Caleb, 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. RGK
[…] was a debate at Fault Lines yesterday between Caleb Kruckenberg and Josh Kendrick, criminal defense lawyers both. The question posed […]
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.
[…] 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 putting […]
[…] a more substantial problem comes in the form of discriminatory jury action. I’ve written about discriminatory acquittals before, and, certainly, horrible acts of racists violence being nullified by white juries is a terrible […]