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.” In Whitby v. State, 933 So. 2d 557 (Fla 3 DCA 2006), the Court certified several questions to the Florida Supreme Court concerning the procedures pertaining to challenging racially motivated peremptory strikes. Bottom line for this opinion: when you are challenging a peremptory strike made by opposing counsel against a protected group, be sure to state and allege on the record that the challenge was “racially motivated.” Current case law indicates such an allegation may not be necessary but this could change in the future if the Supreme Court decides to hear this case.