Well, WTF Was He Supposed to Do?

Update:  Well, apparently my lack of knowledge about the practice of law was particularly evident in the post below, as several readers let me know.   From this source

Since 1978, attorneys in California criminal trials have been forbidden to exercise peremptory challenges based on a lawyer’s belief that certain individuals are biased because they are a member of a specific racial, ethnic or religious group. (People v. Wheeler (1978) 22 Cal.3d 258, 276, citing, Ca. Const., art. 1, § 16 [right to representative trial by jury drawn from cross-section of community], overruled in part by Johnson v. California (2005) 545 U.S. 162, 168-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) In 1986, the U. S. Supreme Court followed California’s lead and held that jury challenges based on group bias violate the Equal Protection Clause of the Fourteenth Amendment. (Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 90 L.Ed.2d 69].) This has commonly become known as the "Wheeler/Batson" rule.

I don't want to be that guy whose point is disproved but who sticks by it anyway, but I stick by my point.  It's not clear by the timing that Kaine's actions were even illegal at the time, and the narrative below shows Kaine as responding to behavior of the opposing attorney.  If he did not at the time have access to Wheeler/Batson challenges, then his actions seem a reasonable response.  Again, it would be interesting to hear from attorneys actually involved in trials, but are there many attorneys who don't think the racial makeup of a jury makes a difference, even if they have to be more subtle in managing it?


The Washington Examiner seems to think they have somehow caught Tim Kaine red-handed:

As an attorney in the 1980s, Tim Kaine once had three white jurors struck from hearing a case in which his client, an African-American, alleged she was discriminated against by the defendant, who was white, the Daily Beast reported Monday.

Kaine explained later that the move was aimed at securing more black people on the jury, thus increasing his client's odds of winning her housing discrimination suit.

The white defendant's attorney employed peremptory strikes on the day of the trial to have three black people removed from the pool of potential jurors, the Daily Beast report explained. Kaine responded in kind: He used peremptory strikes of his own to have three white jurors removed, and succeeded in getting one African-American onto the jury.

Kaine explained later in an article for the University of Richmond Law Review in 1989 that he believed having more black people on the jury would swing things in his client's favor, implicitly admitting the tactic was race-based.

I am not an attorney, but doesn't this happen pretty much every single day in every single court?  This strikes me as about as surprising as a baseball manager substituting in a left-handed hitter to face a right-handed pitcher.  I would think that given any sort of reasonable legal ethics, if Mr. Kaine thought this action would help his client, then he was virtually obligated to do it.

If one wants to lament that black and white jurors come to different sorts of verdicts for black plaintiffs and defendants, then I suppose one could rant about that but it's hardly Tim Kaine's fault.  He has to deal with reality as it is.  If you really wanted a racial gotcha story, imagine  the facts reversed to something like "white defense lawyer refused to strike other whites from jury despite the fact it might have helped his black client."

Postscript:  And yes, I know the Lefty SJW's would have gone apesh*t if a Republican candidate as an attorney had struck black jurors from a trial to help his white client, but that does not make the critique any more correct.


  1. CraigNCowartEsq:

    Actually, this is unconstitutional racially discriminatory conduct. The victims are the white jurors that Mr. Kaine struck because of their race.

    The remedy for Mr. Kaine's client, if he believed his opponent is guilty of discriminatory strikes, is not to discriminate, but to challenge the strikes of his opponent as racially discriminatory. The judge listens to that attorneys reasons for the strikes, and makes a determination as to whether the strike was inappropriate.

  2. CC:

    The problem is the ability of the atorneys to strike members from the jury pool. I was in a jury pool and the defending lawyer (burglary charge) struck anyone who had been a victim of a crime.
    Attorneys always claim to have a reason to strike besides race.

  3. CraigNCowartEsq:

    The objective disinterested person in the courtroom, who is observing the activity and questions of the lawyers is the judge. He is the one to determine if someone is striking jurors on account of race. An attorney with a client and a financial interest should not be allowed to make that decision on his own. Nowhere else in the legal system do attorneys get that arbitrary power.

    Actually, what the other attorney did is irrelevant to what Kaine apparently did. What is clear, is that Kaine knowingly and intentionally discriminated on account of race, violating certain jurors constitutional rights. Because he did not challenge the other attorney's decisions, but secretly made a decision he was not authorized to make on his own, we do not know why the other struck the people he did, or what the Judge would have decided. In fact, besides race discrimination, Kaine is guilty of usurping judicial authority. And people wonder where the rule of law has gone.

  4. SamWah:

    He did it once? For a Republican, once is one too many.

  5. Maximum Liberty:

    This is called a Batson challenge, named after Batson v. Kentucky. The Wikipedia article on it is OK.

  6. Maximum Liberty:

    The theory of discretionary strikes is pretty solid. If each side strikes three from a pool of 18, you are likelier to get 12 with fewer biases. The problem is when the theory runs into the real world, where all three people who share a race with a party get struck. That's not a problem with what the effect is -- it is clear that you are going to get a more unanimous jury by striking all its black members. The problem is simply that it's racist.

    I don't think he's guilty of usurping judicial authority. He's an officer of the court performing functions that the law and court rules permit. But a race-based use of that power is still a constitutional violation.

  7. kidmugsy:

    The answer, I suggest, is for the voters to decline to elect lawyers to office.

  8. Thruppennybit:

    Doesn't this happen in every Grisham novel?

  9. Kurt:

    If O.J. Simpson had been charged and tired at the local courthouse (Hollywood) instead of in central LA with it's higher percentage of blacks, then he would be in prison for murder today.

  10. john109:

    "If you really wanted a racial gotcha story, imagine the facts reversed
    to something like "white defense lawyer refused to strike other whites
    from jury despite the fact it might have helped his black client."

    Sure, but then you've also go to imagine that we live in a country built on blacks enslaving whites, where 150 years after that slavery ended, blacks have 13 times more wealth than whites do. I don't expect many of us have that good an imagination.

  11. Zachriel:

    Coyote (elsewhere): I Still Don't Understand Why Racism is Defined Assymetrically

    Because history is asymmetrical.

  12. Robert Rounthwaite:

    ...and that's why Coyote said "If he did not at the time have access to Wheeler/Batson challenges, then his actions seem a reasonable response."