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

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

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

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

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

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

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