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47 Gonz. L. Rev. 341 (2011-2012)
Race and Ambivalent Criminal Procedure Remedies

handle is hein.journals/gonlr47 and id is 345 raw text is: Race and Ambivalent Criminal Procedure Remedies Brooks Holland* TABLE OF CONTENTS I. INTRODUCTION ........................................ 341 II. RACE, RIGHTS, AND REMEDIES ............................ 343 III. AMBIVALENT JUDICIAL REMEDIES .................... 347 A. Police Investigations ........................................ 347 B. Trial and Sentence .......................................... 350 1. Preservation .................................... 351 2. Harmless Error ................................. 354 3. The Exception to Judicial Ambivalence: Jury Selection........ 356 IV. MISGUIDED PREMISES AND A BETTER APPROACH ...... .......... 358 A. Moral and Utilitarian Premises ...................... ..... 358 B. A Better Approach .......................................... 362 V. CONCLUSION..................................... ..... 364 I. INTRODUCTION A prominent scholar recently observed, The story of the development of our criminal procedure jurisprudence is largely a story about race.' One therefore might expect a robust body of race-conscious criminal procedure doctrine inviting lawyers and judges to explore racial inequities in the criminal justice system. But quite the opposite exists: race largely has played a background role to race-neutral doctrine in the world of constitutional criminal procedure. As an explicit constitutional claim, race has been confined to equal * Assistant Professor of Law and Gonzaga Law Foundation Scholar, Gonzaga University School of Law. The author practiced as a public defender in the trial courts of the Bronx and Manhattan from 1994 to 2005, and he currently practices as assigned appellate counsel in the U.S. Court of Appeals for the Ninth Circuit. This paper was presented as part of the Gonzaga University School of Law 2011 conference, Race and Criminal Justice in the West. Many thanks are due to the conference participants and supporters, including Dean Jane Korn, Acting Dean George Critchlow, Professor Jason Gillmer, and the Gonzaga Law Review. I especially wish to thank my conference co-panelists, King County Superior Court Judge Mary Yu, Professor Nancy Leong, and Professor Christian Halliburton. I also appreciate the excellent research assistance of Laurel Yecny, a law student at Gonzaga. 1. I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 HARV. C.R.-C.L. L. REV. 1, 1 (2011). See generally Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48 (2000) (examining the linkage between the birth of modem criminal procedure and several landmark criminal cases involving black Southern defendants). 341

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