Reading the Criminal Appellate Opinions
Towards the end of every week I read the criminal appellate opinions which are released by Florida’s five (5) District Courts of Appeal and the Florida Supreme Court. Lawyers who do NOT read the opinions are committing malpractice. The general public would be SHOCKED to learn how many lawyers – well regarded lawyers – do not do so. That is probably the subject for a future column and I digress…
The appellate opinions generally focus on one aspect of criminal law or another in any given case. Reading the opinions (or summaries) can get boring on a Friday afternoon as the same points are repeated week-in and week-out. Burglary tools are only burglary tools if they’re intended to be used for entry. Youthful offender sentencing must be completed by the defendant’s 21st birthday. Complaining witness’ estimate is insufficient to support a restitution amount. Minimum mandatory means minimum and mandatory. These truisms are (or should be) well ingrained into the minds of criminal practitioners. Reading about 35 opinions per week which simply re-affirm what one has already learned can get dreary.
So it’s a rare event that, while reading the opinions, I sit up in my chair and proclaim “Holy !@#$” out loud. Just such a moment took place last Friday when I read the Florida Supreme Court opinion in Matarranz v. State, 38 Fla. L. Weekly S687 (Fla. 9/26/2013).
I will get to why this opinion is so revolutionary in bit. First, we need a little background.
Every experienced criminal defense lawyer has been in a jury selection and listened to a potential juror explain why he or she is what we might call a “damaged juror.” A “damaged juror” is an individual who, through his or her life incidents, has experienced an event (or events) which simply makes the person unfit to serve on the jury in the case at hand. Being a “damaged juror” does not mean that the juror has done anything wrong, often quite the contrary.
For instance, in a domestic violence case, I have had a potential juror explain how her brother was in the process of divorcing his wife when the wife’s father (brother’s father-in-law) ambushed the poor brother outside of his children’s’ daycare and murdered him with a firearm. The woman on the panel didn’t do anything wrong – her brother and their family were the victims of a horrible criminal act. Almost all rational thinkers would accept the proposition that this particular woman, based on her life experiences, would be better suited to serve on another jury and not the jury of the domestic violence defendant seated to my left.
However, in contravention of what rational thinkers would conclude, Florida trial courts and prosecutors have routinely been able to goad the “damaged juror” into saying that, despite her tragic and life-changing experiences, she “could be fair.” Such a statement or “rehabilitation” was legally sufficient to keep the juror on the panel and force the defense to use a precious preemptory strike if it wished to remove this person who was obviously biased against the defendant.
Indeed, in my example above, the Assistant State Attorney did get the woman whose brother had been murdered to say that, regardless of what took place, she could be fair if she were to sit on my client’s jury. In that case an experienced trial judge (and former prosecutor) granted my motion and dismissed the juror for cause.
Mr. Matarranz was charged with murder and burglary. The trial court, after reading the charges to the prospective jurors, asked who among the group felt as if he or she could not be a fair juror. The “damaged juror” indicated that she had a problem with burglaries due to her life experiences as a victim of a Christmas Day burglary as a child (her presents were apparently stolen when she was a kid). Not only did the damaged juror talk about her past negative experiences as the victim of a burglary but she explicitly and repeatedly stated that she could not be fair to the defendant due to her experiences.
The trial court and the State repeatedly inquired of this damaged juror until she eventually said that she could put her experiences behind her and sit as a fair juror in Matarranz’ case. When the time came to select the jurors the defense moved to strike the damaged juror for cause – meaning because she was a damaged juror – she would not be suitable as a juror for the Matarranz trial. The trial court disagreed and forced the defense lawyer to use one of his valuable preemptory strikes against the juror. The defense lawyer (showing his experience/skill/knowledge) preserved the issue for appellate review and the Florida Supreme Court eventually reversed Matarranz’ conviction.
The opinion requires the trial court to excuse a juror who, as a result of “personal life experiences,” expresses “fixed opinions and firmly held beliefs.” Such opinions and biases, the opinion holds, are “immutable” and cannot be rehabilitated by counsel’s (or the trial court’s) questions. The opinion requires trial courts to assess a juror’s ability to be fair and impartial based on the genuineness of his or her statements, not on whether the juror has reached a sufficient level of discomfort to reject or conceal genuinely-held feelings. The opinion prohibits the trial court and the parties from turning damaged jurors into acceptable jurors by way of persistent questioning.
The opinion is certainly a breakthrough in Florida law regarding jury selection. The opinion quotes Atticus Finch and engages in a barb trading with a spirited dissent. The opinion reads like an “emperor has no clothes” moment for all lawyers who have fought to keep obviously damaged jurors off of panels in Florida courts. It is a rare, valuable “Holy !@#$” moment in a good way. Florida criminal law has for a long time been smothered under a tide of technicalities and avoidance arguments which have foreclosed common sense evaluation of the facts. The tide of technicalities/avoidance more frequently smothers fair play obligations on the part of the executive branch.
Hopefully this opinion is an indication that the unfortunate toxic tide is receding and that lawyers might return to fact evaluation and common sense fair play arguments in the near future.