Peremptory Challenges and Racial Discrimination: The Effects of Miller-El v. Cockrell

Georgetown Journal of Legal Ethics, The, Summer 2004 by Johnstone, Mattie, Zachariah, Joshua M

I. INTRODUCTION

The persistence of racial bias in our legal system is a profound impediment to the administration of justice because it denies equal justice.1 Denying particular types of citizens the duty and privilege of participating in our judicial process through jury service on the basis of race has been one of the most visible manifestations of this bias. As early as 1880, the Supreme Court explicitly held that it was unconstitutional to deny a citizen the right to serve on a jury based on

race.2 Despite this early awareness of the insidious problem of racial prejudice in the judicial system, the problem has persisted.3 However, discrimination in the contemporary context is more subtle. Although racial minorities are no longer proscribed from jury participation by any law, the use of peremptory challenges in the process of jury selection may keep them off juries.4 Using peremptory strikes to remove potential jurors from the jury venire for purely racial reasons is harmful to the integrity of the judicial system because it is contrary to the fundamental notions of equality and justice.5

Although the methodical removal of minorities from the jury pool is invidious discrimination, the practice causes us all to suffer as justice becomes suspect.6 Officers of the judicial system have a duty to uphold the dignity of the legal system and improve the administration of justice, and therefore they should strive to maintain the credibility of the legal profession by working to eradicate racial bias injury selection.7 The Supreme Court aptly expressed the detrimental effects of racial discrimination injury selection as follows:

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.8

Cognizant of the harms discrimination inflicts on both individuals and the judicial system, the Supreme Court has made a concerted effort to eliminate racial bias in the jury selection process.9 Despite the efforts of the Court, racial discrimination and stereotyping in the jury selection process persist, partially due to the ineffectiveness of legal standards and ethical rules seeking to address this problem. Such standards have failed to discipline lawyers for discriminatory behavior.10 Recently, in Miller-El v. Cockrell, the Supreme Court had the opportunity to revisit the issue of racial bias in jury selection through the discriminatory use of peremptory strikes." In Miller-El, the Supreme Court attempted to clarify its earlier ruling establishing a process for determining whether peremptory strikes were exercised in an unconstitutionally discriminatory manner,12 and expressed, inter alia, that the credibility of a lawyer accused of racial discrimination needs to be specifically scrutinized during that process.13

In Miller-El, the Court sought to further elucidate the test it developed in Batson v. Kentucky. In Batson, the Court established a three-step process for assessing whether or not a lawyer's use of a peremptory strike was racially motivated.14 Subsequent cases in the Supreme Court and lower courts have engendered confusion over proper application of this test, with some courts claiming that the Batson test is unworkable.15 Despite the Court's efforts in Batson, there has continued to be outrage and concern in the public over racial discrimination injury selection.16 The Court in Miller-El revitalized its efforts to curtail racial bias in jury selection as embodied in the Batson test by reemphasizing the role that credibility has in assessing a lawyer's explanations for the use of peremptory strikes.17 Underlying the Court's effort is the uncomfortable reality that our judicial system is not functioning optimally when it is tainted with a reputation of being racially discriminatory,18 and that this perception is fueled by lawyers exhibiting racial bias injury selection.19

This Note analyzes the effect that Miller-El is designed to have on Batson hearings, and in so doing, suggests that an appropriate response from the legal community to the Court's focus on credibility would be the modification of legal ethics rules. States may want to establish non-discrimination as a norm of professional conduct in the spirit of Miller-El. The focus on modifying ethics rules is appropriate insofar as lawyers have a duty to obey the law and uphold the honor of the profession,20 and the Court's emphasis on the credibility of lawyers in Miller-El suggests that it is time for lawyers to take this duty seriously.21 Part H.A. covers the three-step process established by Batson, and Part II.B. discusses cases that have, according to some scholars, rendered the Batson process a meaningless charade.22 Part III explains and analyzes Miller-El v. Cockrell and how it will affect Batson hearings. Finally, Part IV discusses previous efforts made to promote non-discrimination and advocates the codification of nondiscrimination as a professional norm in the Model Rules of Professional Conduct ("Model Rules").