Betsy Woodruff, Daily Beast, August 29, 2016

In a late ’80s civil trial in Richmond, Tim Kaine used a race-based legal strategy that the Supreme Court would later determine was unconstitutional: He struck potential jurors from a trial, simply because they were white.

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But Kaine–whose team didn’t respond to a request for comment for this story–has a history of grappling with racial issues head-on. And an article he wrote for the University of Richmond Law Review in 1989 provides a window into how he thought about the interplay between racial stereotypes and criminal justice. As a trial lawyer, he grappled with whether it was ethical to use racially motivated stereotypes about white and black people to try to get jurors who would favor his clients.

In at least one case, he used those stereotypes to try to shape a jury. It’s a practice that has drawn some criticism for Kaine–but also some surprising support–in legal circles. Ronald Rotunda, a libertarian-leaning attorney and a professor at the Chapman University School of Law, for one, called Kaine’s sentiment “offensive.”

Kaine opened the article, titled “Race, Trial Strategy, and Legal Ethics,” by describing an effort he made to get a black person on the jury in a housing discrimination case. Kaine’s client, the plaintiff, was African-American. On the day of the trial, in civil court, the defendant’s attorney used a legal tactic called a peremptory strike to block three black members of the jury pool from being on the jury. So Kaine pushed back by using peremptory strikes to push three white jurors off the panel. As a result, he got one black person onto the jury.

“I struck three white veniremen, not because they were unsympathetic individuals, but purely to increase the odds that the jury would have at least one black representative,” Kaine wrote.

He wasn’t thinking about legal ethics, he added. His only concern was getting the most sympathetic jury possible–which meant betting that a black juror would have more empathy for a black plaintiff than a white juror would. That bet was based on racial stereotyping, and Kaine knew it. He also knew he wasn’t the only lawyer who used race-based assumptions in jury selections.

Kaine then wrote that using assumptions about race to craft courtroom strategy was “pervasive.” His fellow lawyers rarely talked about it publicly, he added, but they all did it. {snip}

“The notion that common stereotypes have some truth cannot, as a factual matter, be completely denied,” he wrote. “While conventional wisdom about how different ethnic groups respond in civil or criminal trials has not withstood statistical studies, the notion that a juror may be more inclined toward a party of her own race is not necessarily a racist assumption unsupported by facts.”

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But, he continued, the ethics are far from clear. After all, the approach he used in the housing discrimination case “arguably delays progress towards the goal of a color-blind system” and also erodes confidence in the principles to which we claim allegiance.”

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And the Supreme Court followed suit. A few years before Kaine’s article was published, the court ruled in Batson v. Kentucky that criminal prosecutors couldn’t use keep potential jurors from hearing a case based solely on their race. And two years after Kaine’s article ran, in 1991, the Supreme Court ruled in Edmonson v. Leesville Concrete that the same standard also applied to civil trials, like the one Kaine had described. Dilemma: resolved.

Except not really, because–as Stephen Bright of the Southern Center for Human Rights detailed–the practice of using race-based strategizing to pick jurors is still very widespread.

“We still have communities with very substantial African-American populations that never have African-Americans on juries because the prosecution strikes all the blacks,” he said.

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