Posts filed under 'Cognizable Groups'
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, 552 U.S. __ (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.
March 20th, 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
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
June 27th, 2007
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, 32 FLW D1021a (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.
I am unaware of any rule that obligates the court to ask the lawyers whether the jury is acceptable before the jury is sworn. 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.
April 19th, 2007
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 October 27th, 2006
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 June 8th, 2006
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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