It is a sunny afternoon in rural Georgia. A young Black man goes for a jog. On his route, he crosses the train tracks and heads into a predominantly White neighborhood. As his sneakers rhythmically hit the pavement, he hears the rev of a pickup truck behind him. Shortly after, he hears a second truck. The young jogger picks up his pace, but so do the trucks. The trucks chase him and eventually surround him. Two White men get out with shotguns. One stands ready, barrel raised. The other approaches the jogger and fires a bullet into his chest.

That is the story of Ahmaud Arbery’s murder in February 2020. During jury selection at his killers’ trial the following year, defense counsel removed almost every Black juror eligible to serve. The prosecutor made a Batson challenge, but the judge denied it. Despite finding there had been “intentional discrimination,” the judge said defense counsel had provided “race-neutral” reasons for removing the Black jurors. Although the judge made clear he did not “feel like” those were the true reasons, he said Batson’s “limitations” prevented him from finding otherwise.

For forty years, the Batson test has consistently failed to remedy the problem it attempted to solve—racial discrimination in jury selection. This Article explores the well-known failures of Batson and boils them down to one word—subjectivity. It discusses solutions that have been proposed to fix the problem, including eliminating peremptory challenges entirely. However, this Article explains that peremptory challenges play an important role in our adversarial system, and we do not need to throw the proverbial baby out with the bath water to fix this problem. Rather, this Article analyzes how four states have recently created objective solutions to Batson’s subjective problem, fulfilling the promise of Equal Protection that Batson aspired to achieve but fell short of delivering.

Racist rhetoric has no place in the American courtroom, regardless of which side of the aisle invokes it. Although courts and scholars have long condemned prosecutors’ use of racial stereotypes and racially charged arguments to secure convictions, considerably less attention has been paid to the use of the same rhetoric by criminal defense attorneys seeking acquittals. This Article argues that defense attorneys should be held to the same legal and ethical standards they demand of prosecutors: advocacy designed to exploit racial prejudice, stereotypes, or implicit bias is improper.

This Article examines how racially coded language, “othering,” and implicit appeals to racial stereotypes can influence juror decision-making even when an attorney never expressly references race. It explores the psychological and legal consequences of racial stereotyping in the courtroom and argues that vigorous representation of a criminal defendant neither requires nor justifies advocacy calculated to trigger racial bias.

Building on that analysis, this Article proposes concrete measures for preventing such rhetoric from influencing jury verdicts. Among other reforms, it argues that courts should require any party intending to make explicit or implicit race-related arguments to first seek a pretrial ruling through a motion in limine; employ appropriately timed limiting and anti-bias jury instructions; and intervene sua sponte when attorneys improperly appeal to racial prejudice. Ultimately, the Article proposes a simple but important principle: courts should evaluate racially prejudicial advocacy based not on who makes the argument, but on what is said and its potential to improperly influence the jury.