Washington leads the way on fair jury selection

Washington 's Supreme Court adopts new rule to ensure unbiased jury.
Washington 's Supreme Court adopts new rule to ensure unbiased jury. file photo

Washington just took an important step to recognize that people of color are systematically excluded from jury service in our state and nation.

While we’re gratified ours is the first state to address a form of discrimination of which many people are unaware, forgive us if we don’t feel a big “yahoo!” is in order.

It was, after all, 1875 when Congress passed the first Civil Rights Act (thrown out eight years later by a benighted U.S. Supreme Court), which prohibited any form of racial discrimination against African Americans and ensured equal treatment in jury selection.

And yet here we are, 143 years later, thankful Washington’s Supreme Court turned its attention to a common courtroom practice known as peremptory strikes. It allows lawyers from both sides to interview potential jurors and purge those who might be unsympathetic to their case, without giving a reason.

Potential jurors could be asked if they had prior contact with law enforcement or if they had close relationships with people who had been stopped, arrested or convicted of a crime.

The peremptory strike serves a reasonable purpose within limits, and for the last three decades, lawyers have been barred from wielding it in a blatantly racially discriminatory way. But lawyers could still strike people from jury selection if they lived in a high-crime neighborhood, received state benefits or were not native speakers.

As ACLU-WA Attorney Lila Silverstein explained, this line of questioning was often born of implicit bias and has “historically been used to exclude potential jurors of color.”

That changed April 5 when the state Supreme Court adopted a new rule for all criminal and civil jury trials in Washington. Now any “objective observer” (not just a member of the opposing legal team) can cry foul if they don’t like a lawyer’s line of questioning.

The rule says anyone aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination, can and should object if they believe race or ethnicity was a factor in a peremptory strike.

Give credit to our high court justices for heeding studies that show people of color are grossly underrepresented on juries. And there’s no denying race plays a part in judicial outcomes.

In 2012, for example, Duke University researchers examined more than 700 non-capital felony criminal cases in two Florida counties and found all-white jury pools convicted black defendants 16 percent more often than white defendants. But if even one member of the jury was black, the gap in conviction rates between white and black defendants disappeared.

Here in Washington, death row inmate Allen Eugene Gregory is part of a constitutional challenge to overturn the state’s capital punishment statute based on jury concerns.

Gregory is hardly the most sympathetic character; he was convicted for the brutal 1996 rape, robbery and murder of Geneine Harshfield in Tacoma. But Gregory’s attorneys cite a 2014 study by researchers at the University of Washington that found race influences a jury’s decision to impose a death sentence.

The study concluded that jurors, acting from unconscious bias, unintentionally discriminated against black defendants.

Silverstein, who is also affiliated with the Washington Appellate Project said, “had Allen Gregory not been black, his chances of being sentenced to death would have been notably lower.”

Washington’s Supreme Court just got us one step closer to the American ideal of a fair, color-blind and impartial judicial system. Here’s hoping other states take our lead in recognizing these discriminatory practices.