3) objected to the court’s denial of the request for additional peremptory challenges, and 4) identified the juror he was required to accept as objectionable. The court noted, “It is not necessary that a defendant explain why the venireperson for whom the additional peremptory challenge was sought was objectionable; they must merely identify that individual as objectionable.”
Bottom line: The juror’s statements, taken in their entirety, and although coupled with an expression that she could be fair and impartial, raised a reasonable doubt about her impartiality, and she should have been excused for cause.
June 18th, 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
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, 32 FLW S258 (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.
June 22nd, 2007
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 February 15th, 2006
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