January 9, 2020 Florida Supreme Court opinion

Preservation

Does the U.S. Constitution’s Equal Protection Clause prohibit religious-based peremptory challenges during jury selection? We may never know, as the question was narrowly avoided today when the Florida Supreme Court decided, in State v. Pacchiana, that the issue was not properly preserved for appellate review. How specific must an objection be? It seems the answer is, in some cases, more specific even than the trial court needs to determine the nature of the error.

At the beginning of Pacchiana’s murder trial, the State used a peremptory strike on a juror who was both black and a Jehova’s Witness. After the defense asked for a race-neutral reason for the strike, the State and the judge both discussed the juror’s religion, with the trial court judge going so far as to say, “[I]t would almost be malpractice for a prosecutor to let someone on the jury like that.”

We all know how difficult it is to preserve this type of challenge. First, the defense must make a timely objection to a peremptory strike of a member of a “distinct racial group” and ask for a facially race-neutral reason for the strike; next, if a facially race-neutral reason for the strike is given, the defense must object again before the jury is sworn in and, in addition, must tell the court that the defense is challenging the factual assertions supporting the strike. Thus, two or even three different objections must be made to preserve such a challenge.

In this case, the Fourth District Court found that the issue was preserved because the defense asked for a race-neutral reason for the peremptory strike and then refused to agree to the jury. Importantly, the Fourth District found that striking a black juror for being a Jehova’s Witness was not, in fact, a facially race-neutral reason. Thus, the court reasoned, there was no requirement to challenge the factual basis of the strike. Nevertheless, the court found that the defense did challenge the basis of the strike by “objecting to the legitimacy of the reason given” for the strike—that the juror was a Jehova’s Witness, and again by arguing that there was no race-neutral reason. Then, on top of this, the defense filed a motion before the jury was sworn challenging the strike as improperly based on religion. After the defense jumped through every hoop, and then one, the Fourth District found that there was “no doubt” the issue was preserved.

In ruling on the merits, the Fourth District found that the juror repeatedly maintained that her religion would not prevent her from following the law or convicting. Yet the State and the trial court judge both expressed reservations based on issues with the juror’s religion. The Fourth District ruled that the proposed reasoning was not facially race-neutral to the extent that it was based on vague assertions as to the prosecutor’s years of experience dealing with Jehova’s Witnesses as jurors. Such verbal gesticulations have for a long time been rejected as attempts to make an end-run around the requirement to produce valid race-neutral reasons for striking a juror. Then, the Fourth District ruled that the strike unconstitutionally discriminated on the basis of religion, as the reasoning was expressly based on the juror’s membership in a religious group. Accordingly, the court reversed and remanded for a new trial.

But the Florida Supreme Court found that the challenge to the religious-based reasoning was not preserved, as the contemporaneous objection had only requested a race-neutral reason for the strike. Incredibly, in so ruling the court found that the defense’s assertion, “That’s a religious based strike,” was not “a clear and specific legal objection to the constitutionality of the strike based on religion.” It is difficult to imagine what else the defense could have meant. The court also found that the defense’s motion, filed after voir dire, was insufficient to preserve the issue when there had been no valid contemporaneous objection. The court then remanded to the Fourth District, leaving that court to determine whether its other reasons for reversal and remand for a new trial were on their own sufficient.

Justice Labarga, however, wrote a strong dissent, reasoning that the purpose of the contemporaneous objection rule is to place the trial court “on notice of a possible error” and to “give the court the opportunity to correct it.” In this case, Labarga noted, not only did the defense specifically mention religion in its objection, but both the trial court judge and the State discussed whether the U.S. Supreme Court’s precedent prohibiting race-based discrimination in jury selection should be extended to encompass religious discrimination as well. In short, there is no doubt the trial court was put on notice of the alleged constitutional violation, because the trial court expressly declined to extend the existing constitutional protections into the realm of religion.

So the trial court was aware of the constitutional nature of the objection and ruled on the constitutional question, thus satisfying the principles that underlie preservation, and yet the majority found that because the defense did not specifically mention the constitutional nature of the alleged error when first objecting, the issue was not preserved. As far as this author is concerned, this opinion represents a win for formalism and a loss for common sense.