Mimesis Law
14 August 2020

Debate: Sorry, Defense Lawyers Shouldn’t be Racist Either

November 15, 2016 (Fault Lines) — Ed. Note: After the fascinating reverse Batson question arose, should a criminal defense lawyer use peremptory challenges to strike jurors based on race if it was in the defendant’s interest, we charged Caleb Kruckenberg and Josh Kendrick to debate the question. Here is Caleb Kruckenberg’s argument:

Following last week’s post calling bullshit on juror composition shenanigans in South Carolina, Joshua Snow Kendrick posed an interesting question about a defense lawyer’s obligation to his client. “Should the defense strike jurors based on race if they can get away with it?”

Unequivocally, the answer is no. Racially motivated removals from a venire are absolutely wrong and should never happen. Defense attorneys don’t get a special pass just because they are trying to keep their client out of jail.

To understand why racial bias in the use of peremptories is bad, we should start with an understanding of what this question assumes. Remember that peremptory challenges can be exercised for any other reason, no matter how stupid or ridiculous. If a lawyer doesn’t like a juror’s haircut or outfit or membership in the KKK, he can always kick him off the jury, even if that juror gives the “correct” response to questions about fairness and impartiality. Using peremptories “based on race” assumes that, all things being otherwise equal, when deciding between two potential jurors, the defense attorney picks the one that conforms to a particular racial preference.

In this particular scenario, using racial preference is wrong. Even for a defense attorney.

First, using racial preference in removing a potential juror is against the rules.

The Supreme Court has held repeatedly that the equal protection clause prohibits purposeful racial discrimination in jury selection.

The Court also held in Georgia v. McCollum that this rule applies equally to defense attorneys because racially discriminatory jury selection “undermine[s]” “public confidence” in the rule of law. This “overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause.” Id. “Be it at the hands of the State or the defense, if a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice.” Id.

McCollum also reminded us that the rule doesn’t exist just to protect a defendant’s right to a fair trial. It exists to allow jurors to serve without being subject to racial discrimination.

A defendant’s right to a fair trial doesn’t outweigh the jurors’ equal protection rights. The whole point of keeping discrimination out of jury selection is to maintain actual fairness. A defense attorney trying to use race would be trying to exploit unfairness to benefit his client. As the Court said, “It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race.”[1]

Because it is unconstitutional for a defense lawyer to use peremptories based on race, it is prohibited for a lawyer to do it anyway. We take oaths as attorneys to uphold the Constitution of the United States, which means even the parts that limit what defense attorneys may do. Rules of professional conduct also explicitly prohibit disobeying binding rules of law.

Of course, since we are talking about criminal defense lawyers, something being against the rules probably isn’t enough.

Using racial bias in jury selection, even if you can get away with it, is also wrong on a deeper level.

Instinctively we like to think that acquittals are about protecting the rights of the downtrodden and the politically powerless. Often that’s the case (maybe almost always.)

Sometimes it isn’t though. “Discriminatory acquittals” are where defense lawyers seek jury nullification as a means of enforcing racial discrimination. The Emmett Till case may be one of the most egregious examples. Till was a black 14-year-old who was lynched in Mississippi for the crime of talking to a white woman. His killers’ trial defense consisted of picking an all white jury and arguing that acquittal was necessary to protect “Anglo-Saxon” values. The ensuing not guilty verdicts were a clear message to blacks about what justice meant for them.

Discriminatory acquittals have real impacts on society beyond their individual cases. Lynchings were about racial intimidation and protecting the rules of segregation. Discriminatory acquittals were about putting state approval on such violence. Overt racial bias in jury selection is a way to enforce discrimination in a broader context and insulate crimes against minorities.

It isn’t really much of a stretch to compare current events with this legacy.

Michael Slager shot and killed Walter Scott when Scott was running away from him. Scott was unarmed and black, and was wanted for the crime of not paying child support.

Why? What justified that act?

Slager was enforcing the rule that white police officers must be obeyed and there is a penalty for blacks who run.[2] And yes, Slager’s whiteness and Scott’s blackness is relevant to the message of the act, but not the way we should adjudicate it. If Scott was white too, it is doubtful that anyone would hesitate to call his actions “murder.” But Scott’s blackness makes it acceptable to talk about his failure to pay child support, and suggest that he somehow deserved to be murdered for his disrespectful act of disobeying a white officer.

This is all bad enough, but the use of racial motivation in jury selection is arguably more important. If jury selection is based on race, and nullifies the prosecution as a result, this is an overt message to minorities about racial justice. Just like Till, keep in line or you will be killed.

But back to the issue. What if a defense lawyer can get away with it? What if he can convince the judge that he really isn’t being discriminatory, even though he is?

In some ways, the disgusting message sent by a discriminatory acquittal gets amplified in such circumstances. Winks and nods aren’t fooling anyone. We all know what’s going on. When defense lawyers play those kinds of games and get away with it, the message to the community is obvious. “Justice isn’t for you. It is for us.”

That’s obviously not justice.

Rebuttal: Every decent criminal defense lawyer has done something that the public at large might deem immoral, or even despicable, on behalf of his client’s interests. Whether it is trying to make an alleged rape victim look like a liar or playing games with procedural rules, one can’t really do this job effectively if popular sentiments of fairness govern.

There are lines that we cannot and should not cross, however. This is true even if we can be 100% sure that we will get away with it.

Batson’s rules are easy to circumvent, and defense attorneys can be pretty certain that they will get away with breaking the rules. Indeed, what Josh calls making a “tough call to win,” is really about avoiding the clear limits of Batson by coming up with fake “good reason[s]” to cover “race-based choices for his client’s good.”

But this is a line we cannot cross for our clients. If an attorney’s actual motives are discriminatory, it is against the rules, and it is therefore a violation of the rules of ethics.

Maybe this is an arbitrary line, and maybe from a normative perspective the threat of discriminatory acquittals is outweighed by the distinct evils of mass-incarceration. Maybe there should be some sort of reverse-Batson affirmative action that allows race-based excusals on behalf of minorities.

Unfortunately, that isn’t our call. The law prohibits this kind of discrimination, and we must respect that, because we must respect the system in which we participate.

[1] These rules also apply with equal force when a defense attorney tries to strike white jurors on behalf of a black defendant. Racism is racism.

[2] Slager is currently on trial and has not been convicted of anything. Maybe it is too early, or inappropriate, for me to comment on what I believe to be his factual guilt. Well, I watched the video. You should too. The question is which crime he committed, not whether he committed one.

5 Comments on this post.

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  • Richard Kopf
    15 November 2016 at 6:00 pm - Reply


    Of course, you are correct that the law (according to Justice Blackmun and a unanimous Court) prohibits a CDL from striking a juror on the basis of race.

    But, I am realist and the Court is not. One way a realist tests the Supreme Court’s flowery language is to put the language to an extreme test.

    Here is mine:

    Assume Thurgood Marshall never went to the Court but remained the same person otherwise. Assume also he was practicing criminal defense law and was assigned to defend a white cop who shot a black man numerous times in the back while claiming the shooting was justified for a variety of reasons.

    Now, assume Thurgood says to himself, I know the black community and I know it intimately. I am generally convinced, so Thurgood reasons, that it would be the highly unusual black juror who could judge the white man fairly in a case such as this. While I may be wrong for individual prospective jurors there is no practical way for me to sort the wheat from the chaff. Since I have a limited number of preemptory strikes and a limited time for voir dire, I am going to use a stereotype to help me. So, if you are black, out you go.

    So, if we really care about effective assistance of counsel, who has the better argument, Harry Blackmun or our mythical Thurgood Marshall?

    All the best.


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    16 November 2016 at 9:30 am - Reply

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  • Peter Gerdes
    17 November 2016 at 12:32 am - Reply

    Ohh and the question is whether it is MORALLY wrong for defense attorneys to make racially motivated strikes not whether it is legally wrong. Thus (given that illegal behavior is sometimes morally correct) the fact that the law prohibits it doesn’t entail it’s moral unacceptability.

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    21 February 2017 at 5:29 am - Reply

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