Articles Posted in Florida Jury System

The First District Court of Appeals, which includes cases in Pensacola, Milton, Fort Walton and Destin, among other cities located in the panhandle of Florida, reversed a case yesterday because the prosecution exercised a “challenge for cause” improperly.

In a nutshell, there are two types of challenges that an attorney can make against a prospective juror being seated as a juror in a criminal or civil case. Depending on the type of case or charge, each side is given a set amount of “peremptory challenges.” A peremptory challenge is basically a challenge the attorney can make without providing a reason. However, opposing counsel may object to a peremptory challenge if he or she believes the challenge is improperly based upon race, sex, or other identifiable classes.

The other type of challenge is called a “challenge for cause.” A challenge for cause is exercised against a juror if there is no reasonable doubt that the challenged juror can be fair and impartial. In Blake v. State, 1D12-1385 (Fla. 1st DCA Feb. 5, 2013), the appellate court reversed a conviction because a prospective juror had merely indicated he was the fiance of a public defender in a different area of the panhandle of Florida. The prospective juror acknowledged that his fiancee talked to him about the types of cases she worked on but also indicated he would have no problem finding a person guilty if the evidence supported such a result. The State moved to strike for cause this prospective juror solely on the basis of his engagement to a public defender employed in a different circuit and over Mr. Blake’s attorney’s objection, the court granted the strike. This is somewhat technically based, but Mr. Blake argued that merely because the State had additional peremptory strikes that the conviction should still be reversed based upon the Florida Supreme Court’s ruling in Ault v. State, 866 So. 2d 674 (Fla. 2003), which, in turn, was based on United States Supreme Court precedent. In Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) explained that the unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.” Ault, 866 So. 2d at 686 (emphasis in original). Based on Ault, the the First District Court of Appeal found that the prosecution’s concession is correct, but its harmless error argument is not, and reversed Mr. Blake’s conviction remanding the case for a new trial. The bottom line is merely because a prospective juror was engaged to a defense attorney was not a sufficient basis for the prosecution, in this case, to challenge the juror for cause because he clearly stated he could be fair and judge the evidence and the facts and convict someone if the prosecution proved their case.

I apologize for not blogging or blawging, however one wants to spell it, more the last few months. I have been interested in writing on many different topics but with some of our recent cases coming to resolution, traveling near the end of the year, and attending both a Trial Lawyers College workshop and annual meeting and attending a retreat and mission work with Don Miguel Ruiz, Jr. M.D., near Liberia, Costa Rica, my priorities have lied elsewhere lately.

A recent experience I learned a great deal from was being summoned for jury duty in Escambia County last week. Albeit I have been summoned four times and never chosen to sit on a jury, I always find the experience interesting because of being on the other side of the fence, so to speak. (Lawyers often believe other lawyers cannot be impartial and follow the law which is simply not true).

The day started out by having to arrive at the Courthouse at 8:00 AM and, after checking in much like one would do as if casting a vote, we were directed to sit in a room that probably held 350 or so people. People arriving late were directed to an overflow room, where they watched everything going on within the room I was sitting in on a video fed television.

In Florida, and every state in America other than Louisiana and Oregon, in order for the government to convict someone of a crime it must be by a unanimous verdict. What this means in Pensacola or other Florida criminal courts is that all six jurors must be unanimous in their verdict. In Florida criminal courts, only Defendant’s charged with first degree murder are entitled to twelve member juries. There is case law that supports if one of the twelve in a murder case, or one of the six in a non-murder case, becomes for any reason incapable of serving as a jury on the case once the trial has begun, a stipulation between the parties may allow the trial to proceed with a verdict based upon the smaller number of jurors. This rarely occurs because in most cases alternate jurors are selected at the beginning of the trial for the very reason if one of the jurors becomes incapable of serving the alternate will then fill the missing juror’s place. People are not told who are or who not alternate jurors are so that all the jurors will pay close attention to the evidence during the trial. However, in Florida, even if less than six or twelve are allowed to reach a verdict, the verdict must be unanimous. In all federal courts, which require twelve member juries is all criminal cases, the verdict must be unanimous. If the defendant in a criminal case chooses, and he or she initiates the waiver, a Florida jury may return a binding less than unanimous verdict. Flanning v. State, 597 So. 2d 864 (Fla. 3rd DCA 1992). (Why on God’s green earth a defendant would ever do this, I don’t know. I guess an exceptional situation may exist where the defendant feels confident that the majority of jurors are going to find him not guilty; however, in my opinion, at the very least, this “assumption” would have to carefully weighed agaist whether the prosecution would re-try the defendant).

This is not the case in the States of Louisiana and Oregon. In those states, an 11-1 or 10-2, will result in conviction of a criminal defendant. These two state’s non-unanimous verdict requirements were recently “denied review” by the U. S. Supreme Court in Troy Barbour v. State of Louisiana. More practically speaking, Mr. Barbour had requested that the U.S. Supreme Court review the Louisiana state court jury system and mandate it to require unanimous jury verdicts in all criminal cases. This positiion was even supported by “The American Bar Association,” generally known as a somewhat conservative organization. The ABA stated in its amicus curie brief that research has shown that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials. The U.S. Supreme Court chose to not even hear the Louisiana case therefore the law remains in Louisiana and Oregon that citizens can be convicted by a less than unanimous jury verdict in criminal cases.

In America, if a jury fails to reach a verdict, which is known as a “hung” or “dead-locked” jury, the State or Federal government has the option of re-trying the defendant. How long a jury deliberates before it is declared “hung” or “dead-locked” is a matter within the discretion of the trial court judge in the State of Florida. Florida Rule of Criminal Procedure 3.560.