Racial Discrimination in Jury Selection: Professional Misconduct, Not Legitimate Advocacy

I. INTRODUCTION Although many regard the duty and privilege of participating in our judicial process through jury service with about as much warmth and respect as they view telemarketing calls at suppertime,1 it is nevertheless an that must be afforded to all citizens, regardless of race, ethnicity,2 or gender.3 Furthermore, Supreme Court jurisprudence over the years has established that the mere opportunity to serve on a jury through inclusion on jury lists or venires is not enough.4 The Constitution also requires that potential jurors not be excluded from actual juries as a result of intentional racial or gender-oriented discrimination.5 The Supreme Court embarked on the development of this constitutional principle in Swain v. Alabama,6 in which it held that prosecutors' use of their discretionary strikes of prospective jurors, commonly referred to as to systematically exclude Blacks from petit juries in after case might be deemed unconstitutional.7 Later, in Batson v. Kentucky,8 the Court narrowed and strengthened this concept by holding that it was unconstitutional for a prosecutor to exercise his or her peremptory challenges in a fashion that intentionally discriminated against Blacks on the basis of race, even within the context of a single case.9 The Court's prohibition against the discriminatory use of peremptory challenges was originally founded on the concept of safeguarding the equal protection rights of criminal defendants alone,10 but later shifted to a focus on the protection of these rights with regard to prospective jurors.11 In addition, the Supreme Court gradually expanded Batson's initial reach beyond addressing discriminatory conduct by prosecutors only. The dictates of Batson now apply equally to criminal defense counsel12 as well as civil trial attorneys.13 Hence, attorneys'14 striking of jurors in an intentionally discriminatory fashion has unequivocally and in all respects been deemed improper and indeed unconstitutional. In light of the systematic and wholesale exclusion of Blacks and other minorities from juries throughout American history, and the apparent injustices to litigants that not infrequently resulted therefrom,15 few would dispute that the Supreme Court appropriately sought to interdict jury selection techniques that would prolong this regrettable legacy. Unfortunately, notwithstanding its necessity and propriety, the Court's ban on the discriminatory use of peremptory challenges has, in practice, been decidedly ineffective in achieving its original goals.16 A jury selection process free from invidious discrimination certainly was and is an ideal worthy of attainment; however, the attention and commitment needed to achieve this end have remained lacking. Disturbingly, both the bench and bar have seemingly neglected to effectively utilize and understand the legal, ethical, and procedural protections currently associated with these anti-discrimination principles,17 let alone to implement additional measures that might serve as more meaningful safeguards. To make matters somewhat worse, the Supreme Court has actually eased the burden of avoiding a charge of discrimination in jury selection by requiring only a race-neutral explanation for a peremptory strike that has been properly challenged, rather than one that is both race-neutral and rational.18 As a result, some commentators have posited, and evidence suggests, that judges have become more willing to accept proffered race-neutral explanations for alleged discriminatory use of peremptory challenges, no matter how suspect.19 Furthermore, even if a violation of Batson's dictates is found by a court, the modest penalties imposed on offending lawyers provide little incentive to refrain from such behavior in the future.20 Not surprisingly, these systemic developments have in turn created a sense of futility, or possibly cynical desperation, within the litigation bar with regard to Batson objections. …