From the April 2010 Idaho Observer:

Right to a fair trial? Not in Florida!

The right to a fair trial before an impartial jury of our peers is one of the cornerstones of American Jurisprudence. Unfortunately, a great many trial defendants in Florida have been denied the guarantee of an impartial jury for years. This is because the jury selection process used in many Florida courtrooms is not just flawed, it is blatantly illegal!! Over the course of this article I will show:

  1. How the jury selection process in Florida is illegal;
  2. How the use of a legal doctrine known as the “Strickland” standard has rendered complaints about the process inherently unfair;
  3. That the U.S. Supreme Court has ruled that any appearance of potential compromise to the impartiality of a juror or jury must result in a defendant’s Due Process right to a hearing to prove actual bias;
  4. That the Florida courts have chosen to ignore U.S. Supreme Court Law; and
  5. Why they are pressured into doing so

Illegal Jury Selection

The mechanics of the jury selection process in many Florida courts begins with one week of each month being set aside for only jury trials – we’ll call this “trial week.” The Monday morning of trial week is used to select ALL the juries for that week’s trials. This involves a panel of potential jurors coming before each defendant, his/her attorney, and the prosecutor for a question and answer period known as a Voir Dire. Voir Dire is the mechanism with which the attorneys are able to weed out jurors that may be biased to one side or the other. After Voir Dire the attorneys choose the jury for that particular defendant and the judge swears in those jurors. After the swearing in (which is the actual beginning of the trial) the judge sends the jury home until the trial re-convenes later in the week. These jurors know at least the defendant’s identity and charges. Yet they are sent home for 2-4 days with no instructions from the court whatsoever.

This is the age of instant information. Potential jurors have been known to blog prejudicial comments about defendants even before the Voir Dire. Allowing the jurors to be excused without precautionary instructions from the judge is a violation of Florida law – specifically Florida Statute §918.06. Allowing jurors to go home without specific instructions not to converse about or investigate the case, or the defendant, completely obviates the Voir Dire just used to insure that jury’s impartiality. The fact that Florida law specifically prohibits the separation of a jury without an admonition from the court shows the Florida legislature’s intent to protect the right to an impartial jury. Complaints about the process may prompt judges to begin properly admonishing juries before sending them home – not a perfect solution, but at least the trials would be legal. So… what about the thousands (tens of thousands?) of victims already convicted by potentially tainted juries?

The Inherently Unfair Handling of Requests for Judicial Relief

One seeking redress for a wrongful conviction handed down by a potentially tainted jury will usually be forced to seek relief years after his/her actual conviction. This is because defendants are usually oblivious to the trampling of their Constitutional rights (or can’t keep up with it all!) and attorneys are simply following the judge’s procedure. This lack of objection precludes the error from review on direct appeal. This, in turn, forces the victim to raise the issue as an ineffective assistance of counsel claim after the direct appeal is finally done. At that point the claim is subject to a standard of review that requires more than simply identifying an error or even a violation of law. The victim must also show that the error was so serious that the outcome of the trial would probably have been different. The prejudice suffered must be proven, not simply alleged or assumed. This is known as the “Strickland” standard of review. This means that the victim must be able to show that at least one juror acted improperly (did an internet search for prior convictions, for example) and that that juror’s actions influenced the verdict. Oh, did I mention that the victim is prohibited from contacting the jurors and could face further prosecution for doing so?? Let’s see, all I have to do to get a new trial is prove one of my jurors was biased – without actually contacting any of the jurors? Yeah – That’s fair!!

Common sense would dictate that an allegation of potentially compromised jurors would result in some sort of hearing to determine if any actual bias exists or a new trial if such a hearing is never held.

Surprise, surprise, the U.S. Supreme Court says the same thing!

The Supreme Court Weighs In

The U.S. Supreme Court has ruled that an allegation of potentially compromised jurors requires a hearing to determine actual bias. The high court has actually identified the need for a hearing as a due process right. Case cites include:
  1. Dennis v. U.S. 339 U.S. 162, 70 S.Ct. 519 (1950): “…Preservation of the opportunity to show actual bias is a guarantee of a defendant’s right to an impartial jury…” 70 S.Ct. at 523
  2. Smith v. Phillips 455 U.S. 209, 102 S.Ct. 940 (1982): “This court has long held that the remedy for allegations of juror partiality is a hearing at which the defendant has the opportunity to prove actual bias…” 102 S.Ct. at 945
  3. “…Due process does not require a new trial every time a juror has been placed in a potentially compromising situation … due process means a jury capable of, and willing to, decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made in a hearing…” 70 S.Ct. at 946

The fact that our highest court recognizes the need for an opportunity to show actual bias seems encouraging. Unfortunately, these hearings rarely, if ever, occur. Because nobody preserves the issue for direct appeal it is often 2, 3 or even 5 years before a judge rules on the claim. Ordering a hearing some 3-5 years after the fact is futile, but what of the victim’s due process right to such a hearing? Let’s turn to the high court once more: Roe v. Flores-Ortega 120 S.Ct. 1029 (2000):

“… In Cronic, Penson and Smith we held that the complete denial of counsel during a critical stage of judicial proceeding mandates a presumption of prejudice … the even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time, and to which he had a right, similarly demands a presumption of prejudice …” 120 S.Ct. at 1038.

The hearing in question certainly qualifies as a judicial proceeding, the denial of which may warrant a presumption of prejudice.

To review, we know that many, many trials in Florida have been held with potentially tainted juries, that the courts handling these complaints create a “catch-22” situation for the victim seeking relief and that this is contrary to U.S. Supreme Court law. Supreme Court law explicitly calls for a hearing to determine actual bias. In the absence of such a hearing the victim may be entitled to a presumption of prejudice which would result in a new trial.

Florida Stands Alone

Unfortunately, all this appears to mean nothing in Florida. I can personally attest to the fact that all of the foregoing has been presented to the Florida courts with no relief and no appellate court opinion to justify the defiance of U.S. Supreme Court LAW. Because opinions are so rarely issued by Florida’s appellate courts there is almost never an opportunity for Florida’s Supreme Court to weigh in.

Why? Why don’t the courts just give the required admonition? Perhaps they want tainted juries so as to imprison as many victims as possible. Why don’t attorneys stop, or at least object to, the process? Perhaps because most of them are public defenders who are paid by the state and therefore not on the victim’s side at all. Why would even the appellate courts defy controlling U.S. Supreme Court law that is directly on point to the issue? Perhaps because they are under enormous pressure to keep the prisons full. I believe the answer, as disgusting as it may be, is really simple: the love of money.

Florida’s Prison Cottage Industries

There are about 70 “major” prisons in Florida. These prisons are nearly all located in tiny rural communities where the prisons are the backbone of the local economy. Grab an atlas – I’ll wait… OK, now see if you can find some of these Florida towns: Century, Santa Rosa, Wewahitchka, Sneads, Bonifay, Blountstown, Cross City, or Avon Park. Look at the populations of these towns and consider the following. The average prison provides about 300 jobs (500 if there is an annex) and let’s average the salary out at $45,000… that’s gonna pump $13.5 million into the local economy. A community of 3000 would see at least 10% of the labor force employed at the prison (and that’s figuring 3000 of working age). Given an average rate of unemployment (currently 10-11% in Florida) this town would be devastated if the local prison closed. Imagine 20-25% of the work force suddenly idle. A state that is already broke can ill afford the flood of assistance these towns would need. If the Florida Department of Corrections uses only $1billion (less than half) of its annual budget to operate these 70 prisons; the economic impact on these tiny communities is some $14.3million.

These numbers are easy to verify and even these off the cuff estimates paint a very clear picture: the Florida courts are under INCREDIBLE pressure to keep these prisons full.

Riddle Me This

Florida currently warehouses over 100,000 souls in these prison cottage industries. The illegal jury selection process is only one small element in the grand scheme to continue growing Florida’s prison population. Given the above, would anyone truly be surprised if 10-20% of Florida’s prisoners were wrongfully convicted? As many as 20,000 men and women taken from their lives and loved ones just to prop up the cottage industry supporting these small towns is unconscionable. So riddle me this… What are we gonna do about it? I eagerly await your reply.

Jay Larson 418931
Avon Park C1
PO Box 1100
Avon Park FL 33826-1100

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