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Friday, May 22, 2020

THE N WORD

The N word- which in our context today is "Not" preserved,  is one of Florida Appellate Judges favourite phrases. 
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. 

12 comments:

Anonymous said...

The Supreme Court of Florida, as currently constituted, is an embarrassment to the state. In criminal cases, it no longer will make sense to go to the Supremes at all, and I suspect that Justice Lawson is the driver of the new ethic. He is, without question, the brightest of the right-wingers. It must be depressing for Justice Labarga to sit with those people.

Anonymous said...

I agree with the decision. Perhaps the defense attorney did not want the black jurors for a reason. And, there is always a Rule 3 against the attorney for his unexplained failure to object .

Anonymous said...

I think what is bs is that the court cut off the explanation and ruled before the defense had an opportunity to call out the bullshit of the excuse. Now the Court is saying that if a overbearing judge doesn't do her job, and rules before you can make an argument, you better piss the judge off and make the argument anyhow. That is the f'd up part of the opinion.

Anonymous said...

Don't be too tough on Wallace. He was a racist but unlike many other Southern Democrats of the era (and there were many, including Al Gore's father and William Fullbright, he of the famed "scholar" award and Bill Clinton's mentor), he later apologized and made amends with the very people he excoriated and then won a solid majority of the black vote in Alabama in his gubernatorial runs. His presidential campaigns were aimed at the "anarchists, agitators , long hairs and pointy headed professors" that explains a lot of his appeal to the working class voters up North. There is a documentary on Wallace on Youtube that features an interview with Tom Fiedler, former editor of the Herald, that kind of puts him in a proper perspective. Watch it.

Anonymous said...

It means make your record and get to the point quickly - and if the Judge gets cranky so be it - you do your job.

Anonymous said...

Yup. And remember, Frank Johnson was a Republican. And speaking of racists, if you go to DC, the “greatest deliberative body” in the world has dedicated its office building to Richard Russell (D. GA) one of the most ardent racists ever to occupy elective office in the US. That would be the equivalent of naming a sexual harassment law after Ted Kennedy. Go figure.

Anonymous said...

Please tell me the rumor that you can buy "Trump Cigars" treated with hydroxychloroquine is not true.

Anonymous said...

Favorite words and phrases for appellate courts:

"not preserved"
"did not timely object"
"harmless error"
"affirmed"

Anonymous said...

The defense attorney did object at trial. He objected to the State's preemptory of a black juror and asked for a race neutral objection. The trial court cut off the State mid-sentence after she said something about the juror believing in CSI evidence, overruled the defense attorney's objection. The defense attorney renewed his objection prior to the Court empaneling the jury, and did not accept the jury. The defense attorney objected twice, but the Florida Supreme Court stated that the defense attorney should have cut-off the Court and made an additional objection regarding the "genuineness" of the State's proferred reason of not wanting the black juror because he believes in CSI evidence. It is a very technical, very fact intensive opinion.

The 4th DCA opinion in this case goes more into detail as far as the trial court cutting off the parties (both the State and Defense). The 4th DCA reversed and remanded saying the trial court did not give a meaningful opportunity for the defense attorney to object to "genuineness", but the Attorney General certified conflict to the Florida Supreme Court because at the time there was not any uniformity amount the 5 districts as to whether or not the defense attorney had a duty to make an additional objection on the record as to "genuineness".

This is not an opinion about fundamental error per se because the Defense Attorney did object on the record (twice), and to complicate things the trial court cut off both the parties during voir dire with this specific objection. This opinion is both legally and morally unfair, and the Defendant in this case (Johnson) suffers the consequences.

Fake Forrmer Justice Robert Luck said...

This is as a blistering a critique of the Florida Supreme Court as I have seen in some time. What in the world is going on there?

Anonymous said...

Elections have consequences. Remember that for future elections.

Anonymous said...

Even if you object, the current 3rd DCA will find a way around it.

Quote from Judge Kevin Emas: It was a mere slip of the tongue... when the witness commented on the Defendant refusing to answer a question.