There are ways to talk about prosecuting crime that can generate political support. Focus on heinous criminals, defenseless victims, and if you can throw a spotlight on taking down the rich and powerful, prosecutorial experience can be a tremendous asset. A Democratic politician able to declare that their work took thousands of guns off the streets would approach superstar status in the party. Vice President Kamala Harris loves talking about her career as a prosecutor… but somehow only the parts where she bullied poor people. Now she’s adding troubling broadsides against defense attorneys representing indigent clients for good measure.
Can someone please find her a better speechwriter?
“Wokesters.” Yes, that’s a strategic political punching bag for a Democrat and not at all a manufactured Pavlov’s bell for terminally online conservatives.
Harris is, one hopes, being deliberately obtuse here. Public defenders aren’t looking to impanel Black jurors because they think those jurors are “sympathetic to their client because of race” and they aren’t shocked when those jurors don’t “align with the knucklehead who robbed a gas station.” Without knowing the details of every specific case Harris used to construct this strawman, we can safely conclude that the public defenders prefer Black jurors because the crux of their defense is going to be “my client is NOT the knucklehead who robbed a gas station.”
They’re going to argue that the client is an innocent Black guy who matched the police description of “Black male aged 18-75 between 5’1 and 6’11 wearing a greenish shirt” and that this identification lacked the precision one might hope for before putting someone in prison for 20 years. Defense attorneys aren’t arguing that crime is good — well, maybe for the January 6 defendants — but that cops and overzealous prosecutors got the wrong guy and are banking on Black jurors being more likely than other demographics to understand how that might happen.
The narrative that defense attorneys spend trials making a case for a Purge-like anarchy is a comic absurdity that only the stupidest people could embrace.
Spoiler: Democratic party strategists are embracing this narrative.
Again, Harris almost certainly knows better. Unfortunately, she’s using her position of influence to foster damaging misconceptions about the criminal justice system. She’s peddling the notion that defense attorneys are pro-crime and that if jurors if care about their neighborhood, they should uncritically accept the prosecution’s claims that this person committed a crime .
And that’s another thing: while claiming public defenders are racist for thinking Black jurors improve the chances of fostering reasonable doubt, Harris is herself implicitly blaming Black jurors who acquit for failing to be “deeply offended and angry about crime in their neighborhoods.” These remarks boil down to “only Black people who don’t care about their neighborhoods would find a reasonable doubt” and that’s its own brand of racism.
Especially when the empirical evidence supports the public defenders. There are more studies on this than we can count, but just grabbing one at random from the last few years found that all-white juries convict Black defendants roughly 81 percent of the time, while having just one Black juror lowers that figure by 5 percent. The jury doesn’t even have to be entirely African-American. Merely adding one voice in deliberations willing to advocate that reasonable doubt exists has an impact. Given that Black jurors are marginally but significantly better for defense attorneys — and not the “myth” that Harris calls it — her indulgence of these tropes sets the stage for vilifying acquitting jurors on the basis of race.
So if she knows all this, who is any of this even for? Politicians don’t embark on talking points lightly. Whenever Harris leans into her prosecutorial themes — and despite the social media framing, this isn’t new, it’s been one of her central messages all along — it’s unclear how she thinks this advances the party ball. Are there Black voters who feel their concerns about crime are so under-respected that they’re planning to vote Republican? Is this just a dog whistle to conservative white voters that the Democratic party is so tough on crimeTM that they can abandon the GOP?
Good luck with all that.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.