Legal Ethics

Tim Kaine article struggled with ethics of striking jurors based on race, acknowledged he did it

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Hillary Clinton’s running mate, Tim Kaine, once used his peremptory challenges to strike three whites from a jury in a housing discrimination case. And he admits he did so because of their race.

Kaine told the story in an article for the University of Richmond Law Review in which he grappled with the ethics of using race to strike jurors, the Daily Beast reports. The article was written in 1989, two years before the U.S. Supreme Court ruled that the constitutional ban on prosecutors striking jurors based on race in criminal cases also applied in civil trials.

Kaine’s client, the plaintiff, was black and the defendant accused of refusing to rent to Kaine’s client was white. Kaine’s opposing counsel used his peremptories to strike three blacks from the jury, and Kaine used his peremptories to strike three whites. His efforts led to the seating of one black juror.

“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.

Kaine said the practice was pervasive, though lawyers rarely talked about it, according to the Daily Beast account of the article. He believed the secrecy made the strategy “ethically suspect.” And he said the ethics of the practice were unclear.

On the one hand, Kaine said, a lawyer wants to give his client the best representation possible. On the other hand, the approach “arguably delays progress towards the goal of a color-blind system,” Kaine said.

The Daily Beast spoke with experts for their take on Kaine’s admission and law review article. Many said they don’t fault Kaine for doing something that was believed to be constitutional in a bid to give his client the best representation possible.

Stephen Bright, president and senior counsel of the Southern Center for Human Rights, told the publication that Kaine deserves credit for raising the issue. “He was ahead of the curve on this,” Bright said. “He was out in front of the Supreme Court, and not very many people raised these ethical issues that he raised.”

But Chapman University law professor Ronald Rotunda told the Daily Beast that using peremptories to strike white jurors was an ethical lapse. “Does he really think blacks think differently, that they’re going to be prejudiced in how they vote on the jury?” Rotunda said. “I would think they, like other people, would do their best to follow the judge’s instructions, that’s what people try to do. It’s really kind of offensive to say, ‘I want you there because I know what you’re going to think.’ That’s troubling.”

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