State v. Saintcalle

Fl LE
IN CLERKS OFFICE
atJPm:ME COURT, STI\TE OF WliSHtNGTON
AUG 01 2013

UPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 86257-5
)
V. ) En Bane
)
KIRK RICARDO SAINTCALLE, )
) Filed AUG 01 2013
Petitioner. )
)

WIGGINS, J.-This appeal raises important questions about race

discrimination in our criminal justice system. Kirk Saintcalle, a black man,

challenges his conviction for first felony degree murder because the State used a

peremptory challenge to strike the only black venireperson in his jury pool.

Saintcalle claims the peremptory strike was clearly racially motivated in violation

of the equal protection guaranty enshrined in Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We disagree. Batson requires a finding

of purposeful discrimination, and the trial court's finding that there was no

purposeful discrimination here is not clearly erroneous. Accordingly, we affirm

Saintcalle's conviction.

However, we also take this opportunity to examine whether our Batson

procedures are robust enough to effectively combat race discrimination in the

selection of juries. We conclude that they are not. Twenty-six years after Batson,

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No. 86257-5

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.

But we will not create a new standard in this case because the issue has

not been raised, briefed, or argued, and indeed, the parties are not seeking to

advance a new standard. Applying Batson, we affirm the Court of Appeals.

FACTS

Kirk Saintcalle was convicted of one count of first degree felony murder and

three counts of second degree assault, all with firearm enhancements. Saintcalle

was accused of entering an apartment in the city of Auburn with two companions,

holding three people at gunpoint, and shooting and killing Anthony Johnson.

Saintcalle was sentenced to 579 months in prison.

During jury selection at Saintcalle's trial, the prosecution used a peremptory

challenge to strike the only black juror in the venire, juror 34, Anna Tolson. This

challenge came after the prosecution questioned juror 34 extensively during voir

dire-far more extensively than any other juror. Indeed, most of the prosecution's

interactions with jurors were quite brief, usually consisting of only a few short

questions, but not the interaction with juror 34. The State began questioning juror

34 after another juror made a comment about race:

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No. 86257-5

[JUROR 72]: I feel there are some areas of unfairness in our
system. I am aware, for example, that a jury of their peers [sic], yet as
you look around this panel, all of the faces are white.

[JUROR 34]: No, not quite.

(Laughter.)

[PROSECUTOR]: You know what, you kind of bring a very
important topic to light. If you were seated here in this chair and you
looked out at this panel, would you have any concern about whether or
not people are going to be able to relate to you or listen to you or feel
for you? Juror number-What is your number? Juror number 34, I am
going to ask you a little bit about your background. You work at the
YMCA?

[JUROR 34]: I work in a middle school.

[PROSECUTOR]: So tell me how that works. So you are a
counselor?

[JUROR 34]: Yes.

[PROSECUTOR]: Which means you see a whole lot.

[JUROR 34]: Yes.

[PROSECUTOR]: And where do you work? What school do you
work in?

[JUROR 34]: Do I really need to say that?

[PROSECUTOR]: How about you just tell me the city. Is it an
inner city school?

[JUROR 34]: Yes.

[PROSECUTOR]: You see a whole lot?

[JUROR 34]: Yes.

[PROSECUTOR]: I am interested to hear from you-1 mean, do
you have impressions about the criminal justice system?

[JUROR 34]: Yes.

[PROSECUTOR]: You are not going to hurt my feelings if you
talk about them a little bit. What are your thoughts?

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No. 86257-5

[JUROR 34]: Gosh, I feel like I am on the spot here.

But being a person of color, I have a lot of thoughts about the
criminal system. I see-1 have seen firsthand-and a couple people
have already mentioned that if you have money, you tend to seem to
work the system and get over. And regardless if you are innocent or
guilty, if you want to be innocent, your money says you are innocent.

And a person of color, even if you do have an affluent lawyer
who has the background, the finance to get you off, because you are a
person of color, a lot of times you are not going to get that same kind of
opportunities.

And especially with this person being a person of color and being
a male, I am concerned about, you know, the different stereotypes.
Even if we haven't heard anything about this case, we watch the news
every night. We see how people of color, especially young men, are
portrayed in the news. We never hardly ever see anyone of color doing
something positive, doing something good in their community.

So kind of like what the person behind me is saying, since most
of the people in this room are white, I am wondering what's running
through their mind as they see this young man sitting up here.

[PROSECUTOR]: Right. How about for you, do you think-1
mean, you've got a whole lot that you are feeling as you sit here and
that you are going to be asked to sit in judgment of somebody. How do
you think you are going to be able to handle that?

[JUROR 34]: I think number one, because I am a Christian, I
know I can listen to the facts and, you know, follow the judge's
instruction. But also it's kind of hard, and I haven't mentioned this
before because none of those questions have come up for me to
answer, but I lost a friend two weeks ago to a murder, so it's kind of
difficult sitting here. Even though I don't know the facts of this
particular case, and I would like to think that I can be fair because I am
a Christian, I did lose someone two weeks ago.

[PROSECUTOR]: Was that in Seattle?

[JUROR 34]: Yes.

[PROSECUTOR]: Was that [the] Tyrone case?

[JUROR 34]: Yes.

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No. 86257-5

Report of Proceedings (RP) (Mar. 9, 2009) at 65-68. After a stretch break, the

prosecutor resumed questioning juror 34:

[PROSECUTOR]: Juror number 34, I am going to move on to the
group, but I wanted to close the loop with you. You have a lot that is
going through your mind currently both that would give you a lot of
empathy for someone who is charged with a crime and also empathy
for someone who may be a victim of a crime. In that way, you may be
representative of the perfect juror.

At the same time, we don't put people in a position where it's
going to cause them a lot of emotional pain. At this point do you think
you could sit in this case and listen to the facts and make a decision
based solely on the evidence presented in trial here and be fair to both
sides?

[JUROR 34]: I'd like to think that I could be, but kind of what you
just mentioned just with the freshness and the rawness of the death of
a friend, I am wondering if that would kind of go through my mind. I like
to think that I am fair and can listen, be impartial, but I don't know. I
have never been on a murder trial and have just lost a friend two weeks
prior to a murder.

[PROSECUTOR]: What I am going to do, I am going to ask
questions. I am going to kind of move on to the rest of the group so
that you have time to think, and then we'll come back and ask you
maybe tomorrow to make your final decision about whether or not you
think you can be fair. I am sorry for your loss.

/d. at 69-70. The next day, a different deputy prosecuting attorney followed

up with juror 34:

[PROSECUTOR]: Go back to [a] couple [of] people juror number
34 sorry [to] focus on you again after yesterday but I just want to try
and go back [and] touch base with you. I know[] you mentioned
yesterday that you had some recent events in your life that may make it
difficult for you to serve as jurors [sic] in [this case]. Have you done
anymore thinking about that? How are you feeling today?

[JUROR 34]: Yes. I thought about it last night as well as this
morning. And, you know, my thought is I don't want to be a part of this
jury because of the situations, and the circumstances that I just went
through. But I'm thinking if ever I was put in a situation where I needed
twelve people who could be honest and look through all the facts or I

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No. 86257-5

guess I'm saying who could be like me I would want me. So
sometimes you have to do things that you don't want to do.

[PROSECUTOR]: I guess my only concern is do you feel like
maybe some of the emotions that dredge up could cloud your judgment
at all on either side. Either you know against the defendant, against
the State or I'm just concerned about that particular issue?

[Court inquires whether juror 34 would like to answer the
question in private, but juror 34 declines.]

[PROSECUTOR]: So is that something you can set aside or
worried at all about the emotions kind of clouding in? I mean, it's just
so new in terms of your life?

[JUROR 34]: I mean, I have never been in this situation where I
have lost someone. You just went to the funeral. He is young. Only
24. And to be called to jury duty to perhaps be on a jury of a murder
suspect. I don't know how I'm going to react. You know, I don't know.
I'm-I'm not an emotional person, but I'm thinking as we go through it,
and I hear the testimony, and I see the pictures, I don't know. I mean,
I'm just being honest. I don't know how I'm going to feel.

RP (Mar. 10, 2009) at 41-43.

After this exchange, the prosecution challenged juror 34 for cause. The

judge denied the challenge, and the prosecution announced its intent to exercise

a peremptory strike. At that point, Saintcalle raised a Batson challenge.

As required by Batson, the judge first found that Saintcalle had made a

prima facie showing of purposeful discrimination. Next, the prosecution

presented race-neutral reasons for striking juror 34: the reasons were (1) juror

34's "inattention" during voir dire and (2) the recent death of juror 34's friend. /d.

at 101-02. The prosecutor claimed to have spent "a lot of time watching juror 34"

and asserted that juror 34 was "very checked out." /d. at 101.

The judge denied the Batson challenge, stating on the record that he

accepted the recent death of juror 34's friend as a proper race-neutral reason for

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No. 86257-5

the strike. Near the end of jury selection, the prosecution peremptorily struck

juror 34, excusing her from the jury.

The prosecution also attempted to exercise a peremptory against the sole

Mexican-American juror in the venire, juror 10, but the judge sustained

Saintcalle's Batson challenge to that strike, rejecting each of the prosecutor's

proffered reasons as pretextual. /d. at 119-20.

After Saintcalle was convicted, he appealed, alleging that the peremptory

strike of juror 34 (Ms. Tolson) violated the Fourteenth Amendment's guaranty of

equal protection. The Court of Appeals rejected his argument finding there was

no purposeful discrimination and accepting the State's race-neutral explanation.

State v. Saintca/le, noted at 162 Wn. App. 1028, 2011 WL 2520000 (2011 ). We

granted review only on the Batson issue. State v. Saintca/le, 172 Wn.2d 1020,

268 P.3d 224 (2011 ).

STANDARD OF REVIEW

We review Batson challenges for clear error, deferring to the trial court to

the extent that its rulings are factual. State v. Hicks, 163 Wn.2d 477, 486, 181

P.3d 831 (2008) (citing State v. Luvene, 127 Wn.2d 690, 699, 699, 903 P.2d 960

(1995) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114

L. Ed. 2d 395 (1991 ))). Clear error exists when the court is left with a definite and

firm conviction that a mistake has been committed. E.g., Ass'n of Rural

Residents v. Kitsap County, 141 Wn.2d 185, 196, 4 P.3d 115 (2000).

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No. 86257-5

ANALYSIS

Race discrimination in courtrooms "raises serious questions as to the

fairness of the proceedings conducted there." Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991 ).

Discrimination "mars the integrity of the judicial system and prevents the idea of a

democratic government from becoming a reality." /d.

It is crucial that we have meaningful and effective procedures for identifying

racially motivated juror challenges because "[r]acial discrimination in selection of

jurors harms not only the accused whose life or liberty they are summoned to try";

it also shamefully belittles minority jurors who report to serve their civic duty only

to be turned away on account of their race. Batson, 476 U.S. at 87. Perhaps

most damaging, racial discrimination "undermine[s] public confidence in the

fairness of our system of justice." 1 /d. at 87-88. Racial discrimination in the

qualification or selection of jurors offends the dignity of persons and the integrity

of the courts, and permitting such exclusion in an official forum compounds the

racial insult inherent in judging a citizen by the color of his or her skin.

Edmonson, 500 U.S at 628.

1
A recent report by Washington's Race and Equal Justice Task Force notes that "'bias
pervades the entire legal system in general and hence [minorities] do not trust the court
system to resolve their disputes or administer justice even-handedly."' TASK FORCE ON
RACE AND THE CRIMINAL JUSTICE SYSTEM, PRELIMINARY REPORT ON RACE AND WASHINGTON'S
CRIMINAL JUSTICE SYSTEM at 6 (2011) (alteration in original),
available at http://www.law.washington.edu/About/RaceTaskForce/preliminary
_report_race_criminaljustice_030111.pdf (quoting WASH. ST. MINORITY & JUSTICE
COMM'N, 1990 FINAL REPORT at xxi (1990), available at http://www.courts.wa.gov/
committee/pdf/TaskForce.pdf).

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No. 86257-5

Batson sets forth a three-part analysis for determining whether a

peremptory strike unconstitutionally discriminates based on race. First, 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 Batson, 476 U.S. at 93-94.

Second, "the burden shifts to the State to come forward with a [race-]neutral

explanation" for the challenge. /d. at 97. Third, "the trial court then [has] the duty

to determine if the defendant has established purposeful discrimination." /d. at

98. If the trial court finds purposeful discrimination, the challenge should be

granted and the peremptory strike disallowed.

As part of the "purposeful discrimination" analysis, the Supreme Court has

established a comparative juror analysis. This entails examining whether the

proffered race-neutral explanation could apply just as well to a nonminority juror

who was allowed to serve. Mil/er-E/ v. Dretke, 545 U.S. 231, 241, 125 S. Ct.

2317, 162 L. Ed. 2d 196 (2005). A corollary is that disparate questioning of

minority jurors can provide evidence of discriminatory purpose because it creates

an appearance that an attorney is "fishing" for a race-neutral reason to exercise a

2
The State argued for the first time in its supplemental brief that we should repudiate the
bright line rule approved by a majority of this court that "a defendant establishes a prima
facie case of discrimination when . . . the record shows that the State exercised a
peremptory challenge against the sole remaining venire member of the defendant's
constitutionally cognizable racial group." State v. Rhone, 168 Wn.2d 645, 659, 229 P.3d
752 (2010) (Alexander, J., dissenting) Rhone was a split decision, with a four-justice
lead opinion rejecting the proposed bright line rule, a four-justice dissent supporting it,
and Chief Justice Madsen concurring stating that "I agree with the lead opinion in this
case. However, going forward, I agree with the rule advocated by the dissent." /d. at
658 (Madsen, C.J., concurring). We grant Saintcalle's motion to strike the issue because
any statement about the Rhone bright line rule would be dictum in this case and because
the State failed to raise the issue in a timely manner. RAP 13.4(d).

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No. 86257-5

strike. /d. at 244-45; Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). We

do not allow prosecutors to go fishing for race-neutral reasons and then hide

behind the legitimate reasons they do find. This disproportionately affects

minorities.

Similarly, a proffer of pretextual reasons gives rise to an inference of race

discrimination, and a court's finding of discrimination against one juror is evidence

of discrimination against other jurors. Snyder v. Louisiana, 552 U.S. 472, 485,

478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008).

I. Batson in context

Since 1879, the United States Supreme Court has recognized that race

discrimination in the selection of jurors violates the Fourteenth Amendment's

guaranty of equal protection. See Strauder v. West Virginia, 100 U.S. (10 Otto)

303, 309-10, 25 L. Ed. 664 (1879). But to contextualize Batson we must look to

its origins.

Two decades before Batson, the United States Supreme Court held in

Swain v. Alabama that purposeful discrimination in the use of peremptory

challenges violates the equal protection clause. 380 U.S. 202, 223-24, 85 S. Ct.

824, 13 L. Ed. 2d 759 (1965), overruled by Batson, 476 U.S. 79. Under Swain, a

single act of racism was not sufficient to make out an equal protection claim; a

person alleging race discrimination had to prove a long-running pattern of

purposefully discriminatory acts. /d. at 221-22.

Swain did little to curb racial discrimination, establishing a "crippling burden

of proof" and leaving peremptories "largely immune from constitutional scrutiny."

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No. 86257-5

Batson, 476 U.S. at 92-93. Batson reexamined Swain in light of this reality,

rejecting Swain's "crippling burden" and establishing the now-familiar three-part

test for scrutinizing peremptories. /d. at 92-93, 97-98.

Twenty-six years later it is evident that Batson, like Swain before it, is failing

us. Mil/er-E/, 545 U.S. at 270 (Breyer, J., concurring) ("[T]he use of race- and

gender-based stereotypes in the jury-selection process seems better organized

and more systematized than ever before."). A growing body of evidence shows

that Batson has done very little to make juries more diverse or prevent

prosecutors from exercising race-based challenges. Justice Breyer explains,

concurring in Mil/er-E/ and citing a laundry list of sources concluding the same

thing:

Given the inevitably clumsy fit between any objectively
measurable standard and the subjective decisionmaking at issue, I am
not surprised to find studies and anecdotal reports suggesting that,
despite Batson, the discriminatory use of peremptory challenges
remains a problem. See, e.g., [David C.] Baldus, [George] Woodworth,
[David] Zuckerman, [Neil Alan] Weiner, & [Barbara] Broffitt, 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) (in 317
capital trials in Philadelphia between 1981 and 1997, prosecutors
struck 51% of black jurors and 26% of non black jurors; defense
counsel struck 26% of black jurors and 54% of nonblack jurors; and
race-based uses of prosecutorial peremptories declined by only 2%
after Batson); [Mary R.] Rose, The Peremptory Challenge Accused of
Race or Gender Discrimination? Some Data from One County, 23 LAW
AND HUMAN BEHAVIOR 695, 698-699 (1999) (in one North Carolina
county, 71% of excused black jurors were removed by the prosecution;
81% of excused white jurors were removed by the defense); [Neely]
Tucker, In Moore's Trials, Excluded Jurors Fit Racial Pattern,
WASHINGTON POST, Apr. 2, 2001, p. A1 (in D.C. murder case spanning
four trials, prosecutors excused 41 blacks or other minorities and 6
whites; defense counsel struck 29 whites and 13 black venire
members); [George E.] Mize, A Legal Discrimination; Juries Aren't
Supposed to be Picked on the Basis of Race and Sex, But It Happens
All the Time, WASHINGTON POST, Oct. 8, 2000, p. 88 (authored by judge

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No. 86257-5

on the D.C. Superior Court); see also [Kenneth J.] Melilli, Batson in
Practice: What We Have Learned About Batson and Peremptory
Challenges, 71 NOTRE DAME L. REV. 447, 462-464 (1996) (finding
Batson challenges' success rates lower where peremptories were used
to strike black, rather than white, potential jurors); [Jeffrey S.] Brand,
The Supreme Court, Equal Protection and Jury Selection: Denying
That Race Still Matters, 1994 W1s. L. REV. 511, 583-589 (examining
judicial decisions and concluding that few Batson challenges succeed);
[Eric N. Einhorn] Note, Batson v. Kentucky and J.E.B. v. Alabama ex
ref. T B.: Is the Peremptory Challenge Still Preeminent? 36 BoSTON
COLLEGE L. REV. 161, 189, and n. 303 (1994) (same); [Jean] Montoya,
The Future of the Post-Batson Peremptory Challenge: Voir Dire by
Questionnaire and the 11Biind" Peremptory, 29 U. MICH. J.L. REFORM
981, 1006, nn. 126-127, 1035 (1996) (reporting attorneys' views on the
difficulty of proving Batson claims).

545 U.S. at 268-69. A recent report by the Equal Justice Initiative reaches the

same dire conclusion: peremptory challenges have become a cloak for race

discrimination. EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY

SELECTION: A CONTINUING LEGACY (hereinafter EQUAL JUSTICE INITIATIVE REPORT)

(Aug. 201 0), available at http://eji.org/eji/files/EJI%20Race%20and%20Jury%

20Report. pdf.

It would be na'fve to assume Washington is somehow immune from this

nationwide problem. Our Race and Equal Justice Task Force concluded that

"[t]he fact of racial and ethnic disproportionality in [Washington's] criminal justice

system is indisputable." TASK FORCE ON RACE AND THE CRIMINAL JUSTICE SYSTEM,

PRELIMINARY REPORT ON RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM

(hereinafter TASK FORCE REPORT) at 1 (2011),

available at http://www.law.washington.edu/About/RaceTaskForce/preliminary

_report_race_criminaljustice_030111.pdf.

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No. 86257-5

In 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. See Suppl. Br. of Pet'r at 2, App. A (collecting cases). Saintcalle's

brief cites 42 Washington Batson cases, all of which affirm a trial court's denial of

a Batson challenge. Of those 42 cases, 28 involve the prosecution removing

every prospective juror of the same race as the defendant-usually one or two

black jurors. In only six of these cases were minority jurors permitted to serve,

and in eight it is unclear from the record whether minorities were permitted to

serve or not. This is rather shocking and underscores the substantial discretion

that is afforded to trial courts under Batson. And while this alone does not prove

that Batson is failing, it is highly suggestive in light of all the other evidence that

race discrimination persists in the exercise of peremptories.

In short, Batson, like Swain before it, appears to have created a "crippling

burden" making it very difficult for defendants to prove discrimination even where

it almost certainly exists.

II. The changing face of race discrimination

In part, the problem is that racism itself has changed. 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. 3 Racism now lives not in the open but beneath the

3
"The general findings, confirmed by hundreds of articles in peer-reviewed scientific
journals are that '[i]mplicit biases-by which we mean implicit attitudes and
stereotypes-are both pervasive (most individuals show evidence of some biases), and
large in magnitude, statistically speaking. In other words, we are not, on average or
generally, cognitively colorblind."' TASK FORCE REPORT, supra, at 19 (alteration in

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No. 86257-5

surface-in our institutions and our subconscious thought processes-because

we suppress it and because we create it anew through cognitive processes that

have nothing to do with racial animus.

Many scholars have written on the topic of unconscious prejudice and

implicit bias. 4 In one representative article, Antony Page, Batson's Blind-Spot:

Unconscious Stereotyping and The Peremptory Challenge, 85 B.U. L. REV. 155

(2005), the author explains how unconscious biases are formed, why they persist,

and how they affect our decisionmaking:

In the late 1970s, ... as part of the "cognitive revolution,"
psychologists began to explore the notion that discrimination and other
forms of biased intergroup judgment may result from ordinary, routine
and completely normal cognitive mental processes. The results of this
research suggest that a basic way in which people try to understand
their world-categorization-can, of its own accord, lead to
stereotyping and discrimination.

/d. at 181 (footnotes omitted). Explaining how race discrimination results from

ordinary cognitive processes, he notes that "'[t]he human mind must think with the

aid of categories .... We cannot possibly avoid this process .... Life is just too

short to have differentiated concepts about everything."' /d. at 185 (quoting

GORDON W. ALLPORT, THE NATURE OF PREJUDICE 20, 173 (1954) (alterations in

original) (quoting Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit
Bias and the Law, 58 UCLA L. REV. 465, 471 (201 0)).
4
See, e.g., Eva Paterson, Kimberly Thomas Rapp, & Sara Jackson, The ld, The Ego,
and Equal Protection in the 21st Century: Building upon Charles Lawrence's Vision To
Mount a Contemporary Challenge to the Intent Doctrine, 40 CONN. L. REV. 1175 (2008);
GORDON W. ALLPORT, THE NATURE OF PREJUDICE 20, 173 (1954); HOWARD J. EHRLICH, THE
SOCIAL PSYCHOLOGY OF PREJUDICE 35 (1973); see Felicia Pratto & Oliver P. John,
Automatic Vigilance: The Attention-Grabbing Power of Negative Social Information, 61 J.
PERSONALITY & Soc. PSYCHOL. 380, 381 (1991 ).

14
No. 86257-5

original)). So we use schemas, 5 categories, and cognitive shortcuts that lead us

to unknowingly discriminate: 6

Once stereotypes have formed, they affect us even when we are
aware of them and reject them. Stereotypes can greatly influence the
way we perceive, store, use, and remember information.
Discrimination, understood as biased decision-making, then flows from
the resulting distorted or unobjective information. The attorney
exercising the peremptory challenge will be unaware of this biased
information processing and so will be unaware of her gender- or race-
based discrimination ....

To put it simply, good people often discriminate, and they often
discriminate without being aware of it.

/d. at 160-61 (footnotes omitted). Compounding this problem is that stereotyping

is often part of our so-called "social heritage":

[S]tereotypes about ethnic groups appear as a part of the social
heritage of society. They are transmitted across generations as a

5
Social schemas can exist at any level of abstraction and along any
dimension, such as identity group (for example, race), character traits (for
'example, dominance), physical traits (for example, tall), social roles (for
example, occupation), or general person impressions. Whites in America may
attribute to blacks character traits such as laziness or hostility, physical traits
such as kinky hair, roles such as entertainer or drug-dealer, and an overall
negative person impression.

Page, supra, at 189.
6
People generally match and compare incoming information with the
most relevant schema or sub-schema. They then tend to order and process
new related stimuli in keeping with other elements of the schema. A schema
essentially operates as an implicit theory, which reflexively "directs the
perceiver's attention . . . mediates inferences . . . guides judgment and
evaluation; and ... fills in ... values for unexpected attributes." It is a way to
integrate new material into familiar understanding and a way to draw
conclusions beyond the information given. Not only do we assume the British
are reserved or that Canadians are funny (if they are), but we also expect the
British to act reserved and Canadians to be funny.

Page, supra, at 189-90 (alterations in original) (footnotes omitted) (quoting Eliot R. Smith,
Mental Representation and Memory, in 1 HANDBOOK OF SOCIAL PSYCHOLOGY 391, 404
(Daniel T. Gilbert et al. eds., 4th ed. 1998)).

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No. 86257-5

component of the accumulated knowledge of society. They are as true
as tradition, and as pervasive as folklore. No person can grow up in a
society without having learned the stereotypes assigned to the major
ethnic groups.

HOWARD J. EHRLICH, THE SOCIAL PSYCHOLOGY OF PREJUDICE 35 (1973).

Unconscious stereotyping upends the Batson framework. Batson is only

equipped to root out "purposefuf' discrimination, which many trial courts probably

understand to mean conscious discrimination. See Batson, 476 U.S. at 98. But

discrimination in this day and age is frequently unconscious and less often

consciously purposeful. That does not make it any less pernicious.

Problematically, people are rarely aware of the actual reasons for their

discrimination and will genuinely believe the race-neutral reason they create to

mask it. See Page, supra, at 175-77. Since Batson's third step hinges on

credibility, this makes it very difficult to sustain a Batson challenge even in

situations where race has in fact affected decision-making. /d.

More troubling for Batson is research showing that people will act on

unconscious bias far more often if reasons exist giving plausible deniability (e.g.,

an opportunity to present a race-neutral reason). In one fascinating study,

researchers tested peoples' unconscious desire to avoid contact with

handicapped persons. "In a carefully designed experiment, researchers found

that when offered a choice of two rooms in which movies were playing, people

avoided the room with a handicapped person, but only when doing so could

masquerade as a movie preference." TASK FoRCE REPORT, supra, at 19 (citing

Melvin L. Snyder et al., Avoidance of the Handicapped: An Attributional Ambiguity

Analysis, 37 J. PERSONALITY & Soc. PSYCHOL. 2297, 2297, 2304 (1979)). But

16
No. 86257-5

when offered outright the choice of sitting next to a handicapped or

nonhandicapped person, people chose to sit by the handicapped person to

conceal their prejudice. /d.

None of this means we should turn a blind eye to the overwhelming

evidence that peremptory challenges often facilitate racially discriminatory jury

selection. Nor does it suggest we should throw up our hands in despair at what

appears to be an intractable problem. Instead, we should recognize the

challenge presented by unconscious stereotyping in jury selection and rise to

meet it.

Ill. The constitutional value of a diverse jury

We should also recognize that there is constitutional value in having

diverse juries, quite apart from the values enshrined in the Fourteenth

Amendment. Article I, section 21 of our state constitution declares, "The right of

trial by jury shall remain inviolate."

We have juries for many reasons, not the least of which is that it is a

ground level exercise of democratic values. The government does not get to

decide who goes to the lockup or even the gallows. Ordinary citizens exercise

that right as a matter of democracy. In England, the jury developed into juries of

one's peers, coming from one's community. This is the grand heritage of the jury

system.

But equally fundamental to our democracy is that all citizens have the

opportunity to participate in the organs of government, including the jury. If we

allow the systematic removal of minority jurors, we create a badge of inferiority,

17
No. 86257-5

cheapening the value of the jury verdict. And it is also fundamental that the

defendant who looks at the jurors sitting in the box have good reason to believe

that the jurors will judge as impartially and fairly as possible. Our democratic

system cannot tolerate any less.

From a practical standpoint, studies suggest that compared to diverse

juries, all-white juries tend to spend less time deliberating, make more errors, and

consider fewer perspectives. EQUAL JUSTICE INITIATIVE REPORT, supra, at 6, 40-41.

In contrast, diverse juries were significantly more able to assess reliability and

credibility, avoid presumptions of guilt, and fairly judge a criminally accused. /d. at

41. "By every deliberation measure, ... heterogeneous groups outperformed

homogeneous groups." /d. These studies confirm what seems obvious from

reflection: more diverse juries result in fairer trials.

Thus, our Batson analysis should reflect not only the Fourteenth

Amendment's equal protection guarantee, but also the jury trial protections

contained in article I, section 21 of our state's constitution.

IV. What to do about Batson?

Race should not matter in the selection of a jury, but under current law it

often does. We conclude from this that we should strengthen our Batson

protections, relying both on the Fourteenth Amendment and our state jury trial

right.

We have a lot of flexibility to do so. The Batson framework anticipates that

state procedures will vary, explicitly granting states flexibility to fulfill the promise

of equal protection. Batson, 476 U.S. at 99-100 n.24 ("[W]e make no attempt to

18
No. 86257-5

instruct [state and federal trial] courts how best to implement our holding today.");

Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129

(2005) (recognizing that states have "flexibility in formulating appropriate

procedures to comply with Batson"); Hicks, 163 Wn.2d at 489-90 (same). Indeed,

the Batson procedure itself was born in state courts out of a growing sense that

Swain was failing. Batson, 476 U.S. at 82 n.1, 99.

Likewise, we have authority under federal law to pioneer new procedures

within existing Fourteenth Amendment frameworks. Smith v. Robbins, 528 U.S.

259, 273, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (states have "wide discretion,

subject to the minimum requirements of the Fourteenth Amendment, to

experiment with solutions to difficult policy problems"); Dickerson v. United States,

530 U.S. 428, 438-38, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

We can also extend greater-than-federal Batson protections to defendants

under the greater protection afforded under our state jury trial right, a fact we

recognized in Hicks. 163 Wn.2d at 492.

Justices Marshall and Breyer argue that the taint of racial discrimination on

peremptory challenges is so strong that the only way to remove it is to eliminate

the peremptory system altogether. Batson, 476 U.S. at 102-03 (Marshall, J.,

concurring); Mil/er-E/, 545 U.S. at 266-67, 273 (Breyer, J., concurring). That may

be so.

Justice Gonzalez's concurring heartfelt opinion argues for immediate

abolition of the peremptory challenge. We do not disagree with his call for the

need for a departure from the Batson framework, but we believe that such a major

19
No. 86257-5

change in trial procedure should be tested in the furnace of advocacy at the trial

and appellate levels, with the opportunity for input from a broad range of interests,

before we abandon a procedure that was adopted by Washington's first territorial

legislature over 150 years ago. "'[W]e are not in the business of inventing

unbriefed arguments for parties sua sponte .... "' In re Pers. Restraint of Coats,

173 Wn.2d 123, 138, 267 P.3d 324 (2011) (quoting State v. Studd, 137 Wn.2d

533, 547, 973 P.2d 1049 (1999)). Alternatively, as both we and Justice

Gonzalez's concurring opinion note, it might be more appropriate to consider

whether to abolish peremptory challenges through the rule-making process

instead of in the context of a specific case. See infra p. 23.

We have occasionally exercised our power to reach issues not raised by

the parties, but this case does not present any of the circumstances justifying

exercise of this discretionary power. The parties have not "ignore[d] a

constitutional mandate, a statutory commandment, or an established precedent."

City of Seattle v. McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994).

With respect to our concurring colleagues, we do not believe that our call

for new alternatives to the Batson analysis constitutes '"turn[ing] a blind eye,"'

'"throw[ing] up our hands in despair,"' or '"shrink[ing] from this challenge,"'

concurrence (Gonzalez, J.) at 2, nor are we reluctant to change the Batson

standard simply because the solution presents a difficult question, see

concurrence (Stephens, J.) at 1-2. Rather, we feel that now is the time to begin

the task of formulating a new, functional method to prevent racial bias in jury

20
No. 86257-5

selection. To do so, we seek to enlist the best ideas from trial judges, trial lawyers,

academics, and others to find the best alternative to the Batson analysis.

But it may instead be possible to address Batson's shortcomings in a more

targeted fashion. The main problem is that Batson's third step requires a finding

of "purposeful discrimination," which trial courts may often interpret to require

conscious discrimination. This is problematic because discrimination is often

unconscious. A requirement of conscious discrimination is especially

disconcerting because it seemingly requires judges to accuse attorneys of deceit

and racism in order to sustain a Batson challenge. See Robin Charlow, Tolerating

Deception and Discrimination After Batson, 50 STAN. L. REV. 9, 11 (1997) (noting

that one judge "had the uncomfortable feeling that she had just rendered an

official ruling that the attorney was lying to the court"). Imagine how difficult it

must be for a judge to look a member of the bar in the eye and level an

accusation of deceit or racism. 7 And if the judge chooses not to do so despite

misgivings about possible race bias, the problem is compounded by the fact that

we defer heavily to the judge's findings on appeal. Hicks, 163 Wn.2d at 486. A

strict "purposeful discrimination" requirement thus blunts Batson's effectiveness

and blinds its analysis to unconscious racism. 8 As a first step, we should

7
Likewise, "[m]any defense lawyers fail to adequately challenge racially discriminatory
jury selection because they are uncomfortable, unwilling, unprepared, or not trained to
assert claims of racial bias." EQUAL JUSTICE INITIATIVE REPORT, supra, at 6.
8
It could be argued (although none of the parties makes this argument) that "purposeful
discrimination" already encompasses unconscious bias. This argument flows from the
idea that the "purposeful discrimination" requirement was never intended to be a proxy
for conscious intent or anything resembling a conscious mens rea, but rather a signpost
for distinguishing between discriminatory purpose and disproportionate impact. Before
Batson was decided, it was well established that disproportionate impact alone does not

21
No. 86257-5

abandon and replace Batson's "purposeful discrimination" requirement with a

requirement that necessarily accounts for and alerts trial courts to the problem of

unconscious bias, without ambiguity or confusion. For example, it might make

sense to require a Batson challenge to be sustained if there is a reasonable

probability that race was a factor in the exercise of the peremptory or where the

judge finds it is more likely than not that, but for the defendant's race, the

peremptory would not have been exercised. A standard like either of these would

take the focus off of the credibility and integrity of the attorneys and ease the

accusatory strain of sustaining a Batson challenge. This in turn would simplify the

task of reducing racial bias in our criminal justice system, both conscious and

unconscious.

However, a new, more robust framework should do more than simply

acknowledge that unconscious bias is a permissible consideration in the Batson

violate the equal protection clause. See Washington v. Davis, 426 U.S. 229, 240, 96 S.
Ct. 2040, 48 L. Ed. 2d 597 (1976). It could be argued that Batson's "purposeful
discrimination" requirement therefore meant not that the state's attorney need be found
intentionally racist, only that racial bias (conscious or unconscious, as the argument
would go) be the source of any disparate impact. This argument finds support in
scholarship and in the United States Supreme Court's equal protection jurisprudence
regarding jury selection. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct.
1221, 31 L. Ed. 2d 536 (1972) (finding that disproportionate exclusion of blacks in
subjective jury selection process was clearly discriminatory even with "no evidence that
the commissioners consciously selected by race"); Batson, 476 U.S. at 94 (citing
Alexander); see also Hernandez v. Texas, 347 U.S. 475, 482, 74 S. Ct. 667, 98 L. Ed.
866 (1954) ("The result bespeaks discrimination, whether or not it was a conscious
decision on the part of any individual .... "); Ralph Richard Banks & Richard Thompson
Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58
EMORY L.J. 1053, 1090-93 (2009) (concluding that "discriminatory purpose" includes
unconscious bias under current equal protection jurisprudence). This argument makes
sense, but we do not consider it here. The issue was not raised or decided below, the
trial court easily could have understood "purposeful discrimination" to include
unconscious bias, and the facts of this case simply do not compel a finding of purposeful
discrimination even if considering unconscious discrimination.

22
No. 86257-5

analysis. It should seek to eliminate this bias altogether or at least move us

closer to that goal. A new framework should give trial courts the necessary

latitude to weed out unconscious bias where it exists, without fear of reversal and

without the need to level harsh accusations against attorneys or parties. On the

other hand, it may be that Justices Marshall and Breyer are right and the problem

is so dire that the only solution is to eliminate peremptory challenges altogether.

See Batson, 476 U.S. at 102-03 (Marshall, J., concurring); Mil/er-E/, 545 U.S. at

266-67, 273 (Breyer, J., concurring).

A rule change of this magnitude might also be best made through the rule-

making process. This court possesses certain rule-making authority inherent in

its power to prescribe rules of procedure and practice, which is supplemented by

the Legislature. State v. Templeton, 148 Wn.2d 193, 212-13, 59 P.3d 632 (2002).

We could certainly adopt a rule that would strengthen our procedures for Batson

challenges, and this may be the most effective way to reduce discrimination and

combat minority underrepresentation in our jury system. 9

V. Application to this case

As urgent as the need for a new framework may be, we cannot create one

in this case. Neither party has asked for a new standard or framework, nor have

they briefed or argued what that framework might be or how it would apply in this

case. The issue also was not raised or decided at the Court of Appeals or the trial

court. This means the record has not been developed in a way that will facilitate

9
Ironically, Justice Stephens's concurring opiniOn takes this opiniOn to task for
discussing possible solutions and then launches into a lengthy criticism of possible
solutions. Concurrence (Stephens, J.) at 2-5.

23
No. 86257-5

our review, nor have we obtained the benefit of input from amici, including

members of the bar and other stakeholders. It must wait for another case.

VI. The trial court did not clearly err by finding there was no purposeful
discrimination in this case

Instead, we apply Batson to this case and conclude that the trial court's

finding that there was no purposeful discrimination was not clear error. A trial

court's decision that a challenge is race-neutral is a factual determination based in

part on the answers provided by the juror, as well as an assessment of the

demeanor and credibility of the juror and the attorney. Batson, 476 U.S. at 98

n.21. The defendant carries the burden of proving purposeful discrimination. /d.

at 93. The trial judge's findings are "accorded great deference on appeal" and will

be upheld unless proved clearly erroneous. Hernandez v. New York, 500 U.S.

352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). Deference to trial court

findings is critically important in Batson cases because the trial court is much

better positioned than an appellate court to examine the circumstances

surrounding the challenge. Further, deference is important because trial judges

must have some assurance that the rest of the trial will not be an exercise in

futility if it turns out an appellate court would have ruled on a Batson challenge

differently.

Here, we find no clear error in the trial court's determination that the

prosecution had a valid race-neutral reason to peremptorily strike Ms. Tolson. Ms.

Tolson said she might have trouble sitting on the jury of a murder trial because

someone she knew had recently been murdered:

24
No. 86257-5

I mean, I have never been in this situation where I have lost
someone. You just went to the funeral. He is young. Only 24. And to
be called to jury duty to perhaps be on a jury of a murder suspect. I
don't know how I'm going to react. You know, I don't know. I'm-I'm
not an emotional person, but I'm thinking as we go through it, and I
hear the testimony, and I see the pictures, I don't know. I mean, I'm
just being honest. I don't know how I'm going to feel.

RP (Mar. 10, 2009) at 43. In light of Ms. Tolson's statements throughout voir dire,

we defer to the trial court's factual finding that the prosecutor was justified in

believing there was a realistic possibility that she might have been "lost" as a juror

before the end of the case. The record does not compel a contrary conclusion.

The trial court observed the juror and agreed that she was having difficulties.

Losing jurors during a lengthy trial is always a possibility, and justice is not served

when a mistrial is declared or a juror is unable to view and process the evidence.

Here, it was entirely reasonable for the court to conclude that the prosecutor's

concerns were legitimate and race-neutral, and there was no clear error. We

affirm the trial court's finding that there was no purposeful discrimination.

We do, however, acknowledge that Ms. Tolson was questioned far more

than any other juror, perhaps in part because she was black. This conclusion is

supported by a statistical analysis of the prosecution's voir dire that appears in

Appendix A, attached to this opinion. 10 These statistics are rather striking, and in

general, disparate questioning of minority jurors can provide evidence of

10
The charts in Appendix A track two relevant measures of prosecutor questioning: (1)
the number of questions asked of each juror by the prosecution and (2) the total number
of words spoken (by both prosecutor and venireperson) in direct interaction with each
prospective juror. Totals do not include statements or questions made by the prosecutor
to the venire at large that were not directed to any particular juror. Totals omit voir dire
by defense counsel and individual questioning conducted outside the presence of the full
venire.

25
No. 86257-5

discriminatory purpose because it can suggest that an attorney is "fishing" for a

race-neutral reason to exercise a strike. See Mil/er-E/, 545 U.S. at 241; Reed v.

Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). However, disparate questioning

does not itself prove purposeful discrimination. In some cases, there may be

good reasons to question minority jurors more than nonminority jurors. Here, for

example, the prosecutor began by eliciting Ms. Tolson's views on race in the

criminal justice system and later spoke with her regarding the recent death of her

friend. These were legitimate topics to explore. 11 We defer to the trial court that

the disparate questioning in this case, while it may have been motivated in part by

race, did not necessarily amount to purposeful discrimination.

We also acknowledge that the prosecution attempted to strike the only

Mexican-American juror in the venire, juror 10. RP (Mar. 10, 2009) at 119-20.

And while it is true that a court's finding of discrimination against one juror is

evidence of discrimination against others, it does not follow that one Batson

violation necessarily implies another. Snyder, 552 U.S. at 478.

Under Batson, we defer to the trial court's ruling.

11
The chief justice's concurring opinion criticizes our reference to statistics of the number
of questions asked of Ms. Tolson compared with the other jurors, asking why additional
questions were asked and "many other factors" and disclaiming any reliance on
statistics. Concurrence (Madsen, C.J.) at 5-6. This criticism is particularly inapt in light
of this opinion's extensive quotations from the voir dire of Ms. Tolson, id. at 3-6, 25, and
one statement that disparate questioning does not itself prove purposeful discrimination.

26
No. 86257-5

CONCLUSION

Racial inequalities permeate our criminal justice system and present

important moral issues we all must grapple with. Twenty-six years after Batson, it

is increasingly evident that discriminatory use of peremptory challenges will be

difficult to eradicate. We should not shrink from this challenge, but this is not the

case to address it. It must wait for another day to determine how to adapt Batson

to the realities of continuing race discrimination and fulfill the promise of equal

protection.

We affirm the Court of Appeals.

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No. 86257-5

WE CONCUR.

~--------~------~

28
 No. 86257-5
APPENDIX A
Questions Total Words of
Juror Number Asked Interaction
1 6 155
4 4 102
5 1 16 Total Words of Interaction
7 5 151
10 5 159 ?
11 12 535 80
79
12 5 127 72
13 7 190 70
16 2 88 69
20 2 55 67
22 6 98 66
23 65
2 88
62
24 5 147 60
26 1 26 55
27 11 521 52
29 5 166 so
32 6 301 49
46
33 4 137 44
34 17 1165 43
36 14 389 42
39 1 89 39
42 3 103 36
43 34 ~
3 128
33
44 7 258 32
46 4 228 29
49 9 456 27
50 1 44 26
52 9 362 24
23
55 4 125 22
60 2 108 20
62 5 118 16
65 1 20 13
66 6 407
67 4 168
10
69 4 149 7
70 1 6 5
72 2 40 4
79 2 75 1
80 3 36 0 500 1000 1500
? ~- ''""'"~' ..•.
2
·-·~-~ '"'"••''~"- Yo<'.-
140
Grand Total 193 7676

1
No. 86257-5

Juror 34 Compared to Average
Questions Asked (Total Words)

Average
?
80 Juror 34
79 0 500 1000 1500
72
70

69 · - -
67 ~--
66 Juror 34 Compared to Average
65 (Questions Asl