I don’t normally blog about criminal appeals because I don’t practice in the area, and frankly, I know just enough about them to be dangerous. But in the last couple of months, the Washington appellate courts have issued at least three remarkable opinions reversing criminal convictions because of the role played by racial or ethnic bias.
On June 9, 2022, the Washington Supreme Court unanimously reversed a conviction and held that race and ethnicity should be considered by the courts in analyzing whether and when a person is “seized” for purposes of deciding whether that seizure was lawful or not. I blogged about the case over at Token Majority.
Of note—to me, at least—is the court’s complete rejection that we are a colorblind society. Race/ethnicity matter because they have always mattered to people of color: “there was a time when the historical treatment of BIPOC in this court indicated that we should ignore the influence of race and ethnicity in police encounters. However, in light of more recent history, such a result can no longer be justified.” This was the nine justices of the court strongly rejecting the trope that the color of someone’s skin doesn’t matter.
On June 30, the Washington Supreme Court issued another opinion reversing the conviction of a Hispanic man, this time because of the misconduct of the prosecutor, who repeatedly made irrelevant comments during jury selection that appeared to intentionally invoke prejudice against Latinos. I tweeted about the opinion the day it came out because it was truly a remarkable opinion.
In that case, the prosecutor repeatedly raised the “wholly irrelevant” topics of border security, illegal immigration, and crimes committed by undocumented immigrants. He referenced 100,000 people crossing the border illegally each month and a recent large drug bust in an Arizona border town. The defendant was charged with third degree assault—a charge that has nothing to do with any of those topics.
In reversing the man’s conviction, the court articulated a new analysis courts must use to decide whether a prosecutor committed misconduct during jury selection such that the defendant did not receive a fair trial: would an objective observer view the prosecutor's questions and comments during jury selection as an appeal to the jury panel's protentional prejudice, bias, or stereotypes about a particular race or ethnicity? An objective observer is an “average reasonable person ... who is aware of the history of explicit race discrimination in America and aware of how that impacts our current decision-making in nonexplicit, or implicit, unstated ways."
The court also did away with the harmless error analysis, holding automatic reversal is required for race-based prosecutorial misconduct that is flagrant or apparently intentional. The court concluded that "race-based prosecutorial misconduct necessarily results in incurable prejudice and thus cannot be deemed harmless."
Finally, last week, the Court of Appeals Division III reversed the conviction of a Hispanic man because a juror who expressed actual bias was permitted on the jury which violated his right to an unbiased jury. First of all, its worth pointing out that the winning argument on appeal was advanced by the defendant himself and not his lawyer. That’s pretty wild. (Under our state rules of appellate procedure a defendant may file pro se a Statement of Additional Grounds for review to identify and discuss issues that were not addressed in the brief filed by the defendant’s lawyer. That’s what occurred here.)
In that case, during jury selection, the juror at issue raised the issue unprompted about whether the defendant was a US citizen. He said he wanted to know that information in the two prior cases he had been called for jury duty and the defendant was Hispanic, but was never told. The juror offered to ask the defendant himself whether he was a citizen. The defense lawyer and the juror then had a discussion about why the defendant’s citizenship status wasn’t going to be disclosed, including that by admitting he wasn’t a citizen he could be admitting to a crime under federal law. The juror ultimately concluded that the defendant must be a US citizen because if he wasn’t, he would have been deported by now.
The court held the juror expressed actual bias with his comments. The juror’s comments demonstrated he associated Hispanic people with being noncitizens and being guilty of a crime for being in the country illegally. As a result, the court ruled the trial court abused its discretion by failing to inquire further of the juror or excuse him sua sponte. Accordingly, the defendant’s conviction must be reversed and no showing of prejudice was required.
There were also two concurrences. For a panel of three judges to issue three different opinions is HIGHLY unusual. Judge Fearing agreed with the outcome and analysis, but he would have gone further to hold
Judge Fearing appeared to be deeply offended by the juror’s attitude:
Further implications arise from juror 16's questioning about Robert Gutierrez's immigration status. In my experience as a trial attorney and as a trial judge and in my reading of hundreds, if not thousands, of decisions, no other venireperson has attempted to ask a party a question before the presentment of the case. Juror 16's volunteering to ask Robert Gutierrez if he was a citizen evidenced a self-righteous, strident, and judgmental attitude that suggested he should not serve as a juror in any case, let alone a case wherein a Latinx is the accused. Going further, the juror's comments evidenced an entrenched ambience of superiority over Latino Americans. Without any evidence, he held entitlement to be present in the United States, but Gutierrez did not necessarily possess this entitlement. Juror 16 deemed he held the prerogative to adjudge another guilty of a crime because of the other's ethnicity. The juror would not hold this view with regard to someone who looks like him or has the same ancestry as him.
State v. Gutierrez, 37843-8-III, 2022 WL 2977380, at *12 (Wash. Ct. App. July 28, 2022)
Judge Fearing goes on to say that because racial bias is “especially pernicious in the administration of justice,” the courts should always err on the side of caution and discharge a prospective juror for cause if there is any doubt about his/her impartiality. In particular, Judge Fearing noted that a juror who indicates a strong racial bias can never be rehabilitated through further questioning.
Judge Laurel Siddoway also wrote a concurring opinion. She concurs in the result but takes issue with a portion of the majority’s opinion in which it imports the analysis used in determining whether racial bias played a role in a jury’s verdict because the two scenarios (jury selection vs. jury deliberation) are very different.
These three cases illustrate the court system’s attempts to ensure our system of justice becomes more fair, though of course there is still a long way to go.