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Washington Supreme Court Announces Rules for Trial Courts When Implicit Racial Bias Alleged in Jury Decision

by Douglas Ankney

The Supreme Court of Washington announced procedural rules for trial courts to follow when a post-verdict motion for new trial alleges implicit racial bias of a juror or jurors.

The day after Tomas Mussie Berhe was convicted of murder and other crimes, Juror 6 contacted the trial court, “expressing a lot of emotional distress.” She was put in touch with a jury counselor. Juror 6 also contacted defense counsel that same day. Berhe subsequently filed a motion for new trial and requested an evidentiary hearing alleging, inter alia, explicit or implicit racial bias of one or more members of the jury. Juror 6 provided a written declaration wherein she declared: “I did not agree with the verdict on March 1, 2016, and I do not agree with it now.”

She averred that for most of the deliberations eight jurors voted to convict, and four jurors either voted for acquittal or were undecided. But Juror 6 said she was the only one voting for acquittal who was accused of being “closed minded” and “partial” because she was the only African American on the jury, and the defendant was African American. She was the “last hold-out before a verdict was reached,” and she “only agreed to the guilty verdicts because [she] felt emotionally and mentally exhausted from personal and implicit race-based derision from other jurors.” The derision included mocking her as stupid and illogical for implying police engage in misconduct toward African Americans.

The State presented affidavits from jurors who answered two questions posed by the prosecutor: (1) “Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?” and (2) “Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias during deliberations?” All jurors denied observing or doing anything motivated by racial bias. Juror 11 stated she appreciated the insights of Juror 6 regarding hip-hop culture and wearing baggy pants. Juror 13 stated that another juror accused Juror 6 of being biased based on the fact her nephew was tried and convicted for burglary and that a friend of her son was tried for murder. Based solely on the affidavits, the trial court denied the request for an evidentiary hearing and denied the motion for a new trial. The Court of Appeals affirmed, and the Supreme Court granted review.

The Court observed that racial bias is a common and pervasive evil that causes systemic harm to the administration of justice, and it is uniquely difficult to identify. Social pressures cause many who consciously hold racial views to deny it. And implicit bias exists at a subconscious level, affecting people’s decisions without their awareness.

The Court observed: “Central to our jury system is the secrecy of jury deliberations.” Long v. Brusco Tug & Barge, Inc., 368 P.3d 478 (Wash. 2016). This is known as the “no-impeachment rule,” which prevents “the jury from divulging what considerations entered into its deliberations or controlled its” actions. Id.

However, in “cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged,” the no-impeachment rule must yield. Warger v. Shauers, 135 S. Ct. 521 (2014). A trial involving a jury where one or more members is biased is not a constitutional trial. City of Seattle v. Jackson, 425 P.2d 385 (Wash. 1967). Racial bias is unlikely to be revealed prior to trial because “[g]eneric questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

The Washington Supreme Court observed that the U.S. Supreme Court hasn’t addressed “what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony or racial bias” or “the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted.” But the Washington Supreme Court has. In State v. Jackson, 879 P.2d 307 (Wash. 1994), it ruled that courts are required to conduct an evidentiary hearing prior to ruling on a motion for a new trial when “the moving party has made a prima facie showing of [racial] bias.”

However, Jackson didn’t address the issue of implicit bias. The Court announced that the present case “presents us with an opportunity to expand” on the Jackson framework and “clarify how it must be tailored to adequately address allegations of implicit racial bias.”  

The Court instructed that “once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record.” Additionally, the court must “take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the record and supervised by the court.”

The Court acknowledged the inherent difficulty of determining whether implicit bias influenced a juror’s decision. Courts cannot simply ask them if bias influenced their judgment. Consequently, the Court announced the following framework to be applied to claims that implicit bias influenced a jury’s verdict: “The ultimate question for the court is whether an objective (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing.”

The standard for a prima facie showing is “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Johnson v. California, 545 U.S. 162 (2005). Because there are often race-neutral explanations for actions and decisions alleged to have been motivated by implicit bias, “courts cannot base their decisions on whether there are equally plausible, race-neutral explanations,” since they will almost always be present, the Court instructed. The Court explained that “courts must limit themselves to determining whether the evidence, taken as true, permits an inference that an objective observer who is aware of the influence of implicit bias could view race as a factor in the jury’s verdict.” If the evidence is unclear or equivocal, “the court must conduct further inquiries before deciding whether a prima facie showing has been made, for example, by asking the juror making the allegations to provide more information or to clarify ambiguous statements.” This must be done on the record and overseen by the court, not the parties.

Applying the newly announced framework to the present case, the Court held that “the trial court abused its discretion by failing to exercise sufficient oversight and by failing to conduct a sufficient inquiry before determining that Berhe had not made a prima facie showing that racial bias influenced the jury’s verdict.”

Accordingly, the Court vacated the trial court’s order denying Berhe’s motion for a new trial and remanded for further proceedings consistent with its opinion. See: State v. Berhe, 444 P.3d 1172 (Wash. 2019). 

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State v. Berhe



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