Mimesis Law
24 September 2020

Debate: Duty To Defendant Comes Before Race

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 Josh Kendrick and Caleb Kruckenberg to debate the question. Here is Josh Kendrick’s argument:

Defending people in criminal court is hard. There isn’t some strange class of villainous assholes required to defend an accused in an American court. Regular people become criminal defense lawyers all the time. That normal looking guy dropping his kids off at the local middle school is headed over to the county jail to clinically discuss the forensics of death with a charged murderer.

It’s a strange world. And the rules are weird. Well the rule. There is one, and only one, rule in criminal defense. Win your client’s case.

Like most rules, it has a lot of nuances and caveats and other reasons we can’t just end the discussion right there. Sometimes wins don’t look like they look in the regular world. But the only rule is to win your client’s case.

So last week when Caleb Kruckenberg asked “What happened to all the black jurors in South Carolina?” it triggered a more fundamental question about criminal defense. If you think a particular race might be more sympathetic to your client, wouldn’t that override everything else? Don’t you have to use that information to win your case? Caleb was pretty clear in his answer:

No. I swore an oath to uphold the constitution, and it is unconstitutional (not to mention shitty and immoral) for me to strike jurors because of their race. Zealous advocacy for my clients stops at that point.

If only it was that easy. Not only is there nothing shitty or immoral about following the one rule of criminal defense, but there isn’t a point at which zealous advocacy stops.

Before we go on, a couple of points. It is quite clear there are rules about striking a juror purely on race and that’s not the point of this debate. And there are ethical rules that cannot be broken. I get that, too. There is also the point that race isn’t always much of an indicator of whether a particular juror will be a “good” juror (S0me lawyers claim they are looking for “fair” jurors). This isn’t an advanced jury selection seminar.

Assume for this debate a particular race might be more sympathetic to your client. Should you strike a particular race if you can get away with it? Of course. Otherwise the last protection of the accused citizen becomes another bullshit trapping of the “fair trial.”

In Slager’s case, racial tension overwhelms his trial. A white police officer shot a black man in the back. It happened to occur in the midst of a nationwide epidemic of white police officers shooting black men. So while it would be nice to believe we can leave all the racial issues at the courthouse door, that isn’t going to happen.

What we do leave at the courthouse door is just about everything normal people get to do at their normal jobs. Because that isn’t what criminal defense is about. The idea that a decision is “immoral” is at the heart of the problem.

Whose morals? Mine? The guy who wants to be on the Supreme Court? What about the guy on the TV commercial? Which morals work best to impose not only on the criminal justice system, but on the poor dope who just found himself sitting in the crosshairs of a prosecutor?

Shitty? Here is what’s shitty. The thought of pulling up to a drab concrete building on an old smelly bus. Getting in line and walking past razor wire to a little cell where you are now locked in with a bunch of big, mean, bad dudes all day long, guarded by underpaid prison guards who will pepper spray the crap out of you for looking at them funny. That’s shitty.

Notice I didn’t say it was shitty when that happens to an innocent man. Yeah. I don’t care. Innocence and guilt are for some other entity to sort out. I just think prison sucks. Don’t want my client to go there. Don’t want to lose any trials. Don’t want to miss something. Don’t want to not use a particular tactic because it might be distasteful or offensive to someone not sitting in that jury box.

Here’s a thought. In a boring routine courtroom on some average day, a defense lawyer stands up to cross-examine a rookie cop who is going to save the world with every arrest. Somewhere between the rhythm of a good cross-exam, the comfort of knowing a case backwards and forwards, the judgment that goes into using the right tone in the right situation and the magic of figuring it all out at the same time, the defense lawyer just crushes this cop. And his client walks.

The cop didn’t lie. You just made him sound like a liar. Poked holes in his story. Confused him.

Immoral? Shitty? Dishonest? Whatever. Sure, maybe all that applies to regular people with regular gigs. Not this one. Welcome to the grind. You have one job. And sometimes it sucks. Sometimes explaining to a child that his father won’t be coming back sucks. Sometimes explaining to your own child that you spend all day fighting for criminals sucks.

And sometimes being a courtroom racist really sucks. A racist is a person that believes one race is a superior to another. That’s shitty. A courtroom racist is a person who thinks a particular race might be superior to another in making sure a specific client on a specific day doesn’t get his life bashed in by the hammer called “justice.”

So maybe Charleston attorney Andy Savage made some race-based choices for his client’s good. The rules say that is okay as long as he can come up with a good reason for it. Maybe that is what he did. So what? His client has to get on that bus and go to that prison because no one wants to offend anyone?

No way. If you have to make a tough call to win, and the rules say you can do it, do it.

Overt racists are dangerous. But so are the people who walk around swearing they don’t see color. The only people with any hope are the ones who understand race and how it effects our beliefs and perceptions and work to make sure that doesn’t cause harm. For a criminal defense lawyer, an acquittal never causes harm. If race might color the perception of a criminal defendant and hurt your chances of winning, strike away.

It’s the rule.

Rebuttal:  I take a much harder line about what I am doing in court than some people. I also don’t give the slightest damn what effect an acquittal has on society. I’m not interested in sending any messages. In trial, I don’t care about the downtrodden or politically powerless. I will defend a homeless person and a bank president different ways, but to the same end. Win, win, win. From the second I walk into a courtroom, I don’t care about anything else.

There’s a reason for that. So Slager is on video. So what? Other people can decide he committed a crime. I say that under our United States Constitution, he hasn’t done a damn thing. He is innocent. Right up until the jury says he is not.

So the case looks bad. Seems to be no defense. Looks like Slager is really screwed.

I. Don’t. Care.

But before you get all righteous about me and my beliefs, consider this. If the same video showed a black man stopping, turning around, pulling out a gun, and shooting a white cop, you know what I would do? Defend him to the death. If race became an issue, figure out a way to strike the white people on the jury that might not help me win.

I would not lose a second of sleep over it in either case. I understand Caleb’s position and I understand the greater good. But race isn’t special. It’s not something too sacred to be used in the defense of the citizen-accused. The very fact I might use each and every race a different way in each case, or not use race at all, means I don’t spend much time worrying about whether or not I am racist. I just understand the concept.

And it may not be justice to use that understanding in a courtroom. But I am just looking for an acquittal.

9 Comments on this post.

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  • Ben
    15 November 2016 at 10:55 am - Reply

    You rebutted the “shitty” and “immoral” part of his statement, but not the “unconstitutional” part. SCOTUS has held that purposely striking jurors based on race is a constitutional no-no. Your view is: “Should you strike a particular race if you can get away with it? Of course.” So, you’re saying that you believe in violating the Constitution as long as you can get away with it?

    • Josh
      15 November 2016 at 11:13 am - Reply

      I understand your point, but if we discussed it that simplistically, there couldn’t be any debate.

      In Caleb’s original post that sparked the question, he pointed out that the lawyer in the Slager trial had race-neutral reasons for the strikes, so he passed constitutional muster. But Caleb suspected the underlying reason was based on race.

      In order for the debate to work, you have to accept the premise that if you have a race-neutral reason for a strike, you have not violated the Constitution. Of course, that’s what the Court has said. So if I have to follow it, fine. But all I have to do is follow it.

      So to answer your question, no I don’t agree with violating the Constitution just because you can get away with it. But I also don’t accept the premise that the Slager defense lawyers have violated the Constitution, even if race was a factor in their decision.

  • When Batson Bumps Into the Sixth Amendment | Simple Justice
    16 November 2016 at 9:46 pm - Reply

    […] was a debate at Fault Lines yesterday between Caleb Kruckenberg and Josh Kendrick, criminal defense lawyers both. The question posed […]

  • Jerome
    18 November 2016 at 7:46 pm - Reply

    The question is: Do the ends justify the means? Seems like a decided question. As Caleb writes, “Unequivocally, the answer is no.”

    You have defined the ends as “win, win, win.” You don’t care if the client is innocent or guilty. You don’t care if you destroy a witness’ reputation or career by admittedly misrepresenting and distorting the truth. Your goal is to get every client off so nobody ever goes to jail. And you think morals are relative.

    I just can’t find a bit of this persuasive. Do lawyers study moral philosophy or jurisprudence anymore?

    • Josh
      18 November 2016 at 9:33 pm - Reply

      I can tell from your comment you don’t understand this post or the point being debated.

      That’s more your problem than mine.

      • Jerome
        19 November 2016 at 8:17 pm - Reply

        From your response to Ben, I expected another ad hominem from you.

        • Josh
          19 November 2016 at 8:26 pm - Reply

          Explain. What’s wrong with either response?

  • There Is No “Morality” Exception | Simple Justice
    20 November 2016 at 8:52 am - Reply

    […] charged, Josh Kendrick made the argument that the defense lawyer should put the needs of the defendant ahead of any societal desire for […]

  • What Is The Role Of A Criminal Defense Lawyer?
    22 November 2016 at 9:15 am - Reply

    […] about using race in jury selection. In the spirit of debate, which is slowly dying in America, both sides were presented. And in the spirit of the Internet, a commenter decided to weigh in without […]