SLAPPY'D AROUND

Judge Juan Ramirez, formerly head honcho at the 3rd DCA, has himself a nice little blog.

called Florida Law Update. We were perusing it the other day and stumbled upon our topic for the first post of 2012.

As the new year begins, most trial lawyers (but not us) usually make some sort of misbegotten (read: drunken) resolution to try more cases. Therefore, we proudly present The JBB's first Litigation Skills Seminar of 2012 ( (c) Rumpole 2012 most rights reserved, some just tossed aside cavalierly).

Todays topic: PEREMPTORY CHALLENGES 201.

Melbourne v. State, 679 So.2d 759 (Fla. 1996) is our starting point.

When one side strikes a juror and the other side objects, Melbourne requires the court to conduct a three step analysis. Practice tip #1: If you have made the strike, remind the judge that peremptory challenges are presumed to be exercised in a nondiscriminatory manner (except in some northern counties of Florida where the courthouses proudly fly the confederate flag and the judge swearing you in as a new lawyer requires you to whistle Dixie) and the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Put another way- the burden never shifts to the person who made the strike, although some explanation of the strike is required.

Step one of Melbourne: A request by the party challenging the strike for the party making the strike to state a race neutral reason. Step one has three parts: he party challenging the strike must a) make a timely objection and b) show that the venire member is a member of a distinct racial group and c) ask the court the request that the other party provide a race neutral reason for the strike.

(*pop*) (that sound you just heard was the can of worms being opened.)

Part of our focus today is on the second clause the first step of the Melbourne dance: what is a distinct racial group? Lets talk a look at State v. Alen, 616 So.2d 452 (Fla. 1993).

Alen pre-dates the "distinct racial group" vernacular of Melbourne and calls it a "cognizable class". And what is a CC? Why it's "an identifiable group in the community ...distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately represented by other segments of society."

Longtime readers of the blog know what is coming next: yes, the Florida Supreme Court in Alen did create a definition that by all objective analysis makes "Judges" a "distinct racial group." So go ahead and hum a refrain of "we shall overcome" and then continue reading.

What Alen tried to deal with was the question of who is a member of a distinct racial group? Is Rose Schwartz-Diaz, a jewish woman born and raised in the Bronx and who comes to Miami and marries Javier Diaz, a Hispanic? No. Alen says "Although a person's naive language and surname may be used by a trial judge in determining weather a potential juror can be classified as hispanic, those characteristics are not strictly dispositive."

Or as his honor Milt Hirsch might take the opportunity to say "Would not a Rose by any other name...drink a Materva and eat Arroz Con Pollo if properly romanced by the right latin fella?"

Fast forward to Smith v. State, 59 So.3d 1107 (Fla. 2011). That vexing question of figuring out who is who had not been solved completely. The Florida Supreme Court blamed the 3rd, which originally decided Smith and certified a conflict with Alen: "The Third District's opinion, which does not require that there be a threshold demonstration that the juror was a member of a protected class, has the potential to undermine (civilization and all we hold dear?) the very purpose for the protections required to prevent invidious discrimination in jury..."

selection.

So Smith instructs Judges to turn to potential jurors and say "Madam, are you now or have you ever been Hispanic?"

We end our lesson with Judge Colodny and Garcia v. State. When you don't follow Melbourne precisely, things go bad fast. The actual decision in Garcia turns on the court's failure to follow the third step of Melbourne, but for our purposes the failure to follow the first two steps are illustrative of what needs to be done.

In Garcia, the defense struck a juror . The State objected: "We would ask for a race neutral reason" and without the state showing that the juror was a member of a distinct racial group, (step 1-B) and without the defense waiting for the court to ask for an explanation, the defense immediately proffered a race neutral reason: prior jury service, thereby waiving any appellate challenge to the court's failure to dance the Melbourne's first two steps properly.

The second step of Melbourne requires the court to ask the proponent of the strike to provide a race neutral reasons. Things were hopping during voice dire that day in Judge Colodny's Courtroom, and as the record makes clear all the state did for the first step was make a timely objection. From that point matters proceed swiftly and not according to Melbourne, which clearly states as follows:

Step one: a) Object cha cha cha...b) show the potential juror is a member of a distinct racial group cha cha cha...c) ask the court to ask opposing counsel to proffer a race neutral reason cha cha cha...

and then...dip and twirl and spin and twist and proceed to step two:

the proponent of the strike gives a race neutral reason cha cha cha like

"He's a Cub fan" or "he once ate a hot dog in browierd" or "he stays through the second half at Heat games." etc.

You see, to be a good trial lawyer, you need some rhythm.

CLE crédit will be applied for. Stay tuned.

See You In Court.