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Litigation: The Florida Jury Selection Blog
By Robert W. Kelley, Esq.
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.?
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