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

Should a criminal defense lawyer use peremptory challenges to strike jurors based on race if it was in the defendant’s interest?

Caleb was charged with arguing that reverse Batson, exercising peremptory challenges based on race, was just as wrong when done by defense counsel as the prosecution.

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

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.

Caleb’s point was that the exercise of race-based challenges cuts both ways, and for those who might argue that it serves a black defendant to strike whites from the jury, it also does the opposite. As the Emmett Till case proved, this is true.  And, indeed, this debate arose from the defense in Michael Slager’s trial for the killing of Walter Scott.

In contrast, Josh argued not that race-based challenges were no big thing, but that the duty of a criminal defense lawyer under the Sixth Amendment to defend his clients took precedence over generalized concerns about race.

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.

As he later gets into greater nuance, he makes clear that it’s not about violating the law in the performance of the defense, but about the conflict between the specific duty to zealously defend and the amorphous concerns of fairness.

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.

Who’s 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?

Morality presents a troublesome metric. As Josh notes, we all have our own sense of it, and we’re absolutely certain that our view is the right one or we wouldn’t hold it. But if our flavor of morality fails to meet another’s expectation, we’re immoral. Or they’re immoral, as the case may be.

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.

The rationale for Batson, the prohibition of strikes based on race, is that citizens, those who comprise the jury panel, have a constitutional right to serve. Yes, most would prefer a constitutional right to not serve, but that’s not the point. The point is that their service as jurors should not be precluded by their race.

On its face, it finds support in the idea that the exercise of prerogatives and duties of citizenship should never be impacted by race. It’s the same as the right to vote. There is no sound constitutional contention that blacks shouldn’t be as entitled to vote as whites, so why would jury service be any different? It’s an accoutrement of citizenship, and no less worthy of protection.

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.

Nestled in there is an important distinction. If a lawyer exercises strikes based on race not because of perception that it best serves the interest of the defendant receiving a fair trial, if not a positive outcome, but just because the lawyer hates blacks, then it’s a very different matter. That’s the overt racism that Josh properly calls dangerous.  The argument isn’t for racism, but for putting the interests of the zealous defense of your client ahead of the interests of a juror to serve regardless of race.

In many respects, questions like this present litmus tests, as the law is a constant mash of conflicting rights and interests. Some people value the prohibition against use of race more highly than the right to a zealous defense. Others have the opposite values. People who scream that one is more right, more important, without recognizing that there is no inherent moral justification for putting one ahead of the other, and that both values are legitimate and worthy of respect, fail to comprehend the complexity of the problem.

And if you think this debate presented a hard and troubling question, consider the dueling judges debate between Judge Mark Bennett and Judge Richard Kopf today at Fault Lines over the role judges should play in addressing implicit bias in jurors. Because race isn’t just an issue with regard to how jurors are selected, but how jurors see the trial and the guilt of the defendant as well.