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The Seventh Circuit On The Possibility Of Race-Based Jury Strikes By An African-American Prosecutor

I’m surprised at how many African-American clients prefer to have a black judge or prosecutor involved in their case.

I don’t think it changes the prison time they may eventually serve, or the likelihood of serving prison time, but it seems to make the prosecution and process more morally legitimate to them.

Of course, others have the opposite reaction, seeing the prosecutor and judge – if they are of the same race as the client – as not only implements of a system that’s unfair to black people, but as turncoats in a struggle for racial equality.

For what it’s worth, in my non-random sample of clients, I don’t believe I’ve yet had a person who has reflected, with me, on being prosecuted by a government headed by a black president.

I see this as a backdrop for an odd issue in the Seventh Circuit’s recent opinion in United States v. Rutledge.

Jurors were being selected in Mr. Rutledge’s trial. Mr. Rutledge, apparently, is black. There were but two black people brought in to be possible jurors in the trial. The government struck each of them, keeping them from serving on the jury.

Mr. Rutledge’s attorney cried foul. It’s illegal to strike jurors, even a single juror, based on race. It violates the Equal Protection Clause.

The government is allowed to strike potential black jurors, even all of the potential black jurors, if it can articulate a reason based on something other than race. That reason has to be credible, and it is the court’s job to make sure that the reason makes sense.

When Mr. Rutledge’s lawyer challenged the government’s strike of all of the prospective black jurors, the prosecutor responded,

First, I would state that I, myself, am an African American, for the record . . . .

The Seventh Circuit did not like that remark.

The court of appeals remanded, because the trial court didn’t explain whether the prosecutor’s race-neutral explanations were credible. It went out of its way, though, to discuss the role that a prosecutor’s race should have in an analysis of whether the strikes were permissible (Spoiler Alert – none).

While noting that the court of appeals wasn’t exactly sure what the prosecutor mean, it went on to say,

The abbreviated exchange on the record is troubling, though, because it can be read as a request by the government for the judge to assume that simply because the prosecutor is herself African-American, she would not engage in prohibited discrimination.

Then, later, the court of appeals summarized,

While a judge may consider a variety of factors in making a credibility determination, it would be wrong for a judge to assume that a prosecutor of the same race as a juror would not engage in discrimination against that juror simply because of their shared race. As the Supreme Court explained in Powers, the Equal Protection Clause “mandate[s] that race discrimination be eliminated from all official acts and proceedings of the State,” which is “most compelling in the judicial system.”

The court of appeals went out of its way to say that it doesn’t matter to that court what the race of the prosecutor is for a race-based challenge to jury strikes.

What does it say, though, that it matters to my clients?

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