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: The Florida Jury Selection Blog

Court Rejects “Confession of Error” in Voir Dire

By Robert W. Kelley, Esq.


Earlier this week the First District Court of Appeal, in a kafkaesque opinion, upheld a robbery conviction even though both the State and the Defense agreed on appeal that the trial judge had committed error during jury selection. In Hayes v. State, 35 FLW D2137A (Fla 1st DCA 2010), the defendant was charged with robbery and other crimes. During voir dire, his defense lawyer learned that one of the prospective jurors, a Ms. Haupt, had two family members in law enforcement. Obviously, this would be a concern to any defense lawyer in any criminal case so he exercised a peremptory strike to remove her. However, since the prospective juror was female, the prosecutor objected and requested a gender-neutral reason for the strike. The defense attorney, who was apparently surprised by the request since there were already so many women on the jury panel (and in fact the next prospective juror in the line-up was also a woman), said offhandedly: “I don’t have a gender neutral reason. She has some relatives or whatnot in law enforcement……” After hearing the explanation, the trial judge denied the strike on the grounds that the proffered reason “was not genuine under the circumstances.” In essence, the trial judge ruled he didn’t believe the criminal defense attorney’s explanation that he didn’t want to have law-enforcement-related jurors sitting on a criminal case. As a result, the woman with two family members in law enforcement sat of the jury, and James Hayes was convicted.

This is a troubling opinion. Judge Kahn wrote an excellent dissent. “I find the Attorney General’s confession of error on the jury selection issue both highly professional and highly perceptive” He noted: “As a practical matter, I can scarcely envision a situation where a defense lawyer might not, at a gut level, whether justified or not, feel concerned about defending a person accused of a serious felony before a jury comprised, even in part, of members with close relationships with law enforcement officers.” He concluded that by permitting the trial judge to prevent the peremptory strike, the majority’s opinion is “an invitation to arbitrary results,” because “until this decision, most criminal lawyers, both for the prosecution and the defense, believed that a prospective juror’s relationship with law enforcement officers would certainly be an important consideration in determining whether that juror would remain on the panel for a criminal case.” In fact, there is a case directly on point on this issue. See, Rojas v. State, 790 So.2d 1219 (Fla 3d DCA 2001) (holding that reason given for a peremptory strike — the proposed juror’s husband was a law enforcement officer — was gender neutral).

This case turns the law on the use of peremptory strikes on its head, and a perfectly valid, established and case-law-documented reason for striking a prospective juror can be discounted by a trial judge who subjectively doesn’t “believe” an attorney’s explanation.

There is a lesson to be learned from this case: Be careful what you say on the record. Think before you speak. The cold written transcript can belie your true thoughts and intentions. In this case the majority opinion relied heavily on the defense attorney’s offhanded comment that “I don’t have a gender neutral reason,” even though all experienced trial lawyers and judges know that, in reality, he did. This is a bad decision. Unfortunately, James Hayes is probably going to have to live with it — in jail.

Full post as published by The Florida Jury Selection Blog on September 30, 2010 (boomark / email).

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