GR 37 - Jury SelectionComments for GR 37 must be received no later than April 30, 2017.
GR
9 COVER SHEET Suggested Change to the GENERAL RULES Rule 36 – Jury Selection Submitted by the American Civil
Liberties Union of Washington A.
Name of Proponent:
American Civil Liberties Union of Washington B.
Spokesperson: Sal
Mungia, Gordon Honeywell and Thomas and ACLU-WA Cooperating Attorney; and La
Rond Baker, ACLU-WA Staff Attorney. C.
Purpose: Proposed
General Rule 36 (“GR 36”) is a new rule meant to protect Washington jury trials
from intentional or unintentional, unconscious, or institutional bias in the
empanelment of juries. In State v. Saintcalle, the Washington State Supreme Court expressed
concerns that the federal Batson v.
Kentucky test provides insufficient protections to potential jurors of
color from biased use of peremptory challenges. [1]
Batson
created a standard under which a court can only sustain a challenge to a
peremptory strike after three conditions are satisfied: (1) “the person challenging the peremptory must ‘make out a
prima facie case of purposeful discrimination by showing that the totality of
the relevant facts gives rise to an inference of discriminatory purpose”;
(2) the striking party must “come forward with a
[race-]neutral explanation’ for the challenge”; and (3) the court must “determine if the defendant has established purposeful discrimination.”.[2] State v. Saintcalle, 178 Wn.2d 34, 42,
309 P.3d 326 (2013) (citations omitted) (alteration in original) (emphasis
added). Batson
was
the United States Supreme Court’s solution to the failures of the previous test
for determining whether a peremptory strike was invalid because of bias. However, over the years it has become
evident that Batson fails to
adequately protect potential jurors and the justice system from biased use of
peremptories. [3] This is because Batson requires parties
to meet an extremely high bar to show that a peremptory challenge was motivated
by bias. Batson requires attorneys to allege, and judges to find, purposeful
discrimination and fails to acknowledge that bias can be subtle, institutional,
or inadvertent.[4] The Washington State Supreme Court in Saintcalle explained that “it is evident
that Batson, like Swain before it, is failing us.”[5]
The Court recognized there was ample
data demonstrating that racial bias in the jury selection process remained
“rampant”: Twenty-six years
after Batson, a growing body of
evidence shows that racial discrimination remains rampant in jury
selection. In part, this is because Batson recognizes only “purposeful
discrimination,” whereas racism is often unintentional, institutional, or
unconscious. We conclude that our Batson
procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination. Saintcalle,
178 Wn.2d at 36. The Saintcalle court based its concerns on “[a] growing body of
evidence . . . that Batson has done
very little to make juries more diverse.”[6] This evidence included empirical studies that
indicate that discriminatory jury selection is a problem nationwide.[7] It also included the fact that “[i]n over 40
cases since Batson, Washington
appellate courts have never reversed
a conviction based on a trial court’s erroneous denial of a Batson challenge.”[8] Legal scholars have also
long noted Batson’s failure to
effectively eradicate discrimination in peremptory challenges.[9] This failure is especially pressing when one
considers issues of unconscious racism.[10],
[11]
GR 36 addresses this
problem by employing a test that utilizes an objective-observer standard. Under GR 36, the trial court would find a
peremptory strike invalid if an objective observer could find that race or
ethnicity was a factor for a peremptory challenge. GR 36 also gives trial courts the necessary
latitude to protect the justice system from bias by granting courts the freedom
to raise objections to a peremptory strike sua
sponte. It would also bring greater diversity
to juries, so that juries in Washington are more representative of the
communities they serve.[12] The rule would also improve the appearance of
fairness and promote the administration of justice. The Washington State Supreme
Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. [13],
[14] Other states have adopted court rules dealing
with the Batson issue.[15] GR 36 preserves the use
of peremptory challenges as part of the right to a jury trial while at the same
time addressing racial bias in jury selection.[16] The comment section provides guidance to the
judiciary and attorneys about how to apply the rule. By adopting this rule,
Washington will ensure that its justice system is not improperly tainted by
bias, protect Washingtonians from discrimination, ensure diversity in juries,
and address systemic, institutional, and unintentional racism in jury
selection. [1] State v. Saintcalle, 178 Wn.2d 34, 36, 309 P.3d 326 (2013). See Batson v. Kentucky, 476 U.S. 79, 106 (1986), 106 S. Ct. 1712, 90 L. Ed. 2d 69 (Marshall, J., concurring) (noting that “‘seat-of-the-pants instincts’ may often be just another term for [unconscious] racial prejudice”); Miller-El v. Dretke, 545 U.S. 231, 268, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (Breyer, J., concurring) (racial bias “may be invisible even to the prosecutor exercising the challenge”) See also Antony Page, Batson’s Blind–Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 161 (2005) (“[U]nconscious and unintentional” bias may result in racially-motivated peremptory challenges.). [2] Batson, 476 U.S. at 93-94, 96-97, 98. See also Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). [3] Saintcalle, 178 Wn.2d at 43 (criticizing Swain v. Alabama, 380 U.S. 202, 223-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) (holding that a party alleging discriminatory jury selection must demonstrate a long-standing practice of purposeful discrimination in order to succeed with an equal protection claim), overruled by Batson, 476 U.S. 79). [4] Saintcalle, 178 Wn.2d at 46-49, fn. 3 (“It is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them.” (citing Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 471 (2010))). [5] Id. at 44. [6] Id. [7] See, e.g., Mary R. Rose, The Peremptory
Challenge Accused of Race or Gender Discrimination? Some Data from One County,
23 Law & Hum. Behav. 695, 698-99 (1999) (60 percent of peremptory
challenges were used against black jurors, who made only 32 percent of the jury
pool); Catharine Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury
Selection in 173 Post-Batson North
Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1550-1557 (2012); Equal
Justice Initiative, Illegal
Discrimination in Jury Selection a Continuing Legacy, at 12 (Aug. 2010) (80
percent of qualified African Americans peremptorily struck in capital cases in
a county that is 27 percent African American), available at http://www.eji.org/files/EJI%20Race%20and%20Jury%20Report.pdf;
David C. Baldus et al., The Use of
Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis,
3 U. Pa. J. Const. L. 3, 52-53, 73, n.197 (2001) (Philadelphia prosecutors
struck 51 percent of black jurors versus only 26 percent of non-black jurors); Shamena
Anwar et al., The Impact of Jury Race in
Criminal Trials, The Quarterly Journal of Economics, at 1017-1055 (May 2012)
(having a black member of the venire results in more equitable conviction rates
for white and non-white defendants). [8] Saintcalle, 178 Wn.2d at 45-46. [9] See, e.g., Andres G. Gordon, Beyond Batson v. Kentucky: A Proposed Ethical Rule Prohibiting Racial Discrimination in Jury Selection, 62 Fordham L. Rev. 685, 686 (1993) (“Attorneys have become adept at rebutting prima facie cases of discrimination by creating ‘acceptable’ reasons for their strikes.”); Matt Haven, Reaching Batson’s Challenge Twenty-Five Years Later: Eliminating the Peremptory Challenge and Loosening the Challenge for Cause Standard, 11 U. Md. L.J. Race Religion Gender & Class 97, 97 (2011); Karen M. Bray, Reaching the Final Chapter in the Story of Peremptory Challenges, 40 UCLA L. Rev. 517, 520 (1992); Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 150 (2010). [10] For commentary on unconscious racism and implicit bias in peremptory challenges, see generally Haven, supra note 9 at 116; Bennett, supra note 9 at 158-165. [11] Haven, supra note 9, at 116. [12] The absence of non-white jurors matters, as studies indicate that diverse juries tend to consider more perspectives and spend more time deliberating than all-white juries. Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition in Jury Deliberation, 90 J. Personality and Soc. Psych. 597, 609 (2006). [13] Saintcalle, 178 Wn.2d at 37 (citing State v. Hicks, 163 Wn.3d 477, 492, 181 P.3d 831 (2008). [14] Id. at 55 (citing State v. Templeton, 148 Wn.2d 193, 212-13, 59 P.3d 632 (2002)) (noting also that a rule “might be the most effective way to reduce discrimination and combat minority underrepresentation in our jury system”). [15] See, e.g., N.Y. Code Crim. Proc. § 270.25; Tex. Code Crim. Proc. Art. 35.261; Minn. R. Crim. P. 26.02; La. Code Crim. Proc. Art. 795. [16] See Batson, 476 U.S. at 85-86; Saintcalle, 178 Wn.2d at 50. See also Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). |
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