Florida Appellate Court Overturns Conviction Because The State Improperly Struck a Male Juror Without a Sufficient Gender-Neutral Reason
The case of Johnson v. State, 35 Fla. L. Weekly D321a (Fla. 2d DCA February 10, 2010) resulted in the reversal of a conviction of aggravated battery with a deadly weapon because the state improperly exercised a peremptory challenge to exclude a male juror.
During the jury selection, the state struck the male juror who would have taken the last seat on the jury. The remaining jurors were all female.
The defense counsel noted that the jury would consist entirely of females if the court upheld the strike and demanded a gender-neutral reason for the state's exercising its peremptory challenge.
The trial court then asked the prosecutor for a gender-neutral reason and the prosecutor replied that he wanted two of the previous male jurors whom the defense had struck and then offered an explanation that he "[D]idn't get a good feel for" the juror and later added, "[I] had a bad feeling, so I struck him."
The trial court stated that since the victim and the defendant were male, it did not see any advantage to the state from seating an all female jury. The trial court reviewed the strikes by each side and found that the defense had struck two of the male jurors and the state had struck the other two, including the last male juror that was the subject matter of the objection. The court next considered the number of female jurors that were subject to peremptory challenges by the state and the defense. The court stated, "So just by looking at the math. . . I really don't think anyone is striking anyone because of gender."
The Second District Court of Appeal in reversing the conviction recognized that gender is a valid basis for an objection to the exercise of a peremptory strike. Welch v. State, 992 So. 2d 206, 211 (Fla. 2008). The court went on to explain that when a party objects to the use of a peremptory strike on gender grounds, the party must allege that the juror belongs to a specific gender group and requests a gender-neutral reason to support the strike. If the objecting party complies with these requirements, the trial court must then ask the striking party to explain the reason for the strike. At that point, the burden shifts to the striking party to establish a gender-neutral explanation. The trial court should sustain the strike if the explanation given by the striking party is gender-neutral and the court believes that it is not a pretext.
The defendant met the burden by alleging that the juror at issue belonged to a specific gender group and requested a gender-neutral reason to support the strike. The explanation by the prosecution in the case as to the strike, seemed to have disturbed the trial court but it sustained the strike based upon the composition of the jury that had been seated. The District Court of Appeal noted that a party's unsupported "bad feeling" about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender. Daniel v. State, 697 So. 2d 959, 961 (Fla. 2d DCA 1997); Ruger v. State, 941 So. 2d 1182, 1184 (Fla. 4th DCA 2006).
The appellate court noted that it is improper for the trial court to consider the overall make-up of the jurors that had been seated in determining the sufficiency of a gender-neutral reason for a peremptory strike.
The court then addressed the issue of how a party sufficiently preserves this issue for appeal. It stated that generally a party does not preserve an objection to the use of peremptory strike if it affirmatively accepts the jury immediately prior to its being sworn without reservation of its earlier objection. Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). The acceptance of the jury without renewal of the objection leads to a reasonable assumption that the earlier objection is abandoned.
This case represents the current state of Florida law on the use of peremptory challenges. Obviously a juror must fall into one of the two genders and therefore, a party may question the basis for the challenge of any juror and thereby require the state to have a gender-neutral basis. The composition of the jury, as well as the fact that both parties have exercised peremptory challenges against both genders, does not alleviate the state from a gender-neutral basis for exercising its peremptory challenge.
This may prove helpful to the defense as long as the proper procedure to preserve error for appeal is followed.