Washington Supreme Court: When a juror of color reports experiencing racial bias, the court must investigate

Tuesday, October 29, 2019
The Supreme Court of Washington in 2018 became the first court in the nation to prohibit not only intentional, overt racial discrimination as a reason for striking individuals from juries, but also “implicit, institutional and uncurious” racial and ethnic bias.

Nevertheless, racial bias can impair the fairness of the proceedings even when a person of color serves on a jury, if the juror is subjected to racial harassment and discrimination as they perform their service.

That’s what happened in State v. Berhe, a case in which a juror of color was racially harassed by her fellow jurors during deliberations. The only African American juror, she was accused of being sympathetic to the African American defendant because of their race.
Worn down by personal and race-based comments directed at her, she ultimately voted to convict the defendant. But the next day, she contacted the court to say that she did not believe he was guilty, and that, as the lone “hold-out” on the jury, she only agreed to the guilty verdicts because she felt emotionally and mentally exhausted from the barrage of race-based harassment she was forced to endure.
The court dismissed her allegations without investigating them. Instead, the court sent questions to the other jurors, asking if they had any racial bias toward the juror of color, and, when each of them ultimately said no, the inquiry ended.
In a friend of the court brief filed in the case, the ACLU-WA said a juror’s sworn statement that racial bias affected the proceedings should trigger an investigation by the court. The state supreme court agreed.

“It is essential that once a claim of racial bias is raised, investigations into allegations of racial bias are conducted on the record and with the oversight of the court,” the court wrote in its decision, which set guidelines for such a process and ordered a new trial for the defendant.

The right to a trial by a jury is guaranteed by the constitution, as is the right to a fair trial. Those rights are violated when racial bias and prejudice taint the jury’s consideration of a case. Racial bias is also significant because of the historical context of racism; laws once prohibited people of color from sitting on juries. And, long after the U.S. Supreme Court struck down these laws unconstitutional, the process of jury selection still enabled the exclusion of people of color. 

The negative consequences of dismissing reports of racial bias without further inquiry are devastating, both personally to jurors who report them, and to wider efforts to make juries diverse. Such actions deter African American jurors from serving on juries, out of fear of being accused or ridiculed for being “partial” to litigants of color. And, when jurors of color are not allowed to freely share their opinions or dissent from the other jurors just because a litigant is also a person of color, the benefits of diverse juries on decision-making are lost.

In its brief, the ACLU-WA asserted, and the state supreme court agreed, that for trials to be impartial, jurors of color must be able to perform their service free from racial discrimination, implicit or explicit.

Importantly, ensuring this happens is the responsibility of the trial court. The state supreme court placed the onus on the trial court to root out racial bias in jury proceedings whenever a juror raises the issue, to put any question of fairness to rest.

As the U.S. Supreme Court put it in State v. Jackson (quoting State v. Parnell), “Not only should there be a fair trial, but there should be no lingering doubt about it.”

The ACLU-WA’s brief was written by ACLU-WA Staff Attorney Antoinette M. Davis, ACLU Attorneys Twyla Carter and Jeffery Robinson, Loren Miller Bar Association, and ACLU-WA Cooperating Attorneys Margaret Pak Enslow.