The word and phrase, ugly in every context, surfaced in this case
State v. Johnson.
Let's think about the philosophy behind not preserved. There was error. It was in the record. In a criminal case. Where someone is in prison. And due to no fault of the defendant, s/he does not get relief because their lawyer was surreptitiously on snap-chat when the error occurred and did not object. Now the appellate mavens will mention fundamental error. But here is the layman's explanation of fundamental error. If the error did not result in the accidental release of a Virus that crippled the world economy, then it did not reach down into the heart of the matter and is not fundamental. In other words, it is a standard that is rarely met.
In the context of Johnson, here is what we are left with. The prosecution can make every preemptory challenge based on race. They can be as bigoted as George Wallace standing in the doorway of the University of Alabama stopping the admission of American teenagers based on their race. And if the defense does not object, no harm/no foul/not preserved.
There will be none of the moral high ground of the Florida Supreme Court firmly stating "Bigotry and racism have no place in the American Justice System." No sireee. None of that folderol for our State and our courts. Our Judges, umpires all, will simply NOT call balls and strikes unless the batter complains. Our judges will sit quietly by as a prosecutor wearing a dixie-flag tie and perhaps a white hood strikes juror after juror based on their race, and will nary say a word unless someone says something first along the lines of "ummm..do they get to strike every black person in the venire?"
And even then, that is not enough. There must be a magic incantation of precise words, uttered precisely, at the exact moment. Anything less and Klan Jury Consultants can work their magic for the prosecution who need not worry about an appellate court stepping in. See State v. Johnson ("To preserve the error properly, the lawyer must stand on one leg, juggle three knives, and recite the Greek Alphabet backwards. Anything less will not serve to adequately alert the trial judge that the defense believes the prosecution's use of a preemptory challenge may have been improper.") Id. at 666.
And to think, there used to be Judges like Frank Minis Johnson (who sat in Alabama and helped desegregate the South) in this country. No more.
Read it and weep.
Under Florida law, the opponent of a peremptory strike cannot simply sit silent—failing to respond to a proffered facially race-neutral reason and failing to object as to why the trial court should not accept that explanation—yet challenge
that reason as a pretext for discrimination and the trial court’s ruling as insufficient for the first time on appeal. See Floyd, 569 So. 2d at 1230. To hold otherwise would not only be inconsistent with the general law of preservation, it would also improperly relieve the opponent of the strike of the obligation to prove purposeful racial discrimination, in disregard of the presumption that peremptory strikes are
nondiscriminatory. See Melbourne, 679 So. 2d at 764-65. Accordingly, we hold that the party opposing a peremptory strike must make a specific objection to the
proponent’s proffered race-neutral reason for the strike, if contested, to preserve the claim that the trial court erred in concluding that the proffered reason was genuine.
There are judges in Iran and North Korea shaking their heads at this decision. But George Wallace, in whatever ring of Hell he resides, is smiling.