2023
Washington Supreme Court Expands Batson Test, Establishes Rule Regarding Peremptory Strikes

In Matter of Rhone, the Washington Supreme Court addressed a narrow issue about racial bias in jury selection—specifically, whether a prima facie case of discrimination is established when the state peremptorily strikes the last member of a racial group from a jury venire.[1] The case is noteworthy because the court grounded the holding in the controversial research around “implicit bias.”[2] It may encourage other states to follow suit in cases involving race and jury selection in more varied contexts. It is also significant because the Washington Supreme Court has previously attracted attention for its controversial rulings regarding racial issues, and this decision suggests that similar opinions could come in the future.[3]
In a direct appeal, petitioner Theodore Rhone asked the Washington Supreme Court to adopt a bright line rule establishing a prima facie discrimination case when the state peremptorily strikes the last member of a racial group from a jury venire. In 2010, when Rhone’s case first came before the same court, a fractured majority declined to adopt this rule. But, citing the “benefit of the considerable knowledge . . . gained regarding the impact of implicit bias in jury selection,” the 2023 court took the opposite course and recalled its prior mandate, reversed Rhone’s convictions, and remanded for a new trial.[4]
Rhone was originally tried on charges of first degree robbery, unlawful possession of a controlled substance with intent to deliver, unlawful possession of a firearm, and bail jumping.[5] “During jury selection, both parties agreed to remove one of two Black venire jurors in the 41-member pool for cause.”[6] The prosecution used a peremptory challenge to strike the one remaining Black juror.[7] After the court swore in the jury, Rhone gave a statement where he said he wanted a “jury of his peers,” including someone who “represents my culture as well as your culture . . . . I would like someone of culture, someone of color, that has—perhaps maybe have had to deal with [improprieties] and so forth, to understand what’s going on and what could be happening in this trial.”[8] The court understood this statement as a Batson challenge, found no prima facie case of discrimination, and declined the prosecution’s offer to respond. The court concluded “the defendant has not provided this Court with any evidence of circumstances raising an inference of discrimination by the prosecution . . . The mere fact that [sic] State exercised its preemptory [sic] on that African American, without more, is insufficient to establish a prima facie case of discrimination.”[9]
After the court denied Rhone’s request for a new jury panel, the jury convicted him of all charges, and he received a life sentence without possibility of parole for two of his convictions. Rhone appealed, and Washington’s court of appeals upheld the conviction. The Washington Supreme Court granted review of the Batson issue only. It did not recognize a bright line rule and held, in a fractured opinion, that a trial court may, but is not required to, find a prima facie case of discrimination in such circumstances.
In 2017, the Washington Supreme Court changed course and found, in City of Seattle v. Erickson, that a trial court must find a prima facie case of discrimination in similar circumstances. Rhone sought collateral relief based on Erickson.
The court began its analysis by noting criminal defendants have a constitutional right to be tried by a jury selected by nondiscriminatory criteria.[10] Batson v. Kentucky, the leading Supreme Court case on the topic from 1986, sets forth a three-part test for ensuring that preemptory strikes are nondiscriminatory: (1) The party challenging the strike must establish a prima facie case that gives rise to an inference of discriminatory purpose; (2) if a prima facie case is established, the striking party must provide an adequate race-neutral explanation; and (3) if a race-neutral explanation is provided, the trial court must weigh the circumstances to decide whether the strike was racially motivated.[11]
The Washington Supreme Court has modified Batson’s first and third steps to fashion a more robust test to deter racially biased jury selection. City of Seattle v. Erickson modifies Batson’s first step by establishing a presumption that there is a prima facie case of discrimination when the last person of a racial group is struck from a jury venire.[12]
In deciding this case, the court stated that “[t]he Batson framework has been roundly criticized for its inefficacy at prohibiting discriminatory peremptory strikes,” and cited a concurrence by U.S. Supreme Court Justice Stephen Breyer “surveying studies finding Batson challenges rarely succeed.”[13] Therefore, “[r]ecognizing that racism continues to plague jury selection” and the need to “develop a greater awareness of our own conscious and unconscious biases . . . in a way that brings greater racial justice to the system as a whole,” the court offered Rhone the collateral relief he sought.[14]
In support of its claims about unconscious biases, the court cited a report published by the Equal Justice Initiative titled Race and the Jury: Racial Discrimination in Jury Selection.[15] It did not cite any empirical studies directly. Although implicit bias research has been widely criticized in both scholarly and popular publications,[16] the opinion did not cite or attempt to address any of those critiques.
This opinion is significant because of its reliance on implicit bias research as a justification for expanding the Batson test. It remains to be seen if other states follow suit and how, if at all, they address criticisms of implicit bias research.
[1] Matter of Rhone, 528 P.3d 824, 825 (Wash. 2023).
[2] Id.
[3] In Henderson v. Thompson, 200 Wash. 2d 417 (2022), a black plaintiff (Henderson) sued a white defendant over an auto accident, claiming that the crash exacerbated her Tourette’s syndrome. She sought $3.5 million in damages but was awarded $9,200 by the jury. Id. at 424. Henderson claimed that the jury was motivated by racism, citing statements by the defense counsel that plaintiffs’ counsel was “quite combative” to argue that she “played on stereotypes about angry Black women.” Id. at 437. The Washington Supreme Court reversed the trial court, remanding for a hearing that, according to Justice Samuel Alito, “appears to have no precedent in American law.” Thompson v. Henderson, 600 U.S. ____ (2023) (Alito, J., joined by Thomas, J., statement respecting the denial of certiorari) (slip op., at 2). Justice Alito concurred in the decision to deny certiorari because of the case’s interlocutory posture, but he expressed grave concerns about the due process and equal protection implications of the Washington Supreme Court’s ruling: “In any case between a white party and a black party, the attorney for the white party must either operate under special, crippling rules or expect to face an evidentiary hearing at which racism will be presumed and the attorney will bear the burden of somehow proving his or her innocence.” Id. at 3.
[4] Matter of Rhone, 528 P.3d at 825.
[5] Id.
[6] Id.
[7] Id.
[8] Id. (quoting State v. Rhone, 229 P.3d 752 (Wash. 2010)).
[9] Id.
[10] Id. (citing Batson v. Kentucky, 476 U.S. 79 (1986)).
[11] Id. (citing Batson, 476 U.S. at 94).
[12] Id. (citing City of Seattle v. Erickson, 398 P.3d 1124 (Wash. 2017)). State v. Jefferson modifies its third step by requiring trial courts to ask whether an objective observer would think race was a factor in the use of the preemptory challenge. State v. Jefferson, 429 P.3d 467 (Wash. 2018).
[13] Id. at 826 (discussing Miller-El v. Dretke, 545 U.S. 231, 267-69 (2005) (Breyer, J., concurring)).
[14] Id. at 827.
[15] Id. at 827 n.2, citing Race and the Jury (eji.org), available at https://www.eji.org/reports/race-and-the-jury-overview.
[16] See, e.g., Althea Nagai, The Implicit Association Test: Flawed Science Tricks Americans Into Believing They Are Unconscious Racists, The Heritage Foundation: Special Report, December 12, 2017; Jesse Singal, Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job, New York Magazine, January 11, 2017 (popular piece summarizing the academic literature, with abundant links); Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias, Psychology Today, March 28, 2022.
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