City of Miami v. Cornett, 81-85

• Decision Date: 29 January 1985
• Docket Number: No. 81-85,81-85
• Citation: 10 Fla. L. Weekly 283,463 So.2d 399
• Parties: 10 Fla. L. Weekly 283 CITY OF MIAMI, Officer J. O'Neil and Officer Jewitt, Appellants, v. Charles CORNETT, a/k/a Willie Williams, Appellee.
• Court: Florida District Court of Appeals

Page 399

463 So.2d 399

10 Fla. L. Weekly 283

CITY OF MIAMI, Officer J. O'Neil and Officer Jewitt, Appellants, v. Charles CORNETT, a/k/a Willie Williams, Appellee.

No. 81-85.

District Court of Appeal of Florida,

Third District.

Jan. 29, 1985.

Rehearing Denied March 5, 1985.

Lucia Allen Dougherty, City Atty., Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy and Gregor M. Gaebe, Miami, for appellants.

Steel, Hector & Davis, Miami, and Talbot D'Alemberte, Tallahassee, as court-appointed amicus curiae, for appellee.

Janet Reno, State Atty., and Ira N. Loewy, Asst. State Atty., for State Attorney as amicus curiae.

James C. Burke, Miami, for Dade County Black Lawyers' Association, Inc., as amicus curiae.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The sole question on this appeal is whether the exercise of peremptory challenges in civil proceedings is subject to the rule announced in State v. Neil, 457 So.2d 481 (Fla.1984), a criminal case, that both parties may challenge the alleged improper use of peremptory challenges to exclude from jury service prospective jurors solely on the basis of race. ¹ We conclude that the principle upon which Neil is founded--that parties have a right to an impartial jury--applies with equal force to a civil jury trial. We thus unhesitatingly affirm the order under review.

Charles Cornett, a black man, instituted suit against the City of Miami and two of its police officers for damages sustained when he was shot in the back while being apprehended by the officers. This alleged use of excessive force left Cornett totally paralyzed from the waist down. An all-white jury returned a verdict for the defendants.

The trial judge granted Cornett a new trial, setting forth his reasons in a written order from which this appeal is taken. The order states in pertinent part:

"This trial commenced shortly after verdicts had been returned in two other much publicized cases. In the latter of the two cases, the county's school superintendent, a black, was indicted, suspended from office, then convicted of grand theft. The Superintendent was tried before an all-white jury after a number of blacks had been challenged peremptorily. In the earlier case, an all-white jury acquitted several white officers of murder and manslaughter charges in the beating death of a black insurance agent--the infamous 'McDuffie Case'. All prospective black jurors had been challenged, some for cause, most peremptorily. Moments following the verdict in that case there was a civil disturbance in the community resulting in millions of dollars of property damage and several deaths. Those killed included whites and blacks, and in a few instances the motives were clearly racial. Judicial notice is taken of these background circumstances as they shed light on community tensions in general at the time of this trial and the probable effect on the conduct of this trial. Some white prospective jurors admitted that they couldn't be fair. At least one admitted to being fearful and asked to be excused.

"At a pre-trial conference the parties were limited to four challenges each. Afterwards the venire was seated with four blacks among their number. Counsel for the plaintiff then approached the bench to voice a premature objection to the defendant's exercise of his peremptory challenges to remove black members of the venire. The objection was raised again during the jury selection process and again after the last challenge had been exercised. As was predicted by plaintiff, defense counsel exercised each of its four peremptory challenges against blacks thereby insuring an all-white jury. The objections were eventually overruled without a hearing.

"As one ground in support of the Motion plaintiff contends essentially that because of an improper exercise of the peremptory challenge by the defendant he was deprived of a fair and impartial trial by a jury which included members of his ethnic group....

....

"The misuse of the peremptory challenge to eliminate identifiable groups contributes to an undermining of the integrity of the justice system. Unquestionably there are cases where the outcome of the trial has been determined by the composition of the jury--with results contrary to the weight of the evidence. The existence of such an unimpaired ability to manipulate the outcome of a trial is a legitimate reason for doubt as to fairness. It then becomes the responsibility of the court to minimize that potential for abuse by imposing some reasonable limitations on the exercise of the challenge. This is essential if the community is to have confidence in the jury trial process. The facts, the issues raised, and the timing of the trial are circumstances which in combination made this case an extremely sensitive one. The appeal to biases were more overt than subtle, though not necessarily the doings of counsel."

....

Other portions of the order indicate that the trial judge, apparently of the belief at the time of trial that Swain v. Alabama ² proscribed inquiry into whether the defendants' peremptory challenges were being exercised solely on the basis of race, ³ became persuaded after the trial that the constraints of Swain, being shed elsewhere, ⁴ would some day be shed in Florida. The Florida Supreme Court's decision in State v. Neil proved him to be correct.

In Neil, the court, finding that further adherence to the test established in Swain v. Alabama would impede rather than further the right to a fair and impartial trial guaranteed by the Florida Constitution, held that the test to be thereafter applied in Florida courts was this:

"Instead of Swain, trial courts should apply the following test. The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective jurors' race. The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool."

457 So.2d at 486-87 (footnotes omitted).

We now turn to the question of whether Neil applies to civil cases. Neil focused on Article I, Section 16 of the Florida Constitution, which...