       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          JOEL IVORY JONES,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D16-2779

                           [November 1, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jack S. Cox, Judge; L.T. Case No. 50-2014-CF-008606-
AXXX-MB .

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Affirmed.

CONNER and FORST, JJ., concur.
KLINGENSMITH, J., concurs specially with opinion.

KLINGENSMITH, J., concurring specially.

   In this case, defense counsel objected to the State exercising a
peremptory challenge against a white male juror who may have identified
with the Hispanic class. Defense counsel requested both a race and
gender neutral basis for the strike:

      [Defense counsel]: Judge, we would object to the State
      exercising a peremptory challenge against [the juror] who is
      identified with the Hispanic class and would request a race
      neutral --
      THE COURT: Okay.
      [Prosecutor]: Judge, he’s a white male.
      [Defense counsel]: Well, we request the gender neutral reason.
      We would request both.
      THE COURT: So your position is that he’s Hispanic, okay, and
      that it’s gender?
      [Defense counsel]: And he’s a male.

    The trial judge ultimately concluded there was a neutral basis for the
strike. I agree with my colleagues in affirming the trial court’s decision
because nothing indicates that the strike of the prospective juror in this
case was improperly motivated, nor could any such conclusion be reached
on this record.

   However, I write to specially concur in this opinion to express my
dismay at what I view as the gradual and continual erosion of the
peremptory challenge. Years of court decisions now require trial judges to
be the arbiters of the motivations behind these challenges, placing a
burden on judges to be mind-readers in assessing the genuineness of such
challenges.

    “The peremptory challenge is ‘a practice of ancient origin’ and is ‘part
of our common law heritage.’” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
147 (1994) (O’Connor, J., concurring) (quoting Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 639 (1991) (O’Connor, J., dissenting)). While
there is no freestanding constitutional right to exercise peremptory
challenges at either the state or federal level, Florida courts have long
recognized that “such challenges are nonetheless ‘one of the most
important of the rights secured to the accused.’” Smith v. State, 59 So. 3d
1107, 1111 (Fla. 2011) (quoting Busby v. State, 894 So. 2d 88, 98 (Fla.
2004)). The central function of peremptory challenges is to “enabl[e] each
side to exclude those jurors it believes will be most partial toward the other
side.” Holland v. Illinois, 493 U.S. 474, 484 (1990). Recognizing the
interplay between voir dire and peremptory challenges in American trials,
the United States Supreme Court noted that jury selection “operat[es] as
a predicate for the exercise of peremptories,” the persistence and extensive
use of which “demonstrate the long and widely held belief that peremptory
challenge is a necessary part of trial by jury.” Swain v. Alabama, 380 U.S.
202, 219 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S.
79 (1986).

   In J.E.B., Justice O’Connor stated that “[i]n further constitutionalizing
jury selection procedures, the Court increases the number of cases in
which jury selection—once a sideshow—will become part of the main
event.” 511 U.S. at 147 (O’Connor, J., concurring). She continued, stating

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that “[b]ecause I believe the peremptory remains an important litigator’s
tool and a fundamental part of the process of selecting impartial juries,
our increasing limitation of it gives me pause.” Id. at 148. Justice
O’Connor emphasized that “[l]imiting the accused’s use of the peremptory
is ‘a serious misordering of our priorities,’ for it means ‘we have exalted
the right of citizens to sit on juries over the rights of the criminal
defendant, even though it is the defendant, not the jurors, who faces
imprisonment or even death.’” Id. at 150 (quoting Georgia v. McCollum,
505 U.S. 42, 61-62 (1992) (Thomas, J., concurring)). See also id. at 162
(Scalia, J., dissenting) (arguing that the extension of Batson to gender and
beyond will lead to “extensive collateral litigation” and the “lengthening of
the voir dire process that already burdens trial courts”).

    “In the trial of a case the jury selection and voir dire examination are
just as critical to the outcome as the presentation of evidence. . . . The
change of a single juror in the composition of the jury could change the
result.” Ter Keurst v. Miami Elevator Co., 486 So. 2d 547, 550-51 (Fla.
1986) (Adkins, J., dissenting). As part of that selection process, the right
to exercise peremptory challenges serves several valid practical purposes:
it allows litigants to secure a fair and impartial jury; it gives the parties
some control over the jury selection process; it allows attorneys to search
for biases during the selection process without fear of accepting a potential
juror who may not display it overtly, or who may have been somehow
offended during questioning; it allows attorneys to strike potential jurors
who appear to not want to be there but have been unsuccessful in their
attempts to be excused from service; and it serves as an insurance policy
when a challenge for cause is denied by the judge and the challenging
party still believes the juror will be unable to render a fair and impartial
verdict.

    In Reed v. State, 560 So. 2d 203, 206 (Fla. 1990), the Florida Supreme
Court affirmed the peremptory challenge of an African-American juror,
recognizing that “[o]nly one who is present at the trial can discern the
nuances of the spoken word and the demeanor of those involved.” Notably,
the court reasoned that in future cases it would “rely on the inherent
fairness and color blindness of our trial judges who are on the scene and
who themselves get a ‘feel’ for what is going on in the jury selection
process.” Id.

    A year later, in Green v. State, 583 So. 2d 647, 651 (Fla. 1991), the
court reminded trial judges that racially neutral reasons for peremptory
challenges “need not rise to the level justifying challenges for cause,” and
again told them it was their responsibility to evaluate both the credibility
of the reason asserted and the credibility of the person offering the reason

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in determining whether a peremptory challenge was racially motivated.
This is because trial judges are in the best possible position, although an
imperfect one, to determine the credibility of the attorney seeking to
support the challenge. Id. at 652. In fact, credibility is the key issue as to
whether a trial court accepts or rejects a race neutral reason offered by the
challenger. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

    The rules prohibiting the discriminatory use of peremptory challenges
are intended to apply consistently to litigants in civil cases as well as
criminal cases. Compare McCollum, 505 U.S. at 55 (finding that a criminal
defendant’s discriminatory use of peremptory challenges violated equal
protection clause), with Edmondson, 500 U.S. at 629–31 (holding that civil
litigants are prohibited from exercising racially discriminatory peremptory
challenges), and Batson, 476 U.S. at 96 (outlining the standards by which
the prosecution’s use of race-based peremptory challenges may be deemed
unconstitutional).

   It has been said that “a lawyer’s time and advice are his stock in trade,”
but so too are his or her experience and judgment. Successful trial
attorneys understand that uncovering a juror’s bias depends not only on
skillful voir dire questioning, but also the ability to interpret body
language, voice inflections, facial responses, and to draw upon knowledge
gleaned from past experiences with an array of jurors.

    Sometimes, prospective jurors will give an experienced attorney nothing
more than a “bad vibe” that cannot be reduced to the record. Experienced
trial lawyers develop gut feelings about jurors that are often difficult to
articulate to a judge and may not rise to a level supporting a “for cause”
strike. This does not mean that such an attorney is not being “genuine”
regarding his or her reasons for exercising a “neutral” strike in the ordinary
sense of the word; it simply means that our case law requires trial judges
to accept or reject the proffered reason as a permissible use of the
peremptory, often based on little more than their experience, judgment
and intuition.

    Although the goal of rooting out discriminatory conduct is laudable,
court decisions over the years have had the adverse effect of depriving
lawyers of the ability to use their own experience, judgment, and intuition
in exercising challenges to select jury panels. What used to be purely
discretionary challenges have now transformed into de facto challenges
“for cause.” For as it now stands, attorneys exercising a strike against any
juror of any possible demographic are now compelled to provide a “neutral”
reason for using a peremptory challenge. See Abshire v. State, 642 So. 2d
542, 543-44 (Fla. 1994) (women); Guevara v. State, 164 So. 3d 1254, 1256

                                      4
(Fla. 2d DCA 2015) (men); Whitby v. State, 933 So. 2d 557, 563-64 (Fla 3d
DCA 2006) (white males); Olibrices v. State, 929 So. 2d 1176, 1180 (Fla
4th DCA 2006) (Pakistani ethnicity and Muslim religious beliefs); Joseph
v. State, 636 So. 2d 777, 780-81 (Fla. 3d DCA 1994) (Jews); Fernandez v.
State, 639 So. 2d 658, 660 (Fla. 3d DCA 1994) (black males); Alen v. State,
596 So. 2d 1083, 1085 (Fla. 3d DCA 1992) (Hispanics). Putting aside the
obvious problems inherent in protecting certain classes of persons and
granting them a more favorable status for sitting on a jury over others;
when everyone becomes a member of a protected class, then no one is.

   As the Florida Supreme Court has recognized, “[i]t is the right to an
impartial jury, not the right to peremptory challenge that is
constitutionally protected.” Jefferson v. State, 595 So. 2d 38, 41 (Fla.
1992) (footnote omitted). While peremptory strikes have undoubtedly been
used by some in the past for discriminatory purposes, experience has
shown that requests for “neutral” reasons are often made solely for the
purposes of gamesmanship, and consequently, provide vehicles for
obtaining new trials following unsatisfactory outcomes.

    Those court decisions have eviscerated any presumption that a
peremptory challenge may be exercised in a nondiscriminatory manner.
When an objection is made, an on-the-record analysis must be applied to
every challenge, without exception. Trial and appellate courts are then
tasked with finding record support for the “genuineness” of any neutral
reason proffered. Experienced trial attorneys know this may not always
be possible to do in a manner that can be applied with consistency and
reliability. An attorney might not be able to elicit adequate information
from a prospective juror to sufficiently articulate a “neutral” reason for a
strike that is acceptable to a trial judge, or an appellate court. And in
attempting to establish an adequate record, the lawyer then risks posing
intrusive questions to the subject jurors, potentially alienating that juror
or others, as well as the risk that any attempt to strike an unfavorable
prospective juror may be disallowed.

   Ultimately, the failure to make a sufficient inquiry will probably lead to
a reversal by the appellate court for failure to make a proper record. This
has led to situations where attorneys are now using Melbourne1 challenges
in an attempt to keep certain jurors, lodging objections even though the
proponent of the challenge does not truly believe the opposing side is being
discriminatory. A judge may deny a challenge for that reason, but must
nonetheless go to great lengths to articulate a rationale for rejecting such


1   Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996).

                                      5
a challenge, or risk reversal when an appellate court deems his or her on-
the-record inquiry or explanation inadequate.

   This places both the trial lawyer and judge in a catch-22, making them
more likely to err on the side of scrupulously interrogating prospective
jurors about intimate, personal matters in an effort to elicit any justifiable
reasons for striking them. Lawyers and judges must now take copious
notes during voir dire, spend more time sifting through jurors’ answers
and deduce attorney motives to enunciate legally-recognized “neutral”
reasons. As rightly predicted by Justice Scalia in J.E.B., the result has
been longer jury selections, causing longer trials in a justice system
already burdened by expense and delay. 511 U.S. at 162 (Scalia, J.,
dissenting).

   The ensuing progression of the current case law has resulted in the
death of the peremptory challenge by a thousand cuts. I recognize that
going back to a less-restrictive use of the peremptory challenge would
probably require overturning years of legal precedent. However, trial
courts should not be obligated to subjectively evaluate the hidden motives
of attorneys exercising peremptory strikes or intuitively assess the
seemingly endless permutations of alleged racial, gender, or religious-
motivated strikes constantly proposed by litigants.

   Therefore, because of the undue burden the current use of peremptory
challenges places on courts, perhaps now is the time to change course.
This can be accomplished by returning to a less-restrictive use of
peremptory challenges as originally intended, or by formally codifying what
has been effectively accomplished in practice – the elimination of the
peremptory challenge altogether. 2

                            *         *         *

    Not final until disposition of timely filed motion for rehearing.



2 In 1986, Justice Marshall proposed the complete elimination of
peremptory challenges to remove discrimination from the jury selection
process. Batson, 476 U.S. at 107 (Marshall, J., concurring). In doing so,
he accurately predicted that future trial courts would be “ill equipped to
second-guess” the reasons offered for such strikes by lawyers. Id. at 106.
See also Vivien Toomey Montz & Craig Lee Montz, The Peremptory
Challenge: Should It Still Exist? An Examination of Federal and Florida Law,
54 U. MIAMI L. REV. 451, 495 (2000).

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