Fundamental Fairness at Trial – Juror Intimidation

Courtrooms in Pensacola, the State of Florida, as well as all state and federal courts throughout the nation, are open to the public. In other words, anyone can go the Courthouse in Pensacola, Tallahassee, Miami, Los Angeles or anywhere else in America and watch Court proceedings. The Sixth Amendment to the U.S. Constitution requires that courts be open to the public; certain limitations have been imposed that either require a courtroom be closed or give the discretion to close a courtroom to the judge in certain situations, for example, when a minor child testifies about sexual abuse or when classified government information is presented in federal court.

An interesting decision was rendered the First District Court of Appeals in Shootes v. State, —So. 3rd —, 2009 WL3353139 (Fla. 1st Dist. 2009) on October 20, 2009. This is the appellate court that hears appeals from Pensacola, Tallahassee and Jacksonville, and all places in between. The case involved charges of aggravated assault with a firearm on a police officer. Jacquan Shootes was convicted of two counts of aggravated assault on a police officer. The case stemmed from Shootes car being hemmed in by two undercover Jacksonville narcotics officer’s cars with deep tinted windows to which Shootes argued at trial he thought were robbers — hence he opened fire upon them. Officers testified they announced who they were, were dressed in clothing marked “Police-Narcotics Unit” and had badges around there necks or on their bodies somewhere. If a person does not realize a person is a police officer who advances upon them an issue of self-defense is presented if the defendant claims he did not realize they were law enforcement officers before force was used. The most significant issue in this trial was whether Shootes could identify the individuals who hemmed in were law enforcement officers or not.

What happened during closing arguments is what makes this case interesting. Anywhere from 50 to 75 uniformed Jacksonville Sherriff’s Officers showed up in Court. Just like you or me, they have a right to be present; court is open to the public. However, this large congregation of uniformed officers sat as close to the jury as they possibly could. (For some unexplained reason the trial was moved to a larger courtroom for closing arguments). Some of the deputies were dressed like undercover narcotics officers wearing clothing marked “Police” or “Narcotics, Jacksonville Police Officer.” The defense attorney did not notice the huge mass of officers sitting behind him during his presentation until after his argument. The jury convicted Shootes as charged and the defense attorney moved for a new trial based upon Shootes Sixth Amendment right to a fair trial was denied. The trial court denied the motion stating that the large conglomeration of law enforcement did nothing to communicate with the jury. The presence of courtroom observers wearing uniforms, insignia, buttons, or other indicia of support for the accused, the prosecution, or the victim of the crime does not automatically constitute denial of the accused’s right to a fair trial. Holbrook v. Flynn, 475 U.S. 560 (1986) (four uniformed officers seated immediately behind defendant); Carey v. Musladin, 549 U.S. 70 (2006) (fair trial not denied by wearing of buttons with photo of victim by some members of victim’s family). However, there are situations where the atmosphere in the courtroom might infringe on the defendant’s right to a fair trial. When this issue is raised, a case-by-case approach is required to allow courts to consider the “totality of the circumstances.” Holbrook v. Flynn, 475 U.S. 560, 569 (1986).

The appellate court found that, pursuant to Florida Rule of Criminal Procedure 3.600(b)(8) and the Sixth Amendment of the U.S. Constitution the trial court should have granted a new trial because he did not receive a fair and impartial trial. The appellate court found that in light of the huge number of officers sitting so close to the jury that an unacceptable risk of impermissible factors may have come into play in determining the jury’s verdict. There was a substantial basis to believe the officers were there to convey a message to the jury, specifically, that Shootes had to recognize the four officers who jumped him as being officers and that the large number of officers showing up for the closing argument wanted a conviction. The Court found fundamental error and granted the defendant a new trial. His fate is still uncertain in light of his upcoming pending trial.

Although I don’t recall the name of the specific case, we had a similar situation in Pensacola occur approximately 15 years ago, except the large number of officers (25 to 40) showed up at a sentencing hearing of a defendant convicted of a crime involving a law enforcement officer. The officers appeared to influence, or perhaps intimidate, the judge into imposing a severe sentence. However, the judge’s sentence, as I recall, was not in the least affected by the officer’s presence.

If fairness is what is desired by all parties involved in the criminal justice system, is the behavior of the Jacksonville Sheriff’s Department turning out at least 50 officers for the closing arguments in the Shootes’ case indicia of an organization that is fair minded? One has to ponder, if officers would display such behavior in the public fishbowl of a courtroom, what might happen on the street late at night, when it is only you and them?