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ARGUED OCTOBER 25, 2010

Before WOOD, WILLIAMS, and TINDER, Circuit Judges.

For more than 130 years, federal courts have held that discrimination in jury selection offends the Equal Protection Clause. See, e.g., Smith v. Texas, 311 U.S. 128, 130-32 (1940); Norris v. Alabama, 294 U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397-98 (1881). Early cases focused on the systemic exclusion of racial minorities from juries through state statutes, e.g., Strauder v. West Virginia, 100 U.S. 303 (1880); later, attention turned to the race-based use of peremptory challenges by prosecutors. Batson v. Kentucky, 476 U.S. 79 (1986). More recently, the constitutional prohibition on discrimination in jury selection has been extended beyond race to gender. Moreover, the fact that society as a whole has an interest in the integrity of the jury system has been acknowledged. The anti-discrimination principle is thus not just a privilege of the criminal defendant; it constrains prosecutors, criminal defense lawyers, and civil litigants alike. Intentional discrimination by any participant in the justice system undermines the rule of law and, by so doing, harms the parties, the people called for jury duty, and the public as a whole. See J.E.B. v. Alabama,511 U.S. 127 (1994) (applying Batson to gender-based peremptory strikes); Georgia v. McCollum, 505 U.S. 42 (1992) (applying Batson to criminal defense counsel); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (applying Batson to civil litigants); Powers v. Ohio, 499 U.S. 400, 405-07 (1991) (describing the harms of discrimination in juror selection); Batson, 476 U.S. at 86-88. As this case illustrates, however, discrimination in the selection of jurors has not yet been eradicated.

 
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