          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

 HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE
                             MOYER,
                            Appellant,

                                     v.

              R.J. REYNOLDS TOBACCO COMPANY, et al.,
                             Appellees.

                              No. 4D15-759

                            [January 10, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case Nos. 08-80000 (19)
and 08-CV-026337 (19).

  Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale,
and Bard D. Rockenbach and Adam Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, for appellant.

   Jason T. Burnette of Jones Day, Atlanta, GA, and Karen H. Curtis of
Clarke Silverglate, P.A., Miami, for appellees.

             On Motion for Rehearing and Rehearing En Banc

MAY, J.

   We deny the motion for rehearing and rehearing en banc, but withdraw
our prior opinion and substitute the following in its place.

   “The right to ask potential jurors questions during voir dire about bias
remains one of the most important, and often overlooked, protections
against jury discrimination.”       Tania Tetlow, Granting Prosecutors
Constitutional Rights to Combat Discrimination, 14 U. Pa. J. Const. L.
1117, 1143 (2012). That protection is challenged in this appeal from an
order granting a new trial.

    The plaintiff argues the trial court erred in granting a new trial based
on the court’s failure to allow the defendants to question several members
of the jury venire before excusing them for bias. She also asks us to limit
any new trial to the issue of entitlement to punitive damages in the event
that we affirm the order granting a new trial. We disagree on both points
and affirm.

   At the start of jury selection, the court gave the venire an abbreviated
statement of the case informing them that the plaintiff claimed the
decedent’s death was caused by smoking cigarettes, and that the tobacco
defendants denied the claim. During voir dire, plaintiff’s counsel asked:

      And so we all come in with certain feelings about cigarettes,
      certain feelings about smokers; and what I would like to know
      is, without hearing anything more than that, is there anybody
      here -- and I want to go in groups again -- but by a show of
      hands, anybody who thinks that a person who smokes
      cigarettes for a long period of time, say 40 or 50 years, gets a
      disease and ultimately dies from that disease, is there
      anybody that thinks that their family should not be allowed to
      bring a lawsuit against the tobacco companies?

    Several jurors raised their hands. Plaintiff’s counsel then asked each
juror individually if their belief was strongly held, and if they had a
reasonable doubt whether they could set that feeling aside. Before the
trial court recessed for lunch, defense counsel asked the court to
“admonish the panel if they have a strongly held view about some of these
issues, to raise their hand so that we can address it in private, as opposed
to sharing it with the whole group[.]” The court took the matter under
advisement, but later overruled the objection.

   When jury selection resumed, and before defense counsel had an
opportunity to question the jurors, the following transpired.

      The Court: Counsel, I don’t know where we go from here, to
      be candid with you. The state of the law in Florida as I
      understand it, and you can correct me, I don’t see how you
      rehabilitate certain jurors.

      And I know we’re trying to get a panel. We have a big panel
      here. I think, and I know the question was objected to. But I
      think it’s a fairly innocuous question when the juror is asked
      if they believe a smoker or a family of a deceased smoker has
      a right to sue, and it’s followed up by is that a strongly held
      belief, and is that something you can set aside.

      I don’t see how you can rehabilitate those jurors. The flip side

                                     2
of the coin would be if the defense comes up and their
question, you know, is that same type of question; how many
of you believe that if a tobacco company is involved selling
cigarettes and somebody has a tobacco-related disease, you
know, alleged from smoking, that it’s just a question of how
much you would ask for damages.

I think the other side of the coin is fair game as well, and they
would be excused automatically. I just don’t know how you
can rehabilitate jurors who answer that question. And I know
the defense hasn’t even asked one question of the jury. But I
don’t know how you -- assuming that you ask them if there’s
a reasonable doubt in the mind of the Court, they’re going to
be excused. I don’t see how you can rehabilitate those jurors.
It would be my thought just to excuse them.

Defense Counsel: Well, Your Honor, first off, I think you’re
right about your understanding of rehabilitation and the
availability of it under Florida law.

Our position is pretty simple. We just want a shot to examine
the whole panel. It’s not that we think Mr. Hammer may have
succeeded in making a cause record for this morning could be
rehabilitated. But it’s just the interplay of all the different
individuals is something that helps our examination as a
whole.

I think you’re right, Your Honor, and there were certainly
some people this morning who articulated views that cannot
be rehabilitated. Our preference is to leave the whole panel
intact so that we get a chance at least to talk to the whole
venire, with the acknowledgment that obviously some people
have expressed views already for which a record has been
made. They probably do have a bias that would result in
exclusion.

Plaintiff’s Counsel: If it please the Court, Your Honor, I
understand defense counsel’s request, and I don’t disagree
with his requesting the right to discuss this with the panel as
a whole. I understand that. I’m only concerned with the
Court’s interest in getting the jury.

As far as time is concerned, and the likelihood of having
enough jurors in this panel, if we can’t get a jury out of this

                               3
panel, is there any way where we can get another handful of
jurors to back this group up?

Because by my counts, we’re treading on somewhere under
50 remaining jurors right now, based on those that
volunteered in a way that is likely to be subject to cause.

And then with 18 challenges, assuming that some more folks
will reveal themselves, I’m wondering if, Your Honor, should
we be planning on getting more jurors? I don’t know what
Your Honor’s pleasure is in that regard.

....

The Court: So anyway: So it’s not -- I haven’t tried one of
these in a while, but I guess it’s not unexpected that you’re
going to have issues with the selection process. So, you know,
we’ll do as much as we can. I’m not trying to make you speed
up, Mr. Hammer, on your questioning, but my thought also is
that I can’t get this courtroom every day. And, you know, if
we come back, and having jurors questioned in my courtroom,
I mean, we’re maxed out at about 46 to 50 jurors, depending
how many we put in there.

Plaintiff’s Counsel: Judge, what I was thinking, because of
that -- and I agree with the Court. Under Florida law, there’s
quite a few jurors that indicated they couldn’t be fair.
Couldn’t set that aside.

I think out of abundance of caution, you ought to excuse them
for cause. Because it will move things along a lot faster.
Because they won’t be answering questions, won’t be wasting
time talking to them. Because we know they’re going to be
excused anyway.

So I would request this Court to strike those individuals for
cause that we feel have risen to that level, and I counted
roughly about 30 people. And I would be happy to go through
those real quick, and I think it’s fair to strike those. Then that
way I think I can move a lot quicker through the remaining
panel. Because otherwise I’m going to be spending time
talking to all them.

The Court: Why?

                                4
Plaintiff’s Counsel: Because inevitably they’re going to
answer a question. And I can’t just ignore them. And they’re
going to add to the conversation. And, you know, defense has
already raised the point that we don’t want to poison the panel
as a whole. I don’t want to risk that, because we are close to
getting rid of an awful lot of people.

So rather than take the entire panel --

The Court: How much more questioning do you have? I know
you only asked one -- very few -- the questioning so far has
been very, very limited.

Plaintiff’s Counsel: Judge, I’ve gone a little over an hour. I
understand that. And I asked a series of questions. I
anticipate having a couple more hours to go. But, you know,
I think if we eliminate some of the people, it’s going to
streamline my voir dire quite a bit.

Defense Counsel: Your Honor, just one observation. I don’t
think there’s any way we finish voir dire today.

The Court: I know there’s not.

Defense Counsel: In fact, I would be surprised if Mr. Hammer
is able to finish in the time we have this afternoon.

The Court: That’s my point. Let’s say Mr. Hammer is not --
that’s what I’m concerned about -- he’s not able to finish
today. It’s not going to come to your end. And I don’t really
see why we should be keeping all these people around.

Defense Counsel: I agree, Your Honor. Again, our position
is we think that the defendants are entitled to examine the
venire as a whole. They’re part of this. They’re part of this
group. Sometimes they might chime in. It’s very easy to say
“Thank you, juror number whatever, we’ve heard from you. I
don’t mean to be rude, but we need to move on.”

So it’s not that we’re going to try to spend time with them, but
we want to keep the whole group together.

The other thing is, if we come back and this group sees that

                               5
30 people are gone, that’s a pretty good invitation of people to
just start saying things to go. We don’t have a good feel for it.

I think what we really want to do here is get through Mr.
Hammer’s stuff. I can go, whenever he finishes, I will be
shorter than him. Mr. Woods, Ms. Ruiz, I think will be even
shorter than I am. Then we will go through and do all the
cause challenges.

I think we have a still good shot if we end up with 25, 30
remaining, and we can pick a jury. But we should know where
we stand with this panel sometime Monday morning or by
lunch on Monday. And if we need to bring in more jurors, we
can do so at that time.

But I’m worried -- so, one, I think we have the right to examine
the panel as a whole. But, two, if we take 30 people out after
one hour of questioning, we can very well encourage people to
mass exodus right out of here and not have anybody left.

So just for the record, our position would be that we keep
going, we get as much as we can do this afternoon
accomplished, and we can give you a better update on our
timing once Mr. Hammer is done.

But for the record, I don’t intend to spend a significant amount
of time with people where everybody is in agreement that a
cause record has been made.

The Court: I guess part of my concern is you’re suggesting
we keep all these people here, and I understand why you’re
concerned about it. And there may be some truth to it, that
there’s an interplay. You can ask jurors questions.

But let’s say we come back on Monday, and I’m bringing all
these people in so you can have that interplay that you want
and I can’t get this courtroom. We have my -- my courtroom
holds 46 to 50 people. Are you suggesting that you want to
leave the people here and bring them back, we’re going to do
this in two sessions when you question the jurors? Because
I can’t get a big courtroom?

Defense Counsel: I would have to confer with my colleagues
over the logistics of it. If we have space limitations on Monday,

                               6
maybe we could come up with a solution for you. But I think
fundamentally if that’s what we had to do, we might have to
make arrangements to examine two panels.

But again, I have not had an opportunity to talk with my
colleagues about how we would approach the situation.

The Court: Why don’t you go ahead and talk to them now.
We will be in recess.

Defense Counsel:        Thank you, Your Honor, for the
opportunity to let us confer back there in the side room. Our
thought would be we get the jurors back in here, start the
afternoon session.

Let’s see what Mr. Hammer accomplishes. If he finishes up,
we can have a talk this afternoon about whether there is an
opportunity to get some jurors out of here before Monday and
if we need to make arrangements to be in a smaller courtroom
on Monday.

But our thought would be at a minimum, it would be much
less conspicuous if we let people go, to do so at the end of the
day. I’m not sure we’re all on the same page with respect to
the 30 or so people Mr. Hammer mentioned. We may need to
argue some of those.

Our thought would be to bring the whole panel back in now,
let Mr. Hammer keep going, and we confer again on this at
5:00, at the end of the day today.

The Court: Anything else . . . ?

Plaintiff’s Counsel: Judge, our preference would be to go
through and excuse those people that clearly meet the cause
criteria.

The Court: Thank you. And Counsel, respectfully, that
would be my suggestion as well. Let’s just go through this
docket and get rid of these jurors who -- basically indicated to
your question, Mr. Hammer, that they had a strong feeling
and that it’s not something they could set aside.

I have my own notes. I’m sure that I might have missed one

                               7
         or two, but I have my own notes.

   Plaintiff’s counsel began by listing his objected-to venire members. As
plaintiff’s counsel listed the jurors, defense counsel objected that he
should be able to question them first. The trial court excused thirty-one
jurors without providing the defense an opportunity to question them. The
defense accepted the jury with the exception of its continued objection to
the process employed to excuse thirty-one jurors without providing the
defense an opportunity to question them.

   The trial proceeded. The tobacco defendants argued the trial court was
required to instruct the jury that punitive damages are only available for
intentional torts—not negligence and strict liability claims. The court
agreed. The trial court followed defense counsel’s recommendation and
did not include a question concerning whether punitive damages were
warranted if the jury found no reliance.

   The jury returned a verdict in favor of the plaintiff. It found the plaintiff
did not prove the decedent relied on a statement or omission after May 5,
1982, but that he relied on a statement before that date. The jury
apportioned the responsibility for the decedent’s death as follows: 14.5%
to R.J. Reynolds, 14.5% to Lorillard, 1% to Liggett Group, and 70% to the
decedent.

    The tobacco defendants filed several post-trial motions, including a
motion for new trial. They argued the court should grant a new trial
because it had “erroneously dismissed jurors for cause in each panel
immediately after plaintiff’s counsel’s questioning, thus (i) depriving
[d]efendants of the opportunity to orally question the entire venire; and (ii)
tainting the remaining jurors’ answers to the [d]efendants’ voir dire
questioning.”

   The plaintiff also moved for a new trial to allow the jury to decide the
issue of entitlement to punitive damages. The trial court granted the
defendants’ motion for new trial based on its dismissal of thirty-one
members of the venire without allowing the defense to question them. The
court denied all other motions from both parties. From the order granting
the new trial, the plaintiff now appeals. The tobacco defendants cross-
appeal to preserve issues concerning the use of the Engle 1 findings.

   The plaintiff argues the trial court erred by ordering a new trial on all
issues when the court had not erred in dismissing the thirty-one venire

1   Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).

                                           8
members for cause. She claims no party has an absolute right to examine
prospective jurors once the trial court has concluded the jurors cannot be
impartial or rehabilitated.

   The defendants respond that Florida case law holds that a trial court
reversibly errs when it dismisses jurors for cause without allowing the
attorneys to conduct voir dire. They argue the trial court erred in
dismissing thirty-one jurors for bias without allowing defense counsel to
examine them.

    We review the trial court’s order granting a new trial for an abuse of
discretion. Reffaie v. Wal-Mart Stores, Inc., 96 So. 3d 1073, 1075 (Fla. 4th
DCA 2012). We have emphasized that our review is even more limited
where the trial court grants a motion for new trial. Thigpen v. United Parcel
Servs., Inc., 990 So. 2d 639, 645 (Fla. 4th DCA 2008) (emphasis added)
(internal citation and quotation omitted) (“A trial court’s discretion to grant
a new trial is of such firmness that it would not be disturbed except on a
clear showing of abuse.”). For who is in a better position to review an error
than the one who makes it?

   A trial court should grant a new trial where an examination of the entire
case indicates that the error resulted in a miscarriage of justice. § 59.041,
Fla. Stat. (2015). When a trial court is deciding whether to excuse a juror
for bias, “[t]he test is whether the juror possesses the state of mind
necessary to render a verdict in accordance with the evidence and not
based upon preconceived opinions.” Matarranz v. State, 133 So. 3d 473,
489 (Fla. 2013). While the court may ask questions of the panel members,
“the right of the parties to conduct a reasonable examination of each juror
orally must be preserved.” Fla. R. Civ. P. 1.431(b). That right requires
counsel for each side to orally examine the panel members during voir
dire. Jenkins v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002).

    “A trial court must excuse a juror where there is reasonable doubt
whether the juror is impartial. To determine whether such reasonable
doubt exists, the trial court should consider the context and entirety of the
juror’s responses.” Jackson v. State, 213 So. 3d 754, 770 (Fla. 2017)
(internal citations omitted).

   In its order granting new trial, the trial court cited O’Connell v. State,
480 So. 2d 1284 (Fla. 1985). There, the supreme court held the trial court
erred in excluding prospective jurors when it first allowed the prosecutor—
but not defense counsel—to question them. Id. at 1286-87. This
amounted to a due process violation, and warranted a new trial. Id. at
1287; see also Green v. State, 575 So. 2d 796, 797 (Fla. 4th DCA 1991)

                                      9
(applying O’Connell and holding the trial court erred in striking two venire
members, who doubted their ability to be impartial, without first giving the
defendant an opportunity to question them).

   The trial court also cited two of our opinions in its order. See Melendez
v. State, 700 So. 2d 791 (Fla. 4th DCA 1997); Sisto v. Aetna Cas. & Sur.
Co., 689 So. 2d 438 (Fla. 4th DCA 1997). Melendez is instructive.

   There, we held that trial courts have considerable discretion in
determining the extent of venire examination.

      [But, t]he court’s failure to allow counsel to inquire into a
      prospective juror’s potential biases amounts to an abuse of
      discretion warranting reversal unless it becomes “conclusively
      clear to the court after questioning, that there was no
      reasonable basis to anticipate that the juror could return a
      verdict against the defendant.”

Melendez, 700 So. 2d at 792 (quoting Fleckinger v. State, 642 So. 2d 35,
37 (Fla. 4th DCA 1994)).

   Here, at the outset of the discussion, the trial judge stated: “I don’t see
how you can rehabilitate those jurors. It would be my thought just to
excuse them.” While defense counsel agreed “there were certainly some
people . . . who articulated views that cannot be rehabilitated,” it did not
acquiesce in the court’s procedure and requested an opportunity to
question the venire as a whole. And, the court did not find that it was
“conclusively clear” the thirty-one potential jurors could not be impartial.

   The trial court had the unique perspective to reflect upon its own
decision to eliminate thirty-one people from the venire without allowing
the defense to ask a single question. We provide great deference to trial
courts in making such decisions. We agree with the trial court in
correcting its initial error and granting a new trial.

    With that said, we disagree with the tobacco defendants to the extent
that their right to question the venire encompassed the use of that process
to taint the entire venire. The better procedure would have been to allow
the defense to question the thirty-one venire members outside the
presence of the entire venire once it became apparent that some or all of
them might possess a bias that could not be undone. In this way, the
court could ensure that biased members were excused without tainting
the entire venire with the bias of those members.


                                     10
   Because a new trial has been granted, we need not address the punitive
damage issues raised. Subsequent case law has provided much needed
guidance on these issues. See, e.g., Soffer v. R.J. Reynolds Tobacco Co.,
187 So. 3d 1219 (Fla. 2016). And lastly, we affirm the cross-appeal
without further comment.

   For the reasons expressed, we affirm the order granting a new trial.

   Affirmed.

GROSS J., concurs.

CONNER, J., concurring in part and dissenting in part.

   I concur with the majority to affirm the cross-appeal. However, I
respectfully dissent from the affirmance of the trial court’s order granting
a new trial. My review of the record leads me to conclude the trial court
did not err in dismissing the potential jurors without affording the
defendants the opportunity to ask questions, and the grant of a new trial
on a legal issue, rather than a factual issue, was error.

   The majority correctly points out that a new trial should be granted to
cure a miscarriage of justice and our review of a grant of a new trial is
more limited than a denial, requiring a clear showing of abuse. However,
we have also said:

      While ordinarily the granting of a new trial is within the sound
      discretion of the trial judge, reversible only on showing of an
      abuse of discretion, if the ruling is grounded on a question of
      law, uncontaminated with factual conflict, the area of discretion
      in granting a new trial is drastically limited,[ ]and the appellate
      court is on the same footing as the trial judge in determining
      the correct law to be applied.

State Farm Mut. Auto. Ins. Co. v. Gage, 611 So. 2d 39, 40 (Fla. 4th DCA
1992) (emphasis added, footnote omitted and citations omitted).
Acknowledging a stronger showing is required to reverse a grant of new
trial, the Second District has said that “the point being one strictly of law
uncontaminated with factual conflict, the area of discretion is drastically
diminished if not entirely eliminated.” Florida Power Corp. v. Smith, 202 So.
2d 872, 875 (Fla. 2d DCA 1967)) (emphasis added) (quoting Brown v.
Fawcett Publ’ns, Inc., 196 So. 2d 465, 466 (Fla. 2d DCA 1967)). In Florida
Power, the Second District reviewed the grant of a new trial on the



                                      11
contention that a juror gave misleading information during jury selection.
Id. Additionally, the court wrote:

      The rule is that there must be a reason in law for a trial
      Judge’s setting aside a verdict and granting a new trial,
      otherwise the Judge invades the province of the jury.

      ....

      It is concededly true that a trial Court has broad judicial
      discretion in the matter of setting aside a verdict and granting
      a new trial but it must be predicated upon the proposition that
      error is shown to have been committed during the trial or
      some injustice done to the moving party.

      ....

      A new trial should be granted only when substantial rights
      have been so violated as to make it reasonably clear that a fair
      trial was not had.

Id. at 878 (emphasis added and citations omitted).

    The majority quotes a significant portion of the trial transcript
regarding a bench conference discussion of the responses of multiple
prospective jurors to the group question posed by plaintiff’s counsel. But
the details of what happened prior to and after that discussion and the
trial judge’s decision to excuse biased potential jurors before giving the
defense an opportunity to ask questions are important to the analysis.

   Before the portion of the transcript quoted above, as to each potential
juror excused, plaintiff’s counsel asked the same series of three questions
along the following lines:

      Is your belief a strongly held belief?

      Is your belief something you could set aside?

      Are your feelings so strong that you have a reasonable doubt
      as to whether or not you could set aside those feelings in a
      case like this?

As to the first and third questions, each excused potential juror answered
affirmatively, and each answered negatively to the second question.


                                     12
   After the portion of the transcript quoted above, the trial judge had the
plaintiff discuss one-by-one the potential jurors who responded as such to
the three questions posed above. With the first potential juror discussed,
the trial court acknowledged that the defense was objecting to the
procedure, but wanted to know if there were any further objections. As
each prospective juror was discussed, defense counsel gave one of three
responses: “no objection,” “same position,” or “same objection.” After
hearing “same objection” a few times, the judge sought clarification:

      The Court:          When you say “same objection,” so the
                          record is clear, I know you are objecting to
                          the procedure, but you’re not indicating
                          that these jurors—you think these jurors
                          can be rehabilitated or anything like that?

      Defense Counsel: Correct.

      The Court:          Thank you.

In other words, defense counsel agreed with plaintiff’s counsel assertion
that each potential juror excused gave responses indicating bias which
could not be rehabilitated. The defendants admitted the same at oral
argument.

   Reviewing the discussion quoted by the majority, defense counsel said
the following as the basis for objecting to the procedure:

      Again, our position is we think that the defendants are entitled
      to examine the venire as a whole. They’re part of this. They’re
      part of this group.

      [W]e want to keep the whole group together.

Additionally, defense counsel expressed concern regarding releasing so
many prospective jurors early on in the selection process: “if we come back
and this group sees that 30 people are gone, that’s a pretty good invitation
of people to just start saying things to go. We don’t have a good feel for it.”

   The majority correctly notes that a new trial should be granted to
correct a miscarriage of justice. By rule, “the right of the parties to conduct
a reasonable examination of each juror orally must be preserved.” Fla. R.
Civ. P. 1.431(b). The majority is correct that the right preserved by the
rule requires counsel for each side to orally examine the panel members
during voir dire. Jenkins v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002).
However, our supreme court has recently reaffirmed that “[a] trial court

                                      13
must excuse a juror where there is reasonable doubt whether the juror is
impartial.” Jackson v. State, 213 So. 3d 754, 770 (Fla. 2017) (emphasis
added) (citing Banks v. State, 46 So. 3d 989, 995 (Fla. 2010)). The majority
interprets “must excuse” to mean only after both sides have an opportunity
to ask questions. But our jury system is so loathe to allow bias and
prejudice to seep into the process, that it appears to me that there is no
error in dismissing a biased potential juror, once both sides agree the bias
exists and cannot be rehabilitated, regardless of whether opposing counsel
has an opportunity to question further.

    The majority’s reliance on Melendez v. State, 700 So. 2d 791 (Fla. 4th
DCA 1997), is puzzling in that it uses a quote from the opinion, which in
turn quotes our earlier opinion in Fleckinger v. State, 642 So. 2d 35 (Fla.
4th DCA 1994). Fleckinger is actually more controlling for the disposition
of this case. In Fleckinger, the trial court excused a prospective juror after
questioning by the court but without allowing defense counsel to examine
the juror. Id. at 36. The prospective juror stated under questioning by the
court that she could not serve because of her religious beliefs. Id. After
several questions by the court to see if she would budge from her position,
the State moved to excuse her, which the court granted. Id. The defense
moved for mistrial, objecting to the procedure. Id. After observing that
the record made it “absolutely and unambiguously clear that [the
prospective juror] was incapable of reaching a verdict for the state,” we
concluded that “[o]nce it became conclusively clear to the court after
questioning, that there was no reasonable basis to anticipate that the juror
could return a verdict against the defendant, it was not an abuse of
discretion to excuse her.” Id. at 36-37. It appears a parallel situation
occurred in this case.

   On appeal, as they did below, the defendants argue that they were
deprived of the ability to use “group dynamics” to assist in being able to
intelligently use peremptory and cause challenges.           However, the
defendants, in my view, have not sufficiently explained how keeping the
excused jurors until they were able to ask questions would have facilitated
some group dynamic that would have made questioning more effective in
determining which of the remaining jurors should be excused for cause or
peremptorily. The trial judge was correctly concerned that keeping biased
jurors on the venire ran the risk that one of those jurors could have said
something so biased as to be grounds to dismiss the entire venire.

   Other than some nebulous and speculative theory that they were
deprived of the opportunity to work off “group dynamics,” the defendants
have failed to show what harm was suffered. The concern that releasing
so many potential jurors early on would invite the remaining potential

                                     14
jurors “to just start saying things to go” did not pan out and was offset by
negating the risk that biased potential jurors could pollute the entire
venire. It is clear the trial judge would have allowed further questioning if
the defendants thought any excused juror could have been rehabilitated.
If further questioning would have been requested to determine if
rehabilitation was possible, I agree with the majority that individual
questioning would have been the better course. However, the record
simply does not support the conclusion that the defendants were deprived
of a fair trial or that a miscarriage of justice occurred.

   Although I am satisfied that the trial judge had second thoughts about
the procedure he employed, in my view he did nothing wrong, given the
agreement by the defendants that the excused jurors were biased and
could not be rehabilitated. Having done nothing wrong during the trial, it
was an invasion of the province of the jury sworn to try the case, to then
take their verdict away after trial.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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