IN THE SUPREME COURT OF FLORIDA. Case No. SC STATE OF FLORIDA, Petitioner, vs. EDGAR SYLVESTER WHITBY, Respondent.

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IN THE SUPREME COURT OF FLORIDA Case No. SC STATE OF FLORIDA, Petitioner, vs. EDGAR SYLVESTER WHITBY, Respondent. BRIEF OF AMICI CURIAE ACADEMY OF FLORIDA TRIAL LAWYERS; AMERICAN CIVIL LIBERTIES
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IN THE SUPREME COURT OF FLORIDA Case No. SC STATE OF FLORIDA, Petitioner, vs. EDGAR SYLVESTER WHITBY, Respondent. BRIEF OF AMICI CURIAE ACADEMY OF FLORIDA TRIAL LAWYERS; AMERICAN CIVIL LIBERTIES UNION OF FLORIDA; CARIBBEAN BAR ASSOCIATION; ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF SOUTH FLORIDA; CUBAN AMERICAN BAR ASSOCIATION; FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, MIAMI CHAPTER; FLORIDA ASSOCIATION OF WOMEN LAWYERS, MIAMI-DADE CHAPTER; GWEN S. CHERRY/BLACK WOMEN LAWYERS ASSOCIATION; HAITIAN LAWYERS ASSOCIATION; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; AND WILKIE D. FERGUSON, JR. BAR ASSOCIATION IN SUPPORT OF BRIEF OF RESPONDENT ON CERTIFIED QUESTIONS OF GREAT PUBLIC IMPORTANCE FROM THE THIRD DISTRICT COURT OF APPEAL KAREN M. GOTTLIEB ELLIOT H. SCHERKER P.O. Box 1388 Greenberg Traurig, P.A. Coconut Grove, FL Brickell Avenue, 23 rd Floor Telephone: 305/ Miami, FL Telephone: 305/ BENJAMIN S. WAXMAN Robbins, Tunkey, Ross, et al. 2250 S.W. 3 rd Avenue, 4 th Floor Miami, FL Telephone: 305/ TABLE OF CONTENTS PAGE(S) TABLE OF CITATIONS... ii INTERESTS OF AMICI CURIAE... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 THIS COURT SHOULD REAFFIRM MELBOURNE... 3 A. The preeminent interests protected by the federal and Florida Equal Protection Clauses and Florida s Impartial Jury Clause justify Melbourne s modest initial burden B. The independent significance of Melbourne s Florida constitutional grounds justify its modest initial burden C. Overruling Melbourne would defeat this Court s efforts to eliminate racial discrimination in jury selection CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i CASE TABLE OF CITATIONS PAGE(S) Abshire v. State, 642 So.2d 542 (Fla. 1994)... 4 Andrews v. State, 438 So. 2d 480 (Fla. 3d DCA 1983), quashed, 459 So.2d 1018 (Fla. 1984)... 6 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 712 (1986)... passim Busby v. State, 894 So.2d 88 (Fla. 2004), cert. denied, 125 S.Ct, 2976 (2005)... 6 City of Miami v. Cornett, 463 So.2d 399 (Fla. 3d DCA), dismissed, 469 So.2d 748 (Fla. 1985)... 8 Davis v. Secretary for the Department of Corrections, 341 F.3d 1310 (11th Cir. 2003) Despio v. State, 895 So. 2d 1124 (Fla. 3d DCA 2005) Dorsey v. State, 868 So.2d 1211 (Fla. 2003)... 12, 20 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct (1991)...4, 8, 10 Ford v. Norris, 67 F.3d 162 (8th Cir. 1995) Foster v. State, 614 So.2d 455 (Fla. 1992), cert. denied, 510 U.S. 951 (1993)...9, 19 ii iii CASE TABLE OF CITATIONS (continued) PAGE(S) Franqui v. State, 699 So.2d 1332 (Fla. 1997), cert. denied, 523 U.S (1998), and cert. denied, 523 U.S (1998)...9, 12 Frazier v. State, 899 So. 2d 1169 (Fla. 4th DCA 2005) Georgia v. McCollum, 505 U.S. 42, 112 S.Ct (1992)...4, 6, 8 Hernandez v. New York, 500 U.S. 352, 111 S.Ct (1991)... 8 Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667 (1954)... 3 J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct (1994)... 4 Johnson v. California, 545 U.S. 162, 125 S.Ct (2005)... 5, 9, 13, 14 Johnson v. Florida Farm Bureau Cas. Ins. Co., 542 So.2d 367 (Fla. 4th DCA 1988), rev. dismissed, 549 So.2d 1013 (Fla. 1989)... 8 Melbourne v. State, 679 So.2d 759 (Fla. 1996)... passim Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct (2005)... passim Neil v. State, 457 So.2d 481 (Fla. 1984)... 4, 6-8 Powers v. Ohio, 499 U.S. 400, 111 S.Ct (1991)...4, 5, 10 iv CASE TABLE OF CITATIONS (continued) PAGE(S) State v. Alen, 616 So.2d 452 (Fla. 1993)... 4, 8 State v. Chapman, 454 S.E.2d 317 (S.C. 1995) State v. Holiday, 682 So.2d 1092 (Fla. 1996)... 9 State v. Holloway, 553 A.2d 166, 171 (Conn. 1989) State v. Johans, 613 So. 2d 1319 (Fla. 1993)... passim State v. Jones, 358 S.E. 2d 701 (S.C. 1987) State v. McFadden, 191 S.W. 3d 648 (Mo. 2006) State v. Parker, 836 S.W.2d 930 (Mo. 1992) State v. Rigual, 771 A.2d 939 (Conn. 2001) State v. Slappy, 522 So.2d 18 (Fla. 1988), cert. denied, 487 U.S (1988)... 9 Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965)... 7 Thomas v. State, 885 So. 2d 968 (Fla. 4th DCA 2004) v CASE TABLE OF CITATIONS (continued) PAGE(S) Traylor v. State, 596 So.2d 957 (Fla. 1992)...7, 11 United States v. Moore, 28 M.J. 366 (CMA 1989) Valentine v. State, 616 So.2d 971 (Fla. 1993)... 9 Wallace v. State, 889 So. 2d 928 (Fla. 4th DCA 2004) FLORIDA CONSTITUTION Art. I, Section Art. I, Section , 7, 11 Art. I, Section STATE RULES Florida Rule of Appellate Procedure 9.210(a)(2) vi INTERESTS OF AMICI CURIAE The amici are, generally, public interest, lawyer, or other Florida organizations which include among their primary concerns insuring against racial, ethnic, religious, or gender discrimination, protecting the Bill of Rights and Florida s Declaration of Rights, and safeguarding Florida s criminal and civil justice systems. They are: the Academy of Florida Trial Lawyers (AFTL; statewide notfor-profit organization of approximately 4,000 trial and appellate lawyers); American Civil Liberties Union (ACLU) of Florida (Florida, not-for-profit affiliate of national organization with approximately 30,000 members); the Asian Pacific American Bar Association of South Florida (APABA-S.Fla.; not-for-profit association of Asian Pacific American attorneys, judges, law professors, and law students from Miami- Dade, Broward and Palm Beach Counties); the Caribbean Bar Association (CBA; statewide not-for-profit voluntary bar association); the Cuban American Bar Association (CABA; Florida not-for-profit voluntary bar association); the Florida Association of Criminal Defense Lawyers (FACDL, not-for-profit corporation with approximately 1,600 criminal defense lawyer, professor, and judge members); the Miami Chapter of the Florida Association of Criminal Defense Lawyers (Miami affiliate of the FACDL), the Florida Association of Women Lawyers (FAWL; statewide corporation with approximately 1900 lawyer, judge, and law professor 1 members), the Miami-Dade Chapter of the Florida Association of Women Lawyers; the Gwen S. Cherry/Black Women Lawyers Association (GSC/BWLA; not-forprofit bar association with approximately 300 lawyer, professor, and judicial Miami- Dade and Broward members); the Haitian Lawyers Association (HLA; not-forprofit organization with approximately 100 lawyer members); the National Association for the Advancement of Colored People (NAACP; national, non-profit civil rights organization), and the Wilkie D. Ferguson, Jr. Bar Association (WDFJBA; Miami-Dade, not-for-profit, voluntary bar association). Their descriptions and interests are more fully set forth in their Unopposed Motion for Leave to File Amicus Curiae Brief in Support of Respondent. SUMMARY OF ARGUMENT Melbourne establishes a simple, precise, and easy-to-administer procedure for challenging a litigant s suspected use of a peremptory challenge to discriminate based on race or other impermissible factors. The test is the product of a careful refinement that began in 1984 with Neil. The simplified inquiry adopted by this Court recognizes that little is required to request, and evaluate, a neutral explanation, but too much is lost if discrimination is permitted to remain undetected. Melbourne s protocol efficiently and effectively safeguards the federal and Florida constitutional prohibitions against discriminatory jury selection. 2 The criticisms offered by the state and its supporting amicus are unsubstantiated and illusory. Because Melbourne s procedure continues to work well and advances this Court s interest in protecting Florida s court system from unconstitutional discrimination, this Court should, once again, reaffirm Melbourne. ARGUMENT THIS COURT SHOULD REAFFIRM MELBOURNE. A. The Preeminent Interests Protected by the Federal and Florida Equal Protection Clauses and Florida s Impartial Jury Clause Justify Melbourne s Modest Initial Burden. The interests protected by Melbourne v. State, 679 So. 2d 759 (1996), are of the highest order. Purposeful discrimination based on race, ethnicity, national origin, or gender is antithetical to the United States and Florida constitutions and the democratic society and rule of law that these documents serve. As elucidated by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986): [B]y requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we 3 ensure that no citizen is disqualified from jury service because of his race. Id. at 99 (footnote omitted). This equal protection guarantee similarly guards against discrimination based on ethnicity, see, e.g., Hernandez v. Texas, 347 U.S. 475, 479 (1954); State v. Alen, 616 So. 2d 452, 454 (Fla. 1993), or gender. See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 146 (1994); Abshire v. State, 642 So. 2d 542, 544 (Fla. 1994). 1 In Florida, the protection against discrimination enshrined in Article I, Section 2, of the Florida Constitution, is independently buttressed by the guarantee of an impartial jury set forth in Article I, Section 16. Indeed, it was to this impartial-jury provision that this Court first turned in prohibiting racial discrimination in peremptory challenges, e.g., Neil v. State, 457 So. 2d 481, 486 (Fla. 1984), and this protection provided an additional basis for this Court s proscription of discrimination based on ethnicity or national origin: [U]nder the tenets of the Equal Protection Clause of the Florida Constitution, jurors should not be rejected solely on the basis of their 1 Although Batson s scope was initially limited to a prosecutor s peremptory exclusion of jurors of the defendant s race, the Court later permitted Batson objections by a defendant who does not share the group characteristics of the excluded juror, Powers v. Ohio, 499 U.S. 400(1991), by prosecutors, Georgia v. McCollum, 505 U.S. 42 (1992), and by civil litigants. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). 4 skin color or their ethnicity. To satisfy the state s constitutional guarantee of an impartial jury, citizens who are otherwise qualified to serve as impartial jurors cannot be peremptorily challenged based on their membership in a particular ethnic group. Alen, 616 So. 2d at 454 (citations and footnote omitted). Retaining Melbourne s precise and readily administered procedure is essential to ensure a wide array of fundamental interests. For it is not just the rights of criminal defendants or other individual litigants that are at stake, but those of the excluded group member, the group to which he or she belongs, our system of justice, and our democratic society. As the Supreme Court explained in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct (2005): Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury,... but racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. Nor is the harm confined to minorities. When the government s choice of jurors is tainted with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial.. That is, the very integrity of the courts is jeopardized when a prosecutor s discrimination invites cynicism respecting the jury s neutrality,... and undermines public 5 confidence in adjudication S.Ct. at (citations omitted). See also Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2418 (2005) ( [T]he overriding interest in eradicating discrimination from our civic institutions suffers whenever an individual is excluded from making a significant contribution to governance on account of his race. ); Powers v. Ohio, 499 U.S. 400, (1991) ( The very fact that [members of a particular race] are singled out and expressly denied... all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. ) (citation omitted). 2 With such important interests at stake, the scale tips decisively in favor of requiring, upon objection, a brief and direct inquiry designed to uncover impermissible discrimination. 2 Indeed, the Supreme Court of the United States, in discussing the impact of discriminatory jury strikes on the public s confidence in the courts, chose raciallycharged Florida trials and their aftermath as examples of the public outrage that follows such racial discrimination. Georgia v. McCollum, 505 U.S. 42, 49 (1992); see Andrews v. State, 438 So. 2d 480, 482 (Fla. 3d DCA 1983) (Ferguson, J., specially concurring) ( To call the issue troublesome is a myopic understatement. It has been increasingly a burning issue in the community. ) (footnote omitted), quashed, 459 So.2d 1018 (Fla. 1984). 6 By contrast, the countervailing right of a litigant to peremptory challenges -- to exclude potential jurors based on whim or utter speculation of bias -- is based on tradition, and not constitutional mandate. See, e.g., Busby v. State, 894 So. 2d 88, 107, 109 (Fla. 2004) (Bell, J., concurring and dissenting in part); Neil, 457 So2d at 486. This tradition is clearly subordinate to the state and federal guarantees of equal protection and Florida s right to an impartial jury. Thus, Melbourne s protocol correctly favors safeguarding the protections guaranteed by the United States and Florida Constitutions over protecting from meaningful scrutiny, the nonconstitutional tradition of peremptory challenges. B. The Independent Significance of Melbourne s Florida Constitutional Grounds Justify Its Modest Initial Burden. In Traylor v. State, 596 So. 2d 957 (Fla. 1992), this Court recognized the prominence and independent significance of the Florida Constitution in ensuring fundamental rights. The Court noted that state courts and constitutions have traditionally served as the prime protectors of their citizens basic freedoms. Id. at 962. Looking to Florida s Declaration of Rights, the Court declared: The text of our Florida Constitution begins with a declaration of rights -- a series of rights so basic that the framers of our Constitution accorded them a place of special privilege. These rights embrace a broad spectrum of enumerated and implied liberties that conjoin to 7 form a single overarching freedom: they protect each individual within our borders from the unjust encroachment of state authority -- from whatever official source -- into his or her life. Each right is, in fact, a distinct freedom guaranteed to each Floridian against government intrusion. Id. at 963 (citation omitted). Florida courts have demonstrated the primacy of the Florida Constitution s guarantees against racial, ethnic, and gender discrimination in jury selection. This Court broke the nearly impenetrable barrier to discrimination-based jury challenges erected by Swain v. Alabama, 380 U.S. 202 (1965), with the announcement of Neil, 457 So. 2d at , relying solely on the Florida Constitution s Article I, Section 16 (impartial jury), several years before the United States Supreme Court followed suit in Batson by invoking federal equal protection. And, while this Court in Neil immediately recognized the prosecution s standing to invoke these protections, id. at 487, the Supreme Court did not extend standing to prosecutors until six years after Batson, in Georgia v. McCollum. 505 U.S. 42 (1992). Similarly, Florida recognized a bar to racially discriminatory peremptory challenges in civil cases under Article I, Section 22 of the state constitution, years before the United States Supreme Court acknowledged that bar under the United States Constitution. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); City of Miami v. Cornett, 463 So. 2d 399, 402 (Fla. 3d DCA), dismissed, 469 So. 2d 8 748 (Fla. 1985); Johnson v. Florida Farm Bureau Cas. Ins. Co., 542 So. 2d 367, 369 (Fla. 4th DCA 1988), review dismissed, 549 So. 2d 1013 (Fla. 1989). Additionally, while the Supreme Court in Hernandez v. New York, 500 U.S. 352, (1991), declined explicitly to extend Batson to discriminatory peremptory strikes of Latinos, this Court has expressly recognized Hispanics as a cognizable class entitled to Neil protections under the equal protection and impartial jury guarantees of the Florida Constitution. Alen, 616 So. 2d at 454. Consistent with our state s mission of ferreting out discrimination in our legal system, this Court has declared a presumption in favor of an inquiry whenever a suspect peremptory challenge is called to a trial court s attention. 3 In State v. Slappy, 522 So.2d 18 (Fla. 1988), this Court held that any doubt as to whether the complaining party has met its initial burden should be resolved in that party s favor. Id. at 22. The primary purpose for this rule deferring to the objector is practical -- it is far less costly in terms of time and financial and judicial resources to conduct a brief inquiry and take curative action. Valentine v. State, 616 So. 2d 3 Florida s commitment to ending discrimination in the courts also is evidenced by this Court s creation of commissions to study such discrimination and to make recommendations for its elimination. Foster v. State, 614 So. 2d 455, (Fla. 1992) (citing Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission (1990 & 1991); the Florida Supreme Court Gender Bias Study Commission Final Report (1990)) (Barkett, C. J., concurring and dissenting in part). 9 971, 974 (Fla. 1993). This Court has reiterated this presumption in favor of an inquiry in its post-melbourne cases. See Franqui v. State, 699 So. 2d 1332, 1335 (Fla. 1997), cert. denied, 523 U.S (1998); State v. Holiday, 682 So. 2d 1092, 1093 (Fla. 1996). Thus, Florida s peremptory-challenge procedure is rooted in separate and distinct provisions of our state constitution, and serves to conserve our judicial resources while ensuring to all who come before our courts the right to a trial by an impartially-selected jury. And the Supreme Court of the United States has explicitly and repeatedly emphasized that it is for the states to formulate the particular procedures for the implementation of Batson and its progeny. Johnson, 125 S. Ct. at 2416; Edmonson, 500 U.S. at 631; Powers, 499 U.S. at 416; Batson, 476 U.S. at 99 n.24. This Court has chosen, and chosen wisely, the effective and efficient rule established in State v. Johans, 613 So. 2d 1319 (Fla. 1993), and Melbourne. C. Overruling Melbourne Would Defeat This Court s Efforts to Eliminate Racial Discrimination in Jury Selection. The FPAA s position, if accepted by the Court, would both undo this Court s bright-line rule, as announced in State v. Johans and reaffirmed in Melbourne, and promote anew the instability in Florida jurisprudence that those decisions successfully sought to eliminate. In Johans, the Court announced a 10 simplified and uniform approach to rectify the decisional confusion with which the regulation of peremptory challenges had been plagued: 613 So. 2d at Rather than wait for the law in this area to be clarified on a case-by-case basis, we find it appropriate to establish a procedure that gives clear and certain guidance to the trial courts in dealing with peremptory challenges. Accordingly, we hold that a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. The Court declaimed the many attributes of the Johans procedure
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