State v. Whitby
| Decision Date | 07 February 2008 |
| Docket Number | No. SC06-420.,SC06-420. |
| Citation | 975 So.2d 1124 |
| Parties | STATE of Florida, Petitioner, v. Edgar Sylvester WHITBY, Respondent. |
| Court | Florida Supreme Court |
Rodolfo Sorondo, Jr. of Holland and Knight, LLP, Miami, FL, and Arthur I. Jacobs, Fernandina Beach, FL, on behalf of the Florida Prosecuting Attorneys Association; and Benjamin S. Waxman of Robbins, Tunkey, Ross, et al., Miami, FL, Elliot H. Scherker of Greenberg Traurig, P.A., Miami, FL, Karen M. Gottlieb, Coconut Grove, FL, and Roy D. Wasson of Wasson and Associates, Miami, FL, on behalf of Florida Justice Association, American Civil Liberties Union of Florida, Caribbean Bar Association, Asian Pacific American Bar Association of South Florida, Cuban American Bar Association, Florida Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, Miami Chapter, Florida Association of Women Lawyers, Miami-Dade Chapter, Gwen Cherry/Black Women Lawyers Association, Haitian Lawyers Association, National Association for the Advancement of Colored People, and Wilkie D. Ferguson, Jr., Bar Association, As Amici Curiae.
We initially accepted review of this case, Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006), on the basis of the district court's certification of a question of great public importance. Art. V, § 3(b)(4), Fla. Const. However, upon reflection and further consideration we have determined to deny review and discharge jurisdiction.
It is so ordered.
I concur in the discharge because the majority of this Court has determined that there is no reason to recede from our precedent of Melbourne v. State, 679 So.2d 759 (Fla.1996). In light of Justice Cantero's dissent as well as the certified question presented by the Third District opinion in Whitby v. State, 933 So.2d 557, 564 (Fla. 3d DCA 2006), I write to explain why our continued adherence to Melbourne is sound.
Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices. State v. Slappy, 522 So.2d 18, 20-21 (Fla.1988). Indeed, the United States Supreme Court has repeatedly emphasized that it is for the states to formulate appropriate procedures for implementing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. See Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 631, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 99, 106 S.Ct. 1712.
In fact, before the United States Supreme Court's decision in Batson, this Court in State v. Neil, 457 So.2d 481, 486-87 (Fla.1984), addressed the issue of racial bias in the use of peremptory challenges. We subsequently sought to refine the Neil test in Slappy, ever mindful "that the spirit and intent of Neil was not to obscure the issue in procedural rules governing the shifting burdens of proof, but to provide broad leeway in allowing parties to make a prima facie showing that a `likelihood' of discrimination exists." Slappy, 522 So.2d at 21-22.1
In State v. Johans, 613 So.2d 1319 (Fla. 1993), this Court again modified the Neil test due to the difficulty trial courts were having in applying the procedure that case established. In Johans, the Court prospectively held that the only requirement to trigger a mandatory Neil inquiry is a timely objection and statement that the peremptory challenge is being used in a discriminatory manner. Id. at 1322. Johans basically receded from step one as prescribed in Neil, removing the requirement that the objecting party show that there was a strong likelihood the challenge was based on the juror's race. Id. This Court also held in Johans that "the proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial." Id.
In Melbourne, the Court noted that the decision in Johans was intended to clarify the procedure to be followed in dealing with peremptory challenges. 679 So.2d at 763. The Court explained that the Johans rule — that a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner — was a "refinement" of the process intended to guide trial courts. Id. at 763 (citing Johans, 613 So.2d at 1321). Recognizing that Florida courts continued to have difficulty in applying Neil, especially after Johans, the Court in Melbourne again clarified and further simplified the process to be followed, focusing on step one:
A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).
679 So.2d at 764 (footnotes omitted).
Since Melbourne, we have repeatedly reaffirmed the viability and value of the simplified procedure set forth in that decision. Moreover, in Dorsey v. State, 868 So.2d 1192 (Fla.2003), despite disagreement over steps two and three, the Court expressed no disagreement with the simplified first step. Id. at 1199-1201, 1203-05. As Justice Bell so eloquently stated in arguing that Dorsey departed from Melbourne:
In Melbourne v. State, 679 So.2d 759 (Fla.1996), a unanimous opinion authored by Justice Leander Shaw, a judicious balance was finally reached in the effort to eliminate racial discrimination, yet maintain the full and free use of peremptory challenges. The procedural steps and principles outlined in Melbourne have worked remarkably well.
Id. at 1203 (Bell, J., dissenting) (footnote omitted).
Recently, in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), the United States Supreme Court confronted the issue of peremptory challenges yet again. The Court addressed "whether Batson permits California to require at step one that `the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias.'" Id. at 168, 125 S.Ct. 2410 (quoting People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270, 280 (2003)). The Court in Johnson stated:
We did not intend the first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.
545 U.S. at 170, 125 S.Ct. 2410. Additionally, the Court noted that the Batson inquiry was designed to produce actual answers to suspicions that peremptory challenges are racially motivated, stating that "[t]he inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question." Id. at 172, 125 S.Ct. 2410. Although Johnson is not directly applicable to Florida law because Florida law requires much less of the objecting party to mandate a Neil inquiry, it demonstrates the confusion that Florida law avoids by requiring race-neutral explanations more often than federal law.
Judge Rothenberg, writing for the majority in Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006), posits at least two reasons for modifying Melbourne: (1) concerns about gamesmanship that could occur in objecting to peremptory challenges, and (2) needless reversals that occur for technical reasons.
As to the Third District's first reason for receding from Melbourne, a concern about "gamesmanship," I am uncertain that requiring more to be said in the first step will eliminate the perceived potential for abuse.2 Of course, it would be a definite concern if parties objected to each juror that the other side seeks to strike peremptorily but the remedy is not to recede from Melbourne. We must rely on attorneys' good faith obligations as officers of the court to refrain from making frivolous, dilatory objections.3 Moreover, since the second step of Melbourne requires only a race-neutral reason, the inquiry returns in the third phase to the proponent of the strike to prove a discriminatory purpose. It is the third step that is the critical one. And the thrust of our case law is to encourage an inquiry whenever a suspect peremptory challenge is called to a trial court's attention because the overarching value is to eliminate invidious discrimination in jury selection.
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Welch v. State
... ... Id. at 1199-1201, 1203-05 ... The dissent's argument for receding from Melbourne was recently addressed by Justice Pariente in State v. Whitby, 975 So.2d 1124 (Fla.2008) (Pariente, J., concurring). We agree with that analysis. There is no need to address it further except to specifically quote from the conclusion of Justice Pariente's concurrence in Whitby: ... 992 So.2d 213 ... As the amici [in Whitby] state, " ... ...
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The trial (conduct of trial, jury instructions, verdict)
...to show that the strike was the result of a pattern of discrimination. Welch v. State, 992 So. 2d 206 (Fla. 2008) (See State v. Whitby , 975 So. 2d 1124 (Fla. 2008) (Parienti, J., concurring and Cantero, J., dissenting from order denying review) for extensive discussion of the Melbourne pro......