As I celebrate my fourth decade year as a licensed Florida attorney, I find myself reflecting on what kind of contributions I have made to my chosen profession and society in general. While I certainly could have done much more, I am very proud of one fascinating case that I handled in the early 1990’s. This is the story of Powell vs. Allstate Ins. Co. 652 So.2d 354 (Fla. 1995).
This case began as a very routine and innocuous motor vehicle accident negligence case. I was in my early thirties, having practiced law for less than ten years at that point. I already had considerable experience handling these types of cases and when it became apparent that this case would go to trial, I felt very confident in my capabilities, having conducted numerous jury trials in the years leading up to this case.
The accident itself was straightforward and liability was clear. Mr. and Mrs. Powell were legally stopped in traffic when a distracted driver rear-ended them at a high rate of speed. The only real dispute was over how much money was needed to fairly compensate Mr. Powell for his injuries. Because the at-fault driver was uninsured, the case proceeded to trial against Allstate Insurance Company, the Powell’s uninsured motorist carrier (“UM”).
Mr. and Mrs. Powell were of Jamaican ancestry. They were dark-skinned U.S. citizens. The all-white, six-member jury returned a verdict after 8 hours of deliberations which was for approximately $10,000.00, considerably less than the amount I had asked for in my closing arguments.
Although I was disappointed in the verdict, I was satisfied that my clients had at least had their day in court and we had come well-prepared. The day after the verdict, I received a phone call that would change my professional life forever.
One of the six jurors that decided the Powell case called me and was very emotional. She explained that she could not remain quiet about what had transpired during the jury deliberations. She explained in exasperating detail how the Foreman and other jurors were consistently making inappropriate racial jokes and using the N-word during their open discussions. My brave juror described how one juror compared Mr. Powell to a “chimpanzee” and the other jurors howled with laughter. A joke was shared with the group explaining how a driver scores more points for hitting a black pedestrian vs. a white one. I recall listening to this distressed juror tell her story and feeling as if I was somehow transported back to the deep South of the 1950’s.
After hearing the juror’s story, I immediately contacted the Honorable Edward Jackson, now deceased, and the very capable Circuit Judge that presided over our trial. Judge Jackson agreed to an interview of our whistleblower juror and immediately scheduled a hearing to allow participation by myself and the Allstate attorney.
During her interview, our juror bravely and convincingly described in great detail all the many salacious and outrageous details of those comments, racial slurs and inappropriate discussions that occurred throughout deliberations. Although Judge Jackson was polite and accommodating, he steadfastly denied my request for interviews of the entire jury panel. I felt that the statements of our one juror were very persuasive and that those jurors accused of misconduct deserved a chance to respond to these very serious allegations. No such interview was allowed and my alternative request for a new trial was summarily dismissed by Judge Jackson.
My first appeal was filed with the Fifth District Court of Appeal in Daytona Beach. The Fifth DCA hears all appeals of circuit court cases in Brevard County. Simply put, the appeal asked that the Powell case be returned to Judge Jackson for the sole purpose of conducting an interview of all remaining five jurors. Alternatively, the Fifth was asked to conclude that a new trial was appropriate for the Powells based on what we had already heard from our sole juror interview already on record.
Appeals to the Fifth DCA are usually decided by a three-judge panel based on the written briefs filed by the parties. On some occasions, the Fifth will request “oral argument” to be presented by the attorneys for the parties involved. Although I had requested the opportunity for oral argument, no such opportunity was forthcoming.
In a 2-1 decision, the Fifth DCA agreed with me and ordered a full, comprehensive interview of all jurors with Judge Jackson to thereafter determine if a new trial should be ordered based on his interpretation of these interviews. The Powells and I felt vindicated by this enlightened decision but our satisfaction was short-lived.
Shortly after the decision by the Fifth DCA, while the time for Allstate to appeal was still available, Judge Jackson wrote an unsolicited letter to the esteemed three-judge panel that had ruled in our favor urging them to revisit the law and reconsider their decision. Judge Jackson was clearly unhappy with their decision to overturn his earlier decision denying further jury inquiry.
Remarkably, with no appeal filed by Allstate Insurance Co., and presumably in response to the unprecedented letter from Judge Jackson, the Fifth DCA chose to revisit their earlier decision, “en banc.” En banc is a legal term used to refer to a case heard by all the judges of a particular court. In other words, the Powell case was now being reviewed by all nine judges sitting on the Fifth DCA rather than the original three-member panel. Neither attorney had requested this. The Fifth chose to review their own Order on their own accord.
Remarkably, in a 5-4 Decision, the Fifth decided to affirm the original Judge Jackson Order denying the Powells a full panel interview of the remaining jurors and/or their request for a new trial. Once again, the Powells and I found ourselves without any chance of obtaining a new trial, hopefully with a six-member jury which did not harbor such base and ugly prejudices.
The chances of convincing the Florida Supreme Court to review a District Court Opinion is nearly zilch. The Supreme Court enjoys tremendous discretion in picking and choosing which cases it shall review and I knew the odds were against me and my clients. I had to try. I was very invested in this case, not only in terms of my uncompensated time, but on a very emotional level for me as well. I simply could not let this one go.
Remarkably, the Florida Supreme Court accepted jurisdiction to decide the Powell case. Extensive brief-writing was ordered and followed by the Court scheduling Oral Arguments. The Associated Press picked up on the story and suddenly there was both nationwide and worldwide attention to my case. In the weeks leading up to Oral Arguments in Tallahassee, Florida, newspapers all over the country and in Europe were writing stories about this case of outrageous racial injustice.
Suddenly, I was in the middle of my own “15-minutes” of fame. I was interviewed extensively by newspapers all around the country. I was appearing on local T.V. shows for panel discussions. The Powell’s story was given a lengthy segment on the CBS Evening News with Dan Rather and I was interviewed “live” on The Morning Show by Paula Zahn. For reasons I do not fully understand even today, the country was captivated by this case.
Of course, all I wanted for my clients was another day in court with a new, hopefully unbiased, jury. It seemed like such a simple request but the law was not really on our side. As in most jurisdictions, Florida is very protective of the rights of deliberating jurors. The sanctity of the deliberations are jealously protected and jurors should not be concerned that their secret discussions during deliberations will be scrutinized. The Florida Supreme Court, in the Powell case, was being asked to make an exception.
The morning of Oral Arguments was exhilarating. As young as I was, I felt incredibly confident and comfortable. I was prepared like I had never been prepared before. My arguments to the 9 Justices was fairly straight-forward. While jurors may well harbor prejudices and bias in their hearts, once these overt biases are openly shared with other jurors during deliberation, there is simply too great a risk that these terrible biases will adversely affect the panel. While the Constitution may not regulate all biases, it does speak very clearly to the issue of “race.” The Court concluded that, “we find the conduct alleged herein, if established, to be violative of the guarantees of both the federal and state constitutions which ensures all litigants a fair and impartial jury and equal protection of the law.”
With Justice Harry Lee Anstead writing the Decision, the Florida Supreme Court rendered a unanimous decision in favor of the Powells. Judge Jackson was ordered to interview the entire panel and, if he found reasonable proof of misconduct, he was to order a new trial. Once we were sure that the opinion was “final” and could not be withdrawn, the Powells settled their case with Allstate negating the need for further interviews and proceedings.
When the Florida Bar Journal magazine interviewed Judge Anstead at the time of his retirement, he identified the Powell case as one of his most cherished cases. The magazine quoted Anstead as saying, “here we are still fighting that battle in the beginning of the 21st century. But how important that is to be able to say that in a court opinion that contrasts sharply with some of those opinions we had to apologize for in the late 1950’s and 1960’s. What an incredible privilege of this court to have that opportunity.”
Mr. Powell has since passed away. I think of him and his lovely wife often. I cannot imagine how disenchanted they must have been with the revelations of our brave juror that came forward. However, I am so proud that, with my assistance, the Powells were able to see that our Country is evolving and positive changes were occurring. I was so proud to be a part of that process.
I continue today to represent the interests of people injured due to the negligence of someone else. I still love my work and especially relish the opportunity to help those that usually have very little money and often feel so helpless squaring off with big insurance companies. I hope I can continue doing this for many more years.