Ruling Aims to Ensure Jury Selection Is Free of Racial Discrimination

News Release: 
Thursday, January 7, 2010

To ensure that the jury selection process is free of racial discrimination, the Washington Supreme Court has ruled that the government must provide an explanation whenever the sole remaining person of the same race as the defendant or the last minority member is struck from a jury panel. The ACLU-WA had urged the court to adopt such a bright line rule requiring the government to articulate a race-neutral reason when it seeks to exclude the only remaining member of a minority group from the pool of prospective jurors for a trial.

“Everyone has the right to be tried by an impartial jury in which the jury selection process is not tainted by discrimination. This bright line rule protects a citizen’s right to serve on a jury, as well as the defendant’s right to a fair trial and the public’s interest in keeping racial bias out of legal proceedings,” said ACLU-WA staff attorney Nancy Talner.

The ACLU-WA filed a friend-of-the-court brief in the case (State v. Rhone) stemming from a criminal trial in Pierce County. During jury selection, the prosecutor peremptorily challenged the only remaining African-American member of the 41-person jury pool. The juror’s exclusion came despite the fact that another individual of a different race accepted as an alternate juror had responded to the same line of questioning the same way, and the record indicates that the excluded juror might well have viewed the government’s case favorably.

Peremptory challenges allow the defense and prosecution to exclude potential jurors without an explanation. Each party has a limited set of these challenges, but the U.S. Supreme Court has ruled it is unconstitutional to use them to deliberately keep members of a racial or ethnic group off a jury. When there is an indication that race was a factor in a peremptory challenge, the court is obligated to look and determine that prejudice did not play a part in the action.

In the Rhone case, the defendant, an African-American male, objected to the exclusion on grounds that it was race-based. The prosecutor offered to respond, but the trial court indicated this was unnecessary since the defendant had not shown the juror’s exclusion was prima facie (on its face) discriminatory. The defendant was convicted, and the Washington Court of Appeals denied the defendant’s motion for a new trial. 

The ACLU-WA supported the defendant’s claim that the exclusion of a sole remaining African-American juror was indeed sufficient evidence of racial discrimination to require the prosecutor to explain the reason for the peremptory challenge. The ACLU-WA noted that previous court rulings have found that it is not necessary to show a consistent pattern of discrimination in jury selection; a single discriminatory challenge to a juror can be sufficient.

The ACLU brief cites data showing that evidence of disproportionate effects on racial minorities in Washington’s criminal justice system already exists. For example, data in the Washington Sentencing Guidelines Commission’s most recent report shows African Americans comprise less than 4% of the state population but received nearly 15% of all felony convictions.

“Requiring the government to articulate a reason for striking the only remaining African-American in a jury pool helps ameliorate the bias against African Americans in the criminal justice system. It also protects the right of all jurors to be treated equally, regardless of race,” said ACLU-WA legal director Sarah Dunne.

The court’s 5-4 ruling applies to jury selection proceedings from now on. Unfortunately, by a 5-4 margin, the court chose not to apply the new rule to the case under consideration. The deciding fifth vote in the decision did not explain why the rule should not apply to Rhone.

The brief was written by ACLU-WA cooperating attorneys Charles Sipos and Lisa Manheim of Perkins Coie LLP and ACLU-WA staff attorneys Sarah Dunne and Nancy Talner.