About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most