The three judges on Florida’s Fourth District Court of Appeal, which last month ordered the retrial of the man convicted of shooting to death Central Beach homeowner Brian Simpson during a November 2011 burglary, did the wrong thing for the right reasons.
They were right to express concern that the jurors’ attitudes about interracial violence might’ve impacted their decisions during Henry Lee Jones’ murder trial in late 2014.
They were wrong to seize upon a minor issue – with no evidence of racial prejudice presented – to toss the jury’s verdict in a case that had nothing to do with race.
As Chief Assistant State Attorney Tom Bakkedahl, the lead prosecutor in the case, said after the appeals court’s ruling: “There were no racial overtones; it was a crime of opportunity. It was completely inappropriate to inject that into the case.”
Yet, that’s exactly what the West Palm Beach-based appeals court did, ruling on April 12 that Circuit Judge Robert Pegg, who presided over the three-week trial, erred when he prohibited Jones’ attorney from “questioning prospective jurors regarding their attitudes on interracial crime.”
In so doing, the judges set a legal precedent that injects race into all cases in which black defendants are charged with committing crimes against white victims.
But the ruling’s reach doesn’t end there.
If it hasn’t happened already, you can bet your bail money that defense attorneys around the state will attempt to expand this ruling to cover criminal cases in which defendants and victims are not only of different races but also of different creeds and ethnicities.
“Different genders, too,” said Ryan Butler, an assistant state attorney who handles capital post-conviction cases in our circuit. “The court gave great latitude to defense attorneys to ask questions that even remotely address bias by potential jurors.”
The appeals court did far more than that: The ruling essentially makes it mandatory that all potential jurors – in all such cases – be questioned about their attitudes on crimes involving racial, religious, ethnic and gender differences between defendants and victims.
Now, if trial judges prevent defense attorneys from asking such questions during jury selection, as the appeals court said happened here, this ruling provides grounds for appeal.
And if defense attorneys fail to ask such questions during jury selection, this ruling provides grounds for defendants to challenge their convictions based on ineffective assistance of counsel – though winning such a challenge would be difficult.
“Actually, to argue ineffective counsel in a case like this, you must prove two things – that your attorney messed up and that you were prejudiced as a result of that mistake,” Butler said. “And it’s your burden to show the prejudice.
“You’d have to prove a juror that was allowed to sit on the jury was biased, which means you’d need a juror to come in and say, ‘Yeah, I’m a racist,'” he added. “Just the potential for prejudice isn’t enough.”
Still, as we’ve seen in this case, it’s often difficult to predict what appellate courts will do.
Certainly, no one in the local State Attorney’s Office expected Jones’ seemingly solid conviction to be reversed. Prosecutors presented physical evidence and accomplice testimony to jurors, who needed less than 90 minutes to reach a verdict that resulted in consecutive life terms for first-degree murder and armed burglary. And this can’t be the first time such an appeal has succeeded.
So why leave it to chance?
Why not legally require that all potential jurors in these cases be questioned about their attitudes regarding crimes, especially violent crimes, in which defendants and victims are of different races, religions, genders or ethnicities?
True, it would bog down and make more difficult an already-challenging jury selection process, and likely would extend the length of trials. But, given the appeals court ruling, such questioning could prevent similar reversals and costly retrials that force families, such as the Simpsons, to relive painful memories.
It also might prevent bigotry and bias from infecting the jury room and lessen the likelihood of verdicts based on something other than the evidence.
Probably, though, it won’t.
The appeals court’s ivory-tower opinion, as naïve as it was well intended, won’t accomplish what the judges hope to accomplish – because it’s unlikely that potential jurors will publicly confess their prejudices.
Think about it: How many of our white neighbors would walk into a courtroom filled with strangers and admit he or she wasn’t capable of fairly judging a black defendant accused of committing a violent crime against a white victim?
Some of them might not even be aware of their racist, sexist or xenophobic leanings.
Asking the question might make people feel better about the process but it doesn’t guarantee an honest answer.
Fact is, juries will never be what the Fourth District panel wants them to be. People aren’t perfect. Neither is our legal system.
Even appeals court judges make mistakes.
Three of them made one last month, and unless the Florida Attorney General’s Office can convince them to grant a rehearing – at which the state would challenge the judges’ ruling on Jones’ appeal – Simpson’s family will be asked to endure another trial.
“I think the case is probably going to have to be retried,” Butler said, “even though there wasn’t one shred of evidence that those jurors were biased.”
If the Fourth District judges stand by their ruling – they almost certainly will – Jones will be returned to Indian River County, where he’ll get a new trial with a different jurist, probably Circuit Judge Cynthia Cox, and a different jury.
And when that trial begins, probably in a year or two, you can be sure that Cox, or whatever judge is on the bench, will abide by the appeals court’s ruling and afford Jones’ attorney every opportunity to question potential jurors regarding their racial prejudices and attitudes about black-on-white crime.
That’s the right thing to do, and for all the right reasons.