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.

The annual jury selection seminar of the Florida Justice Association will be held this Thursday and Friday in West Palm Beach and Tampa. I will be speaking alongside the legendary down-home jury picker Keith Mitnik and the remarkably insightful jury consultant Jay Burke on both dates. Keith and Jay will focus on the effective use of cause challenges during voir dire, but my talk this year will focus on how to maximize the power of your peremptory strikes during jury selection.

If you would like to attend the seminar, contact the Florida Justice Association by clicking here, or call (850) 224-9403.

There will also be a live webcast of the Seminar on Friday, April 24th.

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.

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.

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.�

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.