Ruling in Pierce County case, state’s high court moves to strike racial bias from jury selection

The Washington State Supreme Court has said a Pierce County man convicted of attempted murder deserves a new trial because race might have been a factor in the dismissal of a juror from his case.

The ruling Thursday also changed a test for racial bias in jury selection, which the high court said wasn’t sufficient to diversify juries and prevent racial discrimination.

“We need to do better to achieve the objectives of protecting litigants’ rights to equal protection of the laws and jurors’ rights to participate in jury service free from racial discrimination,” Justice Sheryl Gordon McCloud wrote for the majority, in an opinion signed by justices Mary Fairhurst, Susan Owens and Charles Wiggins.

Attorney Lise Ellner, who represented 30-year-old Tyree Jefferson in his appeal, told The News Tribune: “In this case they really stepped up and created a test that will address racial discrimination, and I think other states will follow suit.”

The ruling is a “bright spot in an otherwise dark time for people of color, people who are feeling disenfranchised,” Ellner said.

The ACLU of Washington, which has advocated for similar rule changes, agreed.

The decision “will reduce discrimination, honor the dignity of jurors and promote respect for the justice system,” the ACLU said in a statement emailed to The News Tribune on Thursday. “Individuals who honor their civic duty and report for jury service should not be humiliated by being discharged due to unconscious stereotypes, nor should defendants be put on trial before juries who are not representative of the community.”

Michelle Hyer is the supervisor of the Appeals Division of the Pierce County Prosecutor’s Office.

“The Superior Court judge who observed the trial found that the challenge to the juror in question did not constitute racial discrimination. ... the jury found Mr. Jefferson guilty of attempted murder,” Hyer said in an email to The News Tribune. “We are confident we will again prevail at trial and hold Mr. Jefferson accountable.”

Jefferson was in a fight in February 2013 in Lakewood about a pair of designer sunglasses that ended with another man being shot, according to court records.

Jefferson contended he didn’t pull the trigger, but jurors ultimately convicted him of attempted first-degree murder and unlawful gun possession, and he was sentenced to more than 28 years in prison.

Jefferson, who is black, argued on appeal that his jury selection was unfair.

At the time, attorneys could use so-called peremptory challenges or strikes during the jury selection process to remove potential jurors, and Jefferson argued race was factor when the state decided to remove the only remaining African American juror in his case — Juror 10.

The state told the court that juror indicated that the jury selection process was a waste of time, expressed enthusiasm about the movie “12 Angry Men” (which is about a criminal trial) and had brought outside evidence into deliberations when he was a juror in a prior trial.

“While each justification provided for the strike seems reasonable when viewed separately, as a whole Juror 10’s responses were not that different from those provided by the jurors who eventually sat on the jury panel,” Gordon McCloud wrote.

The test for racial bias at the time of Jefferson’s trial required the judge to decide whether it had been proven that the state was purposefully discriminatory in striking the juror.

The high court said Pierce County Superior Court Judge Frank Cuthbertson was right at the time to say no.

But that test has “done very little to make juries more diverse or to prevent prosecutors from exercising race-based challenges,” a majority of the high court said in Thursday’s decision.

The revised test asks whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge,” and, if the answer is yes, the strike must be denied.

“In this case, an objective observer could view race as a factor in the peremptory strike of Juror 10,” the high court said, which means Jefferson needs a new trial.

In a concurring opinion signed by Justice Steven Gonzalez, Justice Mary Yu wrote that getting rid of peremptory challenges all together is necessary to free jury selection of racial bias.

“We just need to say no to removing jurors based on a hunch,” Yu wrote.

Justice Barbara Madsen wrote a partially concurring and partially dissenting opinion, signed by justices Debra Stephens and Charles Johnson, in which she agreed that the juror’s dismissal was racially motivated but argued the change to the test is a “carbon copy” of a court rule that took effect earlier this year.

That rule says in part: “If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge.”

The high court wouldn’t have made the rule if it wanted it to have constitutional protections, Madsen wrote.

Asked by The News Tribune about the significance of Thursday’s ruling, given the existing court rule, Ellner pointed out that the existing rule doesn’t provide a remedy, such as a new trial.