CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 17, 2004

Florida Supreme Court Creates New Rule On When Criminal Defendant is Entitled to New Trial After He is Forced to Exhaust Preemptory Challenges on Juror Who Should Have Been Removed for Cause

The latest issue of the BNA Criminal Law Reporter summarizes the important new Florida Supreme Court decision, Busby v. Florida, as follows:

"A defendant forced to spend one of his peremptory challenges on a juror who should have been removed for cause is entitled to a new trial without showing actual prejudice from the expenditure of the peremptory challenge so long as he exhausted all of his peremptories and a juror to whom he objected was seated, the Florida Supreme Court ruled Nov. 4. The court explained that Florida law diverges from federal law as expressed in United States v. Martinez-Salazar, 528 U.S. 304, 66 CrL 325 (2000), which held that when a federal trial court erroneously refuses to remove a potential juror for cause, the defendant must choose between using one of his allotted peremptory challenges to remove the juror, or waiting to challenge the for-cause ruling on appeal of a conviction. (Busby v. State, Fla., SC02-1364, 11/4/04)

The defendant was charged with first-degree murder in the death of a fellow inmate. One of the prospective jurors was a former correctional officer who had worked on death row. In voir dire, he gave what the court described as "very equivocal responses" to "several critical questions" seeking to gauge his ability to be impartial.

The trial court denied the defendant's for-cause challenge to the venireperson, and further denied his request for additional peremptory challenges. The defendant was obliged to use up one of his peremptory challenges in order to remove the venireperson, and he ultimately exhausted all of his peremptory challenges. He identified an empaneled juror, whose son worked as a correctional officer, as an objectionable juror whom he would have removed with a peremptory challenge if he had had any remaining.

The defendant was convicted and sentenced to death. He argued on appeal that the trial court committed reversible error in denying the for-cause challenge with respect to the venireperson whose acknowledged biases created reasonable doubt as to his fitness to serve.

In a per curiam opinion, the state's highest court agreed with the defendant and ordered a new trial."  For the full article, click here.

Mark Godsey

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This lawyer drew two (or more) people with a connection to corrections in one jury panel? It sounds like this must be a town where the prison is the major employer. Maybe he should have gone for a venue change in the first place.

Posted by: markm | Nov 17, 2004 12:36:38 PM

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