Challenging Discriminatory Practices

We have challenged Florida’s habitual offender statute’s violation of Florida and federal equal protection guarantees based on the prosecutor’s racially discriminatory application. We studied many thousands of trial files and employed experts in logistic regression analysis to determine whether race was a factor in a prosecutor’s decision to seek a habitualized sentence. Although experts concluded that race was a significant factor in prosecutorial discretion to seek enhanced sentencing generally, this challenge failed due to the absence of proof that a prosecutor intended to employ race as a sentencing factor in any individual case. Miller v. State, 651 So. 2d 138 (Fla. 3d DCA), review denied, 659 So. 2d 1087 (1995). 

We successfully argued before the Florida Supreme Court that Hispanics are a cognizable ethnic group for purposes of precluding peremptory challenges solely on the basis of their ethnicity. State v. Alen, 616 So. 2d 452 (Fla. 1993). We have also successfully argued that the prosecutor’s striking of a Haitian-American juror based on her proficiency in the Creole language was a surrogate for racial and ethnic discrimination. Despio v. State, 895 So. 2d 1124 (Fla. 3d DCA 2005).

In Dorsey v. State, 868 So. 2d 1192 (Fla. 2003), we successfully argued that when a party asserts that a prospective juror’s nonverbal behavior (a showing of disinterest, for example) is a reason for its peremptory strike, and the existence of the nonverbal behavior is disputed by opposing counsel, the behavior must be observed by the trial court or otherwise supported by the record for the reason to be considered neutral and genuine. The judge may not simply rely upon counsel’s assertion because he is an officer of the court.

We further successfully argued, in Turnbull v. State, 959 So. 2d 275 (Fla. 3d DCA 2006), that the state is not allowed to strike black jurors based upon their responses to the state’s questions concerning racial profiling, where racial profiling is neither brought up by the jurors nor relevant to a defense. The mere term “racial profiling” can engender a visceral response from black jurors, and the state may not seize upon that response as a race neutral or genuine justification for a peremptory strike.

We successfully argued before the Florida Supreme Court that Hispanics are a cognizable ethnic group for purposes of precluding peremptory challenges solely on the basis of their ethnicity. State v. Alen, 616 So. 2d 452 (Fla. 1993). We have also successfully argued that the prosecutor’s striking of a Haitian-American juror based on her proficiency in the Creole language was a surrogate for racial and ethnic discrimination. Despio v. State, 895 So. 2d 1124 (Fla. 3d DCA 2005).

In Dorsey v. State, 868 So. 2d 1192 (Fla. 2003), we successfully argued that when a party asserts that a prospective juror’s nonverbal behavior (a showing of disinterest, for example) is a reason for its peremptory strike, and the existence of the nonverbal behavior is disputed by opposing counsel, the behavior must be observed by the trial court or otherwise supported by the record for the reason to be considered neutral and genuine. The judge may not simply rely upon counsel’s assertion because he is an officer of the court.

We further successfully argued, in Turnbull v. State, 959 So. 2d 275 (Fla. 3d DCA 2006), that the state is not allowed to strike black jurors based upon their responses to the state’s questions concerning racial profiling, where racial profiling is neither brought up by the jurors nor relevant to a defense. The mere term “racial profiling” can engender a visceral response from black jurors, and the state may not seize upon that response as a race neutral or genuine justification for a peremptory strike.

Finally, in Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006) and Pickett v. State, 922 So. 2d 987 (Fla. 3d DCA 2005), we successfully challenged the trial court’s failure to conduct an inquiry pursuant to State v. Neil, 457 So. 2d 481 (Fla. 1984) when the opponent of a peremptory strike objects that the strike of a cognizable minority was motivated by discrimination. These cases are now before the Florida Supreme Court on certified questions regarding whether the simple inquiry rule, which requires the trial court to request a neutral reason from the striking party upon proper objection, should revert back to the cumbersome prima facie standard for peremptory jury challenges.