On appeal, the First District Court of Appeal held the trial court abused its discretion in denying the mistrial because the defense attorney’s “egregious” statement was misleading, and was “nothing less than an appeal to the jury to protect that individual from a harmful verdict.” The appellate court noted that because Florida law prevents liability insurers from being named as parties in car accident cases, it would be impossible for the plaintiff’s attorney to refute the misleading statement, and therefore the jury verdict rendered in the case was a “miscarriage of justice.” Hollenbeck v. Hooks, 33 FLW D2027 (Fla 1 DCA 2008).

This excellent opinion deals squarely with an improper voir dire technique that some insurance company lawyers have been using, in one fashion or another, for many years. Hopefully, this opinion will put an end to these kind of misleading statements (e.g. “Do you all understand that insurance is not an issue in this case?”). The statement by the insurance company lawyer in this case was particularly offensive because of his attempt to disguise himself as an attorney for consumers.

The Appellate Court affirmed the conviction for two reasons: 1) this prospective juror was not “under prosecution” for this crime in this scenario (as used in the jury qualification statute) because  the state attorney had not exercised his discretion to pursue the charges against her through formal judicial proceedings (i.e. merely getting the ticket was not enough), and 2) even if this juror was “under prosecution” during jury service, a new trial was not warranted because there was no showing of prejudice by Tucker.

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.

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.

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.�

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.

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.”