Racial discrimination in jury selection: Professional misconduct, not legitimate advocacy

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I. INTRODUCTION

Although many regard the duty and privilege of participating in our judicial process through

jury service with about as much warmth and respect as they view telemarketing calls at suppertime,1 it is nevertheless an opportunity that must be afforded to all citizens, regardless of race, ethnicity,2 or gender.3 Furthermore, Supreme Court jurisprudence over the years has established that the mere "opportunity" to serve on a jury through inclusion on jury lists or venires is not enough.4 The Constitution also requires that potential jurors not be excluded from actual juries as a result of intentional racial or gender-oriented discrimination.5 The Supreme Court embarked on the development of this constitutional principle in Swain v. Alabama,6 in which it held that prosecutors' use of their discretionary strikes of prospective jurors, commonly referred to as "peremptory challenges," to systematically exclude Blacks from petit juries in "case after case" might be deemed unconstitutional.7 Later, in Batson v. Kentucky,8 the Court narrowed and strengthened this concept by holding that it was unconstitutional for a prosecutor to exercise his or her peremptory challenges in a fashion that intentionally discriminated against Blacks on the basis of race, even within the context of a single case.9