North FL’s Highest Court REVERSES Cocaine Conviction Over Jury Discrimination

April 23, 2026 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 1st District Court of Appeal ruled that because the trial judge failed to evaluate the “genuineness” of the State’s reason for exercising a peremptory strike on a Black female juror was grounds to reverse the defendant’s convictions and remand the matter for a new trial.

CASE: Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006)

Charge(s): Sale of Cocaine, Possession with Intent to Sell

Outcome: Conviction REVERSED, as the trial judge failed to evaluate the “genuineness” of the State’s dubious justification for using a peremptory strike on a Black female juror.

Jury Selection in Florida

In Florida, jury selection (also commonly referred to as voir dire) is a key aspect of any criminal proceeding. Jury selection allows the State and defense to evaluate the bias(es) of potential jurors to determine if they will render their verdict fairly and impartially – or if they should be excused from service because they may be influenced by something other than the evidence/testimony.

If a party to the case believes that a potential juror is biased and has clearly expressed this in one or more responses during voir dire, they may initiate a cause challenge of that potential juror. A cause challenge occurs when a party to the case argues to the judge that a potential juror is likely to not be fair and impartial (e.g. due to prior experiences/views), and thus, should be sent home.

In the event that a cause challenge is moved for, the other party to the case can either stipulate to the cause challenge (e.g. agree with the moving party) or push back against this. After hearing arguments from both sides, the trial has two options:

• Grant the cause challenge, excusing the potential juror from service
• Deny the cause challenge, allowing the potential juror to remain seated in the venire (for now)

Examples of cases in which an experienced and aggressive Florida criminal defense attorney is likely to make a cause challenge to a potential juror include:

• A potential juror says they will “absolutely” hold a defendant’s silence against him if he decides not to testify
• A potential juror says they will value the testimony of law enforcement over all other witnesses
• A potential juror says they know the victim in the case and feel a tremendous sympathy for them
• A potential juror says something “bothers” them about the defendant and they are very likely to find him guilty

There are two important things to know about cause challenges. The first of these is that they are UNLIMITED in number. The second is that just because a potential juror exhibits apparent bias, does not mean that a cause challenge of that potential juror will be granted. Melbourne v. State, 679 So.2d 759 (Fla. 1996)

This is because there is the potential for REHABILITATION. Rehabilitation occurs when any party to the case (including the judge) questions the potential juror to determine if they are able to set the bias(es) they have expressed aside and be fair and impartial/follow the law. Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997) 

If the potential juror strongly believes their existing opinion(s) will NOT impact their verdict, the cause challenge is less likely to succeed. However, if the potential juror wavers on this point (e.g. says they doubt they can truly be fair/impartial), a cause challenge is very likely to succeed. For more on this, click here.

It is important to note that a potential juror will not AUTOMATICALLY be seated on the final jury just because a cause challenge is denied. This is because there is another type of “challenge” that exists – the peremptory challenge (more commonly referred to as a peremptory strike).

A peremptory strike occurs when a party to the case UNILATERALLY (e.g. without justifying their reasoning to the judge/opposing counsel) excuses a particular juror from service. Most of the time, this is as simple as saying: “Defense exercises a peremptory on Juror #8.”

Unlike cause challenges, however, peremptory strikes are LIMITED in number. In Florida, each party to the case (e.g. State and defense) receives three peremptories in misdemeanor cases, six in non-capital/non-life felony cases, and ten in capital/life felony cases. The trial judge retains discretion to award either party additional strikes if they are requested. For more, click here.

Though peremptory strikes almost always occur without controversy, the discretion of a party to use one of these is not wholly unlimited. The U.S. Supreme Court has made clear that a potential juror CANNOT be peremptorily stricken based on their race, gender/sex, or ethnicity. Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)  

In the event that the opposing party (e.g. non-moving party) believes that a peremptory strike is being improperly exercised on this basis, they are likely to initiate a Neil challenge (otherwise known as a Neil inquiry). This involves the following three-step process:

• #1: The objecting party (e.g. the defense) announces they are performing a Neil challenge of the peremptory strike.
• #2: The State provides the trial judge a race-, sex-, or ethnicity-neutral reason (depending on the basis of the objection) for the peremptory strike
• #3: The trial judge either “buys” the State’s explanation (e.g. finds it is good-faith) and allows the strike – or finds the explanation is pretextual (e.g. B.S.) and denies the strike

Note: The Neil inquiry is also referred to as a Melbourne inquiry, as the Florida Supreme Court affirmed the formal use of this “three-step” test in Melbourne v. State, 679 So.2d 759 (Fla. 1996).

The third step of the Neil inquiry is critical. Florida courts have been clear that a trial judge must indicate, in some form, that they find the State’s “race/gender/ethnicity-neutral” explanation for the strike to be GENUINE rather than pretextual. Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009)

If the trial judge fails to make such a finding on the record, and simply allows for the peremptory strike on the grounds that the State offered a “race/gender/ethnicity-neutral” reason for it, this is REVERSIBLE ERROR as a matter of law. 

In other words, the defendant is entitled to a new trial in the case if found guilty, so long as they also object to the composition of the jury immediately before the jury is sworn. This is because the U.S. Supreme Court has recognized discrimination in the jury selection process automatically violates the right to a fair trial. For more, click here.

In one major Florida case, a defendant was charged with sale and possession of cocaine. During jury selection, the State exercised peremptory challenges of three out of four prospective Black jurors. When the defense challenged these (e.g. initiated a Neil inquiry), the judge simply ruled that the State offered “race-neutral” explanations for the strikes – and thus, they were allowed.

Notably, the judge FAILED to evaluate the “genuineness” of the State’s reasoning. Nevertheless, the jury was sworn – and the defendant was tried and convicted.

On appeal to Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), the defendant claimed he was entitled to a new trial because the judge had failed to determine if the State’s justifications for the peremptory strikes were genuine or “B.S.” The 1st DCA agreed with him and REVERSED his convictions.

Let’s find out why by taking a look at that case – Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006) – and discussing what it means for those in Florida concerned about jury selection.

KEY CASE: Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006)

In Simmons, the defendant (Simmons) was charged with sale of cocaine and possession with the intent to sell or deliver (PWITS). During jury selection in the case, the following occurred:

• The State exercised peremptory strikes of 3 out of 4 Black jurors
• The defense initiated a Neil inquiry to challenge one of the peremptory strikes (a Black female)
• The State replied: “Her husband is a law enforcement officer at Baker Correctional.”
• The defense argued that ironically, this would be a strong basis for the defense to exercise a cause challenge (as the potential juror would seemingly be more likely to side with law enforcement and prosecutors)
• The judge ruled by stating: “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.”
• Just before the jury was sworn, the defense objected to its composition, arguing that the State engaged in discrimination by striking mostly Black jurors
• The trial judge denied the objection, the jury was sworn, and Simmons was convicted

On appeal, Simmons argued the judge’s failure to evaluate the “genuineness” of the reasoning for striking the Black female juror (Campbell) entitled him to a new trial. The 1st DCA agreed with him and REVERSED his convictions. 

Finding the trial judge erroneously accepted the State’s ostensibly “race-neutral” justification for the strike even though it was illogical on its face, the 1st DCA wrote:

“There are no specific words which the court must state to satisfy step three of the Melbourne analysis. Bowden v. State, 787 So.2d 185, 188 (Fla. 1st DCA 2001). In Fleming, this court concluded that by overruling the defense’s objections, the lower court made an implicit finding that the state’s strikes were genuine. Fleming, 825 So.2d at 1029. Similarly, in Bowden, this court looked to the stipulated record which stated “the trial court judge indicated he did not believe the strike was racially motivated.” Bowden, 787 So.2d at 188. In Bowden, this statement indicated the trial court reached step three of the Melbourne analysis and determined the strike was genuine. Id. Unlike Fleming and Bowden, however, the record does not indicate the trial court reached step three of the Melbourne analysis. When the defense challenged the prosecution’s given reason to strike Ms. Campbell, the court merely stated “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” 

“By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis. When appellant raised his objection at the time of the swearing of the jury, the court also solely focused on the race-neutral reasons given by the prosecutor rather than the genuineness. There is no indication genuineness was considered. This problem is exacerbated by the fact that the State’s reason for removing Ms. Campbell raises a question of genuineness by its very nature. The fact that Ms. Campbell’s husband was a law enforcement officer would appear to favor the State. While the reason was race-neutral on its face, it would appear to require further inquiry if the court was attempting to ascertain its genuineness. Being unable to satisfy ourselves on this record that the trial court satisfied step three as outlined in Melbourne, 679 So.2d at 764, we are required to reverse and remand for a new trial.”

Put simply, a “genuineness” evaluation (Step #3 of the inquiry) would have led any reasonable trial judge to conclude that the State’s basis for striking Campbell was PRETEXTUAL (e.g. not legitimate). Thus, Simmons was entitled to a new trial.

In sum, Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006) marks a significant development in Florida’s corpus of case law surrounding discrimination in jury selection. The 1st DCA (North FL’s highest court) held that:

• The State’s “race-neutral” justification for striking a Black female juror was nonsensical, as it was a reason the DEFENSE would want to strike her
• The trial judge’s acceptance of this reason as legitimate, with no questions asked, showed no “genuineness” evaluation occurred
• Because this is REVERSIBLE ERROR, Simmons was entitled to a new trial on the basis that discrimination potentially occurred in jury selection

Florida’s criminal defense community should take note of Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006), as it is a defense-friendly case that can be cited at trial (or on appeal) if there is suspected discrimination during voir dire.

If someone is arrested and formally charged in Florida and concerned about jury selection, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share