In the brand new issue of the Texas Bar Journal the magazine profiles a day with several Texas attorneys, one being Bob Hirschhorn, the noted jury consultant. Hirschhorn apparently calls the shots on all the jury selections he is involved in, civil and criminal. He makes up index cards for each panel member. The cards include the person's number, last name, and codes for age, gender, RACE, and education.

What pray tell would the media and defense bar reaction be if it came out that prosecutors were routinely writing down the race of every juror? Batson challenges would become standard and our notes would be seized as part of the record after every voir dire.

Batson applies equally to the defense. If someone is facing a team including Mr. Hirschhorn, they may want to pay particular attention to the pattern of his strikes and, if called for, make a batson challenge and get a look at those cards of his. What do you think the "codes" for race are?

Well, some folks write the races down so that they can defend against a Batson claim, by disputing race on a given strike and to show the composition of the venire versus the petit jury. Those notes sure can count against you, though, if an appellate court gets them.

One modification that could help--if you want to keep track of the venire stats--is just write down the overall numbers rather than tracking the race of each venire member or each minorty venire member. Those of us in the warranties and repairs business can connect that better to the purpose than the individual stats.

I always write down the race (and always will) of my venire members--the same way I write down the sex and, their clothing if I consider it memorable. Nothing to do with Batson--it helps me remember the panel member specifically when I am doing strikes in the back room.

This all reminds me of one of my favorite true life stories that happened when I was a Public Defender. A woman asked an ADA and me where she could find a specific attorney. Since she didn't know what he looked like, she asked for a description. The ADA started describing the blue suit (that's different, right?) and his short hair and his height. I looked at the woman and said, "My heavens. He's black. He's the only black male attorney in the courtrooms." My friend, the ADA, was too afraid of looking like a bigot so he ignored the easiest way for this woman to look for him.

I just received the following email from Robert Hirschorn:

"Jeff - I understand you did a posting regarding my index cards. As you know, jurors are asked to disclose their race on the juror information cards that they fill out. My cards include the race of every single member of the venire. I believe the case law criticizes lawyers who selectively note the race of members of the jury panel. I never have and never will recommend that a lawyer exercise a peremptory strike on a juror based on race. I have stated in my speeches and in my writings that I feel it is wrong for lawyers to stereotype jurors. I hope you find this information helpful. Please feel free to post my response on the TDCAA web site. Robert
Robert B. Hirschhorn, Esq.
Jury and Trial Consultant"

I have always steered clear of making any notation of race on our juror sheets. Not all people that mark race are purposefully violating Batson, but to be found to have committed a Batson violation on the record is a permament blemish, deserved or not, so i think most avoid the risky practices with a ten foot pole. Our jurors are not asked their race, so any race information has to come from me. We also had a prosecutor who wrote a "b" next to certain jurors, and then tried to strike a "b" for a trumped up reason. The notes were bad news. They are also certainly discoverable if they refresh a witness's (lawyer's) memory during a Batson challenge. I suppose that if I put a racial connotation next to every juror, and the notes were made part of the record, I could still argue that race had nothing to do with my strikes. I could also argue that I was simply making it easier to recognize a Batson violation committed by the other side. I know that I would be very uncomfortable discussing my race notes in court, and several trial court and appellate court judges would find my notes disturbing. That being said, we are free to practice as we wish.

I kept looking for the profile of a DA or ADA but never did find one - I guess our life is just not exciting enough for the bar journal?!?!?!? Typical I guess for the Texas Bar - prosecutors are usually excluded from everything.

I had the same thought, Patricia. Here are some other observations I have after reading the latest Bar Journal:

- in the profile of Cade Browning, the Abilene defense lawyer, it calls Haskell DA Mike Fouts "one of the truly outsized personalities in the Texas legal community," and tells of Fouts "regal[ing] Browning with tales of West Texas justice while discussing several cases ...." A truer picture of Mike Fouts was never written!

- then we have the opposite, in the article on Criminal Court at Law Judge Anchondo in El Paso -- a reference to the courtroom "humming with at least seven attorneys, both plaintiffs and defendants, and at least 50 public members in attendance...." Huh? That sentence makes no sense. "Plaintiffs"?? It's a criminal court. Does she mean victims? If so, that's sad when our own bar journal doesn't know the difference between plaintiffs and crime victims, or plaintiffs lawyers and prosecutors.

Our juror information cards do contain a box for race for the juror to self-report. Not all do. And, of course, many (including the guvmint and my wife) regard race and ethnicity separately, which leads to its own set of problems.

As to prosecutor profiles, looks like its just part of the State Bar's casual ignorance that we exist. At least Texas Lawyer has profiled a couple in their Atticus Finch Moment columns. Or, maybe the magazine lacked enough pages to profile a personality as big as Mike Fouts . . .

Hirschorn says he is against using stereotypes.

Well, we've all heard that "stereotyping is bad," Its even Politically Incorrect. But in my experience, stereotyping seems more right than wrong, most of the time. If it were otherwise, stereotypes would be irrational. And if it were otherwise, there would be no rhym or reason for human relationships. An actor would be just as likely to vote for the death penalty as a cowboy; you would expect a professor of social work to be just as much a hard-ass on a burglary case as a retired cop.

But in fact, people do tend towards commonly held beliefs according to race, sex, occupation, national orgin, religion, etc. We all know this. I just hope no one thinks I'm politically incorrect for saying so.

I believe Batson to be very wrong-headed, and emblamatic of what is wrong with American criminal jurisprudence. Batson was grounded on the "right" of a venireman to serve on a criminal jury. It is not grounded in some idea that this will result in more accurate verdicts. To the extent that American jury trials carry such excess baggage, the causes of truth and justice are harmed. Prosecutors and defense attys should be able to make judgements about veniremen based on stereotypes if they so wish. To my mind, trials should be about determining guilt or innocense, and determining an effective and just sentence--period. Making veniremen feel wanted is not important.