Recognizing racial issues in the criminal justice system is essential, says Fairfax criminal lawyer

Recognizing racial issues in the criminal justice system is essential. As a Fairfax criminal lawyer, I know that racism remains in our nation and the world, which means that racism can affect decisions by plenty of judges, jurors, prosecutors and police. Virginia took a major step several years ago make non-white criminal defendants feel less cornered into pleading guilty rather than going to trial in counties with higher incidents of racism, by no longer involving jurors in sentencing recommendations, unless requested by the defendant through a timely-filed request for a post-guilty verdict sentencing recommendation hearing before the jury. Virginia should go one step further in joining the states that permit a criminal defendant alone to opt for a non-jury bench trial in Circuit Court, but that only happens in Virginia when both the defense and prosecutor agree to a jury trial waiver. Let us remember that Virginia was enforcing Jim Crow laws and racial segregation right into the 1960’s, which is a reason that it is wishful thinking to expect that the commonwealth is racism free.

How much does race still affect the personnel in the criminal justice system in Virginia and the rest of the nation?

Virginia does not have sufficient procedures and protections to avoid having racist police, prosecutors, and jurors. Except for cities and towns that appoint their own prosecutors to handle misdemeanor cases, Virginia chief county prosecutors / commonwealth’s attorney are chosen by the voting citizens, thus not preventing racist chief prosecutors from being elected, let alone racist prosecutors who are hired by the commonwealth’s attorney. I am not saying that chief prosecutors should not be elected, but that this election process will not avoid racist prosecutors. Police are hired by police chiefs and their subordinates, whereby police chiefs are selected by the elected officials, which again does not eliminate racist police. Jurors are selected from the citizenry, who must be available for jury duty unless exempt from jury duty. The system for selecting judges in Virginia does not guarantee no racist judges, with the legislature selecting trial judges and with there being no method to date to assure that a person is not racist. On top of that, my recent podcast guest Eric Davis (a fellow alumnus of the Trial Lawyers College) here addresses the race-based history of a substantial part of the nation’s criminal justice system. Recognizing racial issues in the criminal justice system is essential.

What approaches does a Virginia criminal defendant have for recognizing and remedying race-based jury strikes by a prosecution / assistant commonwealth’s attorney

In his 2024 podcast interview with me, top-notch capital and criminal defense lawyer Stephen Bright underlines the end-runs that prosecutors are able to make around the federal Supreme Court’s Batson v. Kentucky, 476 U. S. 79 (1986), decision holding that the Constitution’s Equal Protection Clause bars prosecutors from exercising peremptory challenges based on race. The federal Supreme Court in May 2026 reaffirmed Batson, and, in a 5-4 ruling authored by one of the Court’s conservative justices approved a federal trial judge’s invalidation of a state trial court’s response to a black capital murder defendant’s Batson challenge, because “no state court had conducted the full three-step Batson inquiry, and the trial court had ‘thwarted’ the ‘attempt by Pitchford’s counsel to argue pretext.'” Pitchford v. Cain, ___ U.S. ___ (May 28, 2026) (from the syllabus, citation omitted).  Pitchford, a black gentleman, got convicted of capital murder and sentenced to death by a jury of eleven white jurors and one black juror, where the prosecutor struck four potential jurors, who were black. This imbalance calls for recognizing the importance of giving teeth to challenging evidence of race-based prosecutorial juror strikes.

What is the three-step Batson challenge process for recognizing and remedying race-based prosecutorial jury selection?

Federal Supreme Court Justice Kavanaugh in Pitchford confirms right off the bat that: “In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause bars prosecutors from exercising peremptory challenges based on race. In Batson and subsequent cases, the Court has spelled out how a trial court should determine whether a prosecutor employed a peremptory challenge based on race. After the defendant makes a prima facie showing that a peremptory strike was based on race (step one), the prosecutor must provide a race-neutral reason for the challenged strike (step two). Then, at step three, defense counsel has an opportunity to rebut the prosecutor’s race-neutral reason as pretextual, and the trial court in turn decides whether the prosecutor’s race-neutral reason for striking a juror is
pretextual ‘in light of all evidence with a bearing on it.'” Pitchford, citations omitted. Pitchford accepts the federal trial court’s finding that Pitchford’s state trial judge prevented the defense from presenting the third step of the three-step Batson challenge process.

Do Batson challenges help reduce race-based jury strikes?

As Steve Bright’s above-linked interview addresses, prosecutors have practical ways to make race based jury strikes even in the light of Batson and its progeny. Recognizing this, at the same time trial judges have the ability to put teeth into the Batson line of cases by seeing through disingenuous prosecutorial explanations for striking non-white jurors, and Pitchford confirms that at least five of the nine sitting federal Supreme Court justices are ready to keep Batson alive.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. For your free initiation in-person strictly confidential consultation with Jon Katz about your court-pending prosecution, contact us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.