The Seattle Post-Intelligencer reports
that while the court upheld the murder conviction of a black defendant who challenged the verdict because the only potential African American juror for his trial was dismissed due to alleged racial bias, the justices expressed serious concern that race is too often a factor when prosecutors use peremptory challenges to dismiss possible jurors.
"A growing body of evidence shows that racial discrimination remains rampant in jury selection," Justice Charlie Wiggins wrote in the lead opinion. "In part, this is because (the current rule) recognizes only 'purposeful discrimination,' whereas racism is often unintentional, institutional or unconscious."
"Racism now lives not in the open but beneath the surface-- in our institutions and our subconscious thought process-- because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus," opined Wiggins, who is white.
At issue was the case of State v. Saintcalle
, in which Kirk Saintcalle, who was convicted
of first-degree murder in 2009 in King County Superior Court and sentenced to 48 years behind bars, argued that prosecutors dismissed the only potential black juror due to racism.
While Justice Pro Tem Tom Chambers said the dismissal of the only potential black juror was so clearly racially biased that he would order a new trial, the court upheld Saintcalle's conviction even while it asserted that new jury selection rules need to be implemented.
The current selection procedure allows prosecutors and defense attorneys to dismiss potential jurors without giving any reason why. In order to prevent prosecutors from removing potential jurors due to racial discrimination, defense lawyers must prove they are purposefully discriminating, an extremely high legal standard that is rarely met.
Lila Silverstein, an attorney who represented Saintcalle on appeal, told
KUOW that when potential black jurors are removed from cases, "they are described as either less intelligent or as inattentive, or as too old or too young, even when the objective evidence is to the contrary."
Justice Wiggins observed that the potential black juror is the Saintcalle case was questioned more thoroughly than anyone else in the jury pool. Prosecutors also tried to toss the only potential Mexican American from the jury but a lower court judge found that the prosecution's rationale for dismissing the potential juror was nothing more than an attempt to exclude a person of color.
Justice Steven Gonzalez, the only non-white member of the state Supreme Court, said that potential jurors are often dismissed due to racial stereotypes.
"The majority of attorneys rely on instinct, lore and anecdotal experience... to guide the use of peremptory challenges," Gonzalez, a former federal prosecutor and King County Superior Court judge, wrote in his concurring opinion. "These attorneys tend to rely heavily on speculative and unfounded stereotypes and generalizations that masquerade as insight or wisdom; indeed, the 'old lawyer's lore' passed down from one generation to the next is rampant with such dubious and sweeping declarations."
Peremptory challenges, which date back to 13th century England, have been part of Washington's legal tradition for more than 150 years. Former US Supreme Court Justice Thurgood Marhsall, the first black member of the high court, as well as current US Supreme Court Justice Stephen Breyer, have called for an end to peremptory challenges.
"Many jurists and scholars have called for the elimination of peremptory challenges but no jurisdiction in the United States has been willing to be the first to take that necessary step," Justice Gonzalez wrote in his concurring opinion. "A long standing but antiquated legal tradition should never blind us to the paramount need to ensure that our trial procedures are just," Gonzalez added. "Nor should any progress we have made blind us to the need for further progress."