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CancelledAs a young prosecutor I attended a prosecution training session on jury selection. It was a far different time, when the use of peremptory challenges was wide open. A prosecutor could challenge a prospective juror for any conceivable reason. Perhaps the prosecutor didn’t like the juror’s beard or, more importantly (and disturbingly), because the juror was Black. Given such wide latitude, we were effectively trained to exercise “a prosecutor’s sagacity,” an unspoken imprimatur to almost reflexively strike Black jurors if the defendant was Black, and strike Jews as too sympathetic (especially toward Jewish defendants). Conversely, we were encouraged, unofficially of course, to keep Nordics on the jury on the presumed logic that they would typically be unsympathetic to any defendant. All these unwritten guidelines were blithering generalities, to be sure. Nonetheless, they were “the smart money” in a prosecutor’s jury selection gambit.

Yes, the Supreme Court’s decision in Batson largely ended such peremptory strikes in 1986. Under that ruling, prosecutors could no longer cavalierly exclude jurors based on race, ethnicity or religion. Some prosecutors still try, of course, by attempting to disguise what they’re doing. However, prosecutors’ offices no longer hold training sessions akin to those I recall from the bad old days. At least, I hope not.

Hardliners who disdain cancel culture, though, might see Batson as a forerunner to the type of guardrails placed on lawyers who can no longer practice law in the freewheeling style of yesteryear. In some ways this is analogous to the restraints imposed on defense lawyers; for example, given reformative case law, they can no longer cross-examine rape victims challenging their sexual promiscuity as they might have years ago. Just imagine how the cancel culture might (properly) attack lawyers on both sides of legal controversies who engage in such conduct today, as well as the prosecution offices or law firms with criminal defense components that tolerate such tactics.

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