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THE DARK SIDE: The courtroom is no place for the faint of heart

A courtroom is a place where hardened lawyers make hard choices.

And we really don’t like it when the Laura Wingfields of the world take time away from their glass menageries to second-guess our choices.

One of those choices is who to remove from the jury with peremptory strikes.

Ideally, we’d know everything there is to know about everyone on the panel and all potential jurors would be free of prejudices. But that’s not reality, so we make our choices based on limited information and sometimes our own prejudices about what prejudices the jurors might have.

You know what? If I’m representing a black man arrested in a lily-white community, I want black people on the jury.

Why should I put my own client at a disadvantage for some colorblind ideal?

It is well understood that it violates the Equal Protection Clause for prosecutors to strike jurors based on race or gender. Batson v. Kentucky, 476 U.S. 79 (1986).

But it is also violates Equal Protection for defense attorneys to strike jurors for these reasons. Georgia v. McCollum, 505 U.S. (1992).This unfortunate extension of Batson suffers two flaws; one legal and one practical.

The legal fallacy underlying McCollum is that the defendant violates the rights of the jurors by striking them based on race or gender. This is ridiculous. A citizen’s right to serve on a jury should be deemed inconsequential when weighed against a defendant’s right to strike whomever he pleases for whatever reason.

In practice, all I can say is, “You’ve made your law, let’s see you enforce it.”

Recently, though, the 7th Circuit did enforce the law and held that a Wisconsin defense lawyer violated the law by using gender as a factor in striking prospective jurors in a sexual assault case. Winston v. Boatwright, 649 F.3d 618 (7th Cir. 2011).

At one point, the court wrote, “Troublingly, before this court Wisconsin has taken the position that ‘[d]efense lawyers often ignore, or even perpetrate, violations of their clients’ constitutional rights in the hopes of gaining a strategic advantage.’ …

“We do not know where the state is getting its data from, but we hope that it is mistaken about the frequency of deliberate constitutional violations on the part of the defense bar. To the extent that such misconduct exists, we are certainly not going to give it our imprimatur.” Id., at 631-632.

The state’s position was accurate, however, and anyone who doubts that needs to spend a little less time playing with glass unicorns.

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