PBCBA BAR BULLETINS pbcba_bulletin_Nov. 2019 | Page 18

PERSONAL INJURY CORNER
RACIALLY NEUTRAL PEREMPTORY CHALLENGES
TED BABBITT
The seminal case on challenging a peremptory
challenge which is allegedly race based is
State v. Neil, 457 So. 2d 481 (Fla. 1984). In that
case at 486 – 87, our Supreme Court held
• 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 [this is step 1]. 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 [step
2]. The reasons given in response to the
court’s inquiry need not be equivalent to
those for a challenge for cause…. [The court
must then determine whether] the party
has actually been challenging prospective
jurors solely on the basis of race…. [step 3].
In State v. Johans, 613 So. 2d 1319 (Fla. 1993),
the Court clarified that a Neil inquiry was
required whenever an objection was raised
that a peremptory challenge was being used in
a racial discriminatory manner.
In State v. Slappy, 522 So. 2d 18 (Fla. 1988), the
Court held that the party striking the juror must
demonstrate “a clear and reasonably specific
racially neutral explanation of legitimate
reasons for the strike and that the Judge must
decide whether the proffered reasons for the
strike are “first, neutral and reasonable and,
second, not a pretext.” Slappy at 22.
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 90 L. Ed. 2nd 69 (1986), the United States
Supreme Court held that once the opponent of
a peremptory challenge has made out a prima
facia case of racial discrimination, the burden
shifts to the proponent of the peremptory
challenge to come forward with a race neutral
explanation and once that race neutral
explanation is tendered the trial court must
then decide whether the opponent of the strike
has proved purposeful racial discrimination.
In Hernandez v. New York, 500 U.S. 352, 111 S.
Ct. 1859, 764 L. Ed. 2nd 395 (1991), the Supreme
Court held that unless a discriminatory intent
is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.
The Florida Supreme Court in Melbourne v.
State, 679 So. 2d 759 (Fla. 1996) synopsized the
state of the law at Page 764 as follows:
• 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). The court’s focus in
step 3 is not on the reasonableness of the
explanation but rather its genuineness.
Throughout this process, the burden of
persuasion never leaves the opponent
of the strike to prove purposeful racial
discrimination.
In the recent case of Beal v. State, 44 Fla. L.
Weekly D1906 (3rd DCA July 24, 2019), the issue
on appeal was whether the State’s peremptory
challenge of a juror who was a white male juror
satisfied the requirement of the juror being in
a protected class. The trial court determined
that a white male was not part of a protected
class and the appellate court reversed citing
the recent cases of J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed. 2d 89 (1994);
and Abshire v. State, 642 So. 2d 542 (Fla. 1994).
The Court found that a white male is part of
a distinct racial group such that such a juror
could not be excluded on the basis of gender.
PBCBA BAR BULLETIN
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All of these criminal cases apply equally to
civil matters. In light of the finding in Beal,
it is hard to understand who is not included
within a distinct racial group so that any time
that issue is raised the procedure set forth in
Melbourne, et al., must be followed.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE OF
CHARGE, BY CALLING [phone].
In Memoriam
Adam Stephen Doner
1958 - 2019