Online Legal Writings

Mr. Miller writes both a monthly column for the Martin County Bar Association which you can read below, and regularly updates Florida’s newest appellate law-focused blog. This blog will regularly cover nearly all decisions of the Florida Supreme Court, and other appellate news of note in the State of Florida. Click here to view blog.

Martin County Bar Association Monthly Magazine (February 2009)

Appellate Practice Committee
Mark Miller, Chair

Late last month, the Florida Supreme Court reversed the judgment and conviction for Willie H. Nowell, a man who had been sentenced to death for a heinous murder. See Nowell v. State, 2008 WL 5396698 (Fla. Dec. 30, 2008). In this per curiam opinion, the Court addresses both race neutrality in peremptory strikes and improper argument.

Both prosecutors and criminal defense attorneys will want to review the Court’s discussion of race-neutrality in jury selection, and its application of the Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996) three-part test for evaluating a peremptory strike. The assistant state attorney’s proffered reasons for striking the potential juror at issue were three-fold: i) he just didn’t like the potential juror; ii) the prospective juror was young, like the defendant, thus potentially too willing to put himself in the shoes of the defendant; and iii) his wife worked for a day care center (a fourth reason was proffered later, that the potential juror had said he didn’t want to judge the defendant, but the Court rejected that reason as so obviously pretextual as hardly worth addressing).

The Supreme Court reversed this conviction largely because these three reasons were all pretextual. The Court’s focus in reaching this decision (Step 3 of the Melbourne analysis) was not the reasonableness of the proffered rationales for the strike, but the genuineness of those reasons. The Court’s focus on the first reason -- the ASA just didn’t like the juror -- gives a bit of warning to prosecutors. If the court is looking out for race-discriminatory reasons as the real reason for striking a potential juror, you should be ready to articulate a tangible reason for the strike, a reason supported by specifics in the record. Stating that you "don’t particularly like a juror" will not only be insufficient to sustain the strike, it should lead the trial court to question more closely the other reasons proffered. In this case, the Supreme Court explained that "we simply cannot ignore that the prosecutor’s initial response when asked for a race neutral reason was essentially that he did not particularly like the juror." This legally unjustifiable rationale for the strike arguably tainted the other justifications, in the eyes of the Supreme Court.

The other reasons for the strike, however, were insufficient as well -- youth of the defendant was no different than youth of the victim, so there was no reason why the potential juror wouldn’t put himself in the shoes of the victim. Hence, pretext. Moreover, there was a white potential juror of similar age to the defendant, and that person made the jury. Finally, a wife working in a day care center is hardly a reason to suppose a potential juror cannot follow the law correctly, particularly where the potential juror expresses no such lack of ability. These second and third reasons for the strike remind the defense counsel to fully expose the proffered justifications for strike to the light of reason. While on its face, age may seem a valid race-neutral reason to strike a juror, it is not genuine if there are other persons of similar age on the jury, particularly other persons of the same age but different skin color than the minority member sought to be struck.

Likewise, without conceding that having a spouse work in the child care world would render one unable to follow the law, the Court noted that the potential juror’s sister-in-law worked in law enforcement, and the potential juror himself worked for a business that had been victimized by theft. Those are both factors that usually weigh in favor of the state wanting the potential juror to qualify for the jury. That they did not, exposes the state’s third proffered justification -- a spouse working in child care -- as one that could not be taken seriously as a genuine reason for the strike, in the eyes of the Florida Supreme Court.

Based upon both this improper peremptory strike and the improper closing argument discussed later in the opinion, Nowell’s judgment and conviction was reversed and the case was remanded.