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

The broader proposal provided that it would be professional misconduct for a lawyer to:

(g) commit a discriminatory act prohibited by law or to harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation or marital status, where the act of discrimination or harassment is committed in connection with a lawyer's professional activities.146

Both proposals were on the agenda of the 1994 ABA February Mid-Year Meeting, but were withdrawn at the last minute when the competing sponsors announced their intention to work together to develop a single proposal.147 The single proposal never materialized, partly because of concerns that a rule prohibiting bias and prejudice could infringe First Amendment rights.148 Instead, at the 1995 mid-year meeting, the ABA adopted a policy resolution condemning bias and prejudice by lawyers, whether in the courtroom or elsewhere.149 While this resolution was a laudable gesture, the fact that such condemnation of reprehensible conduct was in statement of policy rather than embodied in the standards of professional ethics has drastically limited its substantive impact.150

In 1998, the ABA did incorporate the idea that discriminatory conduct was frowned upon into the Model Rules, though in language much diluted from the previously proposed amendments and only as an amendment to Comment 3 to Rule 8.4, which did not expressly codify it as misconduct per se.151 The ABA Report Explaining 1998 Amendment to Comment to Rule 8.4152 noted that, "[f]ormulation of a black-letter rule barring unacceptable conduct while preserving legitimate advocacy and First Amendment freedoms is a difficult task because manifestations of bias and prejudice may include protected speech and because race, gender, and other factors are sometimes legitimate subjects of consideration and comment in the legal process."153 The task proved so difficult that the amended Comment had significant exceptions for conduct in the course of "legitimate advocacy" and during the exercise of peremptory strikes. This rendered the ABA's efforts practically a hollow condemnation.154 Comment 3 to Rule 8.4 currently reads:

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) [engaging in conduct which is prejudicial to the administration of justice] when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.155

The Committee Report explained the exemption for the exercise of peremptory strikes was included "to address a concern of the criminal bar, namely whether a finding by a trial judge that a lawyer exercised a peremptory challenge in a discriminatory manner could be considered a per se violation of this Rule," noting "it should not."156 Instead, the Comment "reasonably interpreted, is meant only to reach conduct of such a nature or frequency that it is prejudicial to the administration of justice" and "[s]ingle incidents that suggest or imply bias or prejudice . . . are not necessarily prejudicial to the administration of justice" and therefore do not violate Rule 8.4(d).157