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Washington Supreme Court Recognizes Racial Bias in Jury Selection but Fails to Take Action

Washington Supreme Court Recognizes Racial Bias in Jury Selection but Fails to Take Action

by Mark Wilson

"Peremptory challenges are used in trial courts throughout this state, often based largely or entirely on racial stereotypes or generalizations,” declared Washington State Supreme Court Justice Steven Gonzalez. “As a result, many qualified persons in this state are being excluded from jury service because of race.”

Peremptory challenges date back to 13th century England, Gonzalez noted. Since the king was allowed to remove potential jurors for cause, peremptory challenges were created to make trials more fair.

Washington’s territorial legislature adopted peremptory challenges, without debate, more than 150 years ago. The practice is permitted in all states.

Today, prospective Washington jurors may be removed for cause based on evidence of potential impartiality. The defense and prosecution are also allowed three peremptory challenges each to remove jurors for no reason at all, so long as it’s not for purposeful discrimination.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court attempted – but failed – to eliminate institutional discrimination during the jury selection process.

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection,” wrote Washington State Supreme Court Justice Charlie K. Wiggins. “In part, this is because Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional or unconscious.”

Kirk Saintcalle, an African American defendant, challenged his first-degree felony murder conviction for a 2007 homicide, alleging racial bias in jury selection at his trial. The only black person in the jury pool was singled out by prosecutors for additional questioning about her views on race in the justice system. During that questioning, she revealed that a friend had been murdered two weeks earlier.

Prosecutors used a peremptory challenge to dismiss the juror, claiming they did so because she said she did not know how her friend’s murder would affect her during the trial.

Given that prosecutors would not have learned of the murder if not for the questions regarding her views on race, Saintcalle claimed the prosecution’s rationale was pretextual. The prosecutors had also tried, unsuccessfully, to dismiss the only Mexican-American on the jury panel.

While unanimously recognizing that racial bias in jury selection is a problem, the Washington Supreme Court was sharply divided about what to do about it, as evidenced by an August 1, 2013 ruling with five opinions totaling 110 pages in Saintcalle’s appeal.

Eight of the nine Justices voted to uphold Saintcalle’s conviction because they could not conclude that the juror’s exclusion was clearly improper. Yet they unanimously agreed that race is often a factor – consciously or unconsciously – when attorneys use peremptory challenges.

Justice Wiggins cited studies that found prosecutors typically use peremptory challenges to remove black jurors while defense lawyers most frequently exclude white jurors.

Suggesting that peremptory challenges increase administrative and appellate costs but do not do any good, Justice Gonzalez followed the lead of U.S. Supreme Court Justices Thurgood Marshall and Stephen Breyer in proposing the elimination of the practice. However, none of his colleagues wanted to make such drastic, sweeping changes.

The authors of the lead opinion in Saintcalle’s appeal also acknowledged the problem, but believed the Court could craft new rules to prevent racial bias in jury selection. Allowing a judge to overrule a peremptory challenge if there is a reasonable probability that it was motivated by race might address the issue, Justice Wiggins suggested. He conceded, however, that prohibiting peremptory challenges may be the only way to eliminate racial bias.

While also concerned about racial bias, Justices Barbara Madsen and Jim Johnson felt the issue was not properly before the Court. Justice Debra Stephens wrote separately, suggesting that the legislature, not the Court, must fix the problem since peremptory challenges are enshrined in state law.

Thus, while acknowledging that “Racial inequalities permeate our criminal justice system and present important moral issues we all must grapple with,” the Washington Supreme Court ultimately did nothing to address or correct that problem, and upheld Saintcalle’s conviction. See: Washington v. Saintcalle, 178 Wn.2d 34, 309 P.3d 326 (Wash. 2013), cert. denied.

Additional source: Seattle Times


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Related legal case

Washington v. Saintcalle