(CN) - A defense attorney cannot use a peremptory challenge based on how a juror was looking at his client, a Florida appeals court ruled.
Andre Howell challenged a conviction based on jury selection. He claimed that juror Maria Bermudez should have been dismissed based on the way she looked at him.
The trial judge denied Howell's motion to dismiss Bermudez, citing the fact that the judge did not see the look.
Judge Ramirez of the 3rd District Court of Appeal upheld the conviction, citing the following passage from the Florida Supreme Court's 2003 decision in Dorsey v. State: "A potential juror's non-verbal behavior, the existence of which is disputed by opposing counsel, and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge."
"Consequently," Ramirez wrote, "the proffered reason was not gender or ethnically neutral, and the judge properly denied the challenge."