Democratic vice presidential nominee Tim Kaine had three white people removed from a jury pool because of their race during a trial in the 1980s, according to a law review article recently unearthed by The Daily Beast.
At the time, Kaine was representing a black woman in a housing discrimination case. The woman claimed a white woman was refusing to rent to her on the basis of her race. To improve his odds at trial, Kaine decided it was essential that he get a black person on the jury. He went about this using the best weapon he had available: striking white people from the pool of available jurors.
In a 1989 article for the University of Richmond Law Review, highlighted Monday by The Daily Beast, Kaine bluntly admitted he excluded the whites in an effort to increase the number of black people in the jury and thereby improve his clients chances of winning. (RELATED: Kaine Says GOP Blocking Merrick Garland Because Obama Is Black)
“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 in the article, titled “Race, Trial Strategy, and Legal Ethics.”
Kaine’s action was based on the assumption that a black jury member would be inherently more sympathetic to his client. Kaine wasn’t the only lawyer trying to alter the case’s racial make-up. While he was striking three whites from the pool, his opponent was striking three blacks from it, presumably because he also saw them as likely to favor Kaine’s client.
Kaine described the tactic as “pervasive” among lawyers, but also a taboo that was not spoken about. That very unwillingness to speak about the tactic made it ethically suspect, Kaine said, but at the same time, not using it could potentially undermine an attorney’s duty to advance a client’s case to the best of his ability.
“Most trial strategy involves ‘playing averages’ in situations where information is incomplete and consequences uncertain,” Kaine said. Making guesses based on racial stereotypes, he suggested, was just another way of playing averages.
At the time, Kaine’s tactics were legal, but they wouldn’t be allowed today. In 1991, the Supreme Court ruled that excluding jurors on the basis of race from a civil jury was unconstitutional. But that doesn’t meant the practice has disappeared, as lawyers can still strike jurors of a particular race as long as they furnish a credible non-racial justification for doing so. Numerous progressive publications and academics have complained that tactics like Kaine’s live on and are being used to railroad criminal defendants.
Still, some attorneys have praised Kaine for his commitment to helping his client by whatever means were available at the time, while also thinking critically about the ethics of what he was doing.
“I don’t fault Tim Kaine for doing that,” University of Virginia law professor Josh Bowers told the Beast, “and to the extent that it was constitutional at the time, he may have even been to some degree professionally obligated to do so—to the extent that he thought it was in the best interest of his client.”
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