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Can Prosecutors Strike Potential Jurors from a Criminal Trial Based on Race?


In Florida criminal trials, the prosecution and the defendant are each allowed a certain number of “peremptory challenges” during the process of jury selection. A peremptory challenge means you can strike a potential juror without having to give a reason. But there are some limits to this power. For example, in a 2019 decision, Flowers v. Mississippi, Justice Brett Kavanaugh, writing for the United States Supreme Court, said that prosecutors “may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.”

To put it more bluntly: Prosecutors cannot systematically exclude black jurors from a trial because they might prove more sympathetic to a black defendant. Despite this clear admonition, many prosecutors here in Florida continue to try and skirt the rule by attempting to give “race-neutral” explanations for excluding black or African-American jurors.

Florida Court Orders New Trial After Prosecution Fails to Justify Decision to Strike African-American Juror

The Florida Second District Court of Appeal recently addressed such a case. The underlying facts of this case, Gibson v. State, are a bit unusual. The defendant was arrested after trespassing on private property and purportedly shooting a “robotic” deer placed as part of a Florida Fish and Wildlife sting operation to catch illegal hunting. The defendant was later charged with a number of crimes, only one of which–possession of a firearm by a convicted felon–went to a jury trial.

During the jury selection process, Manatee County prosecutors moved to use one of their peremptory challenges against an African-American juror. The defendant objected to the challenge. But the judge overruled the objection and struck the juror. The seated jury panel then proceeded to find the defendant guilty of the weapons charge.

On appeal, the defendant argued he was denied his right to a fair trial due to the prosecution’s racially motivated decision to strike the juror. The Second District agreed with the defendant and ordered a new trial. The appellate court did not accept the prosecution’s “race-neutral” explanation for its decision to exercise a peremptory challenge.

The prosecution offered three reasons before the Second District. First, the prosecution pointed to the juror’s statements that she “could understand why a defendant might not want to testify” at trial. The prosecution suggested this meant the juror would find the defendant not guilty if he chose not to testify, indicating potential bias. But the Second District said this was “not a sufficient basis for a peremptory strike.”

Second, the prosecution suggested the challenged juror exhibited a “lack of interest” in the process. The appellate court said this assertion was “not supported by the record.” Indeed, the Second District noted the prosecution accepted another juror from the same panel who had exhibited even less of an interest in the process based on the prosecution’s own questioning.

Finally, the prosecutor cited a “lack of rapport” between herself and the juror. Again, the Second District said this was an “unconfirmed subjective impression” that could not overcome the presumption that the state excluded the juror primarily based on her race.

Contact Florida Criminal Defense Lawyer Jose A. Baez Today

Jury selection is just one aspect of a trial where small decisions can have a substantial impact on the final outcome. An experienced Orlando criminal defense attorney can provide you with skilled representation throughout this process. If you have been charged with a crime and need representation, contact the Baez Law Firm today to schedule a consultation.





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