Race-Based Inquiry On Peremptory Challenges In Florida

In the case of Travelers Home and Marine Insurance Company v. Gallo, Case Numbers 5D16-3158 and 5D16-4214 (Fla. 5th DCA June 1, 2018), Florida’s Fifth DCA revisited the inquiry for determining the sufficiency of race neutral reasons suggested by lawyers in exercising peremptory challenges.

The Facts – It Was Over Before The Trial Ever Started

Travelers appealed this case after the jury returned a verdict in favor of the plaintiff (Gallo) in an uninsured motorist case.  At the very beginning of the trial, Travelers attempted to strike an African-American female as a juror.  When Travelers attempted to use a peremptory challenge on her, the trial judge (responding to an objection from the plaintiff’s attorney) requested a race-neutral reason for the challenge.

The lawyer for Travelers stated in response that “she was inattentive and did not appear engaged in the jury selection process.”  The lawyer further suggested that she would not be “focused,” “pay attention,” or “actually consider the evidence.”

Thereafter, the trial judge found that Travelers’ “race-neutral” reason was “legally insufficient.”

Immediately thereafter, the plaintiff’s lawyer placed on the record that his observations of the juror were the complete opposite.

Proper Inquiry For Determining The Sufficiency Of A Race-Neutral Reason Offered By Counsel

In this case, the trial judge was reversed because the trial judge never engaged in an analysis of whether the peremptory strike was “genuine” other than simply stating that the race-neutral reason was legally insufficient.  Specifically, the trial judge stated that Travelers’ explanation was not “disingenuous.”

This case is a reminder that it is presumed that peremptory challenges are used in a nondiscriminatory manner.  It is up to the party challenging the use of the peremptory to bear the burden of persuasion that the use of the challenge is racially discriminatory (see Melbourne v. State, 679 So. 2d 759 (Fla. 1996)).

The proper inquiry under Melbourne is:

Step 1 – An objection to a peremptory challenge based on race must show that the potential juror is a member of a distinct racial group and request the judge to ask a reason for the strike.

Step 2 – The party exercising the peremptory challenge must be able to state a race-neutral reason for the strike.

Step 3 – The “race-neutral” reason must not be pretextual and the judge must believe the reason given all the circumstances surrounding the strike.

The Melbourne case tells us that the race-neutral reason does not have to be “reasonable” but instead only needs to be “genuine.”  Therefore, the question must be asked whether a completely unreasonable but somehow still genuine race-neutral reason is legally sufficient for purposes of equal protection.

Problem With This Analysis

The problem with the Travelers case appears to be that the judge never expressed a disbelief in the lawyers’ assertion that the African-American juror would not be attentive.  There was never any record evidence that she in fact was not paying attention (like having to be asked whether she heard a question or not and having to have questions repeated).

As a trial lawyer, I have to cast some doubt as this explanation might be a pretext.  If this potential juror was truly not paying attention (either by falling asleep or daydreaming-as we all can do at times-to the point where she was not functional as a juror) then that should have been a trigger to the lawyer doing voir dire that there is a probably challenge for cause rather than a peremptory challenge.

It seems to me that a peremptory challenge used to strike an African-American woman from a jury for not being “attentive” (without an indication that other jurors of other races were also “inattentive” and requested to be stricken) is likely pretext.  As such, the thought that any lawyer can avoid a race-based challenge to a juror by coming up with a facially “race-neutral” reason is reckless and simply wrong.

The Fifth DCA cited Young v. State, 744 So. 2d 1077 (Fla. 4th DCA 1999) for the proposition that “identifying the true nature of an attorney’s motive behind a peremptory strike turns primarily on an assessment of the attorney’s credibility.”

How does a trial judge find that a facially race-neutral reason is legally insufficient (in other words, the explanation is not reasonable) but yet believe that the attorney is genuine?  I am not sure that this question can be answered except to say that the record was inconsistent as to whether the trial judge actually believed counsel or was merely being polite.

Perhaps the legal analysis should have go deeper into why the judge thought the reason given by counsel was not legally sufficient considering the citation from the Slappy case in Young v. State below:

[T]he issue is not whether several jurors have been excused because of their race, but whether any juror has been so excused, independent of any other. This is so because the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.

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