Washington first in nation to reduce bias in jury selection

By Eric Tegethoff
Washington News Service

OLYMPIA — Washington is set to become the first state to tackle racial bias in the jury-selection process.

The new rule, which goes into effect at the end of April, bars attorneys from excluding someone not only for intentional racial bias but also “implicit, institutional and unconscious” bias. The decision gives teeth to a 1986 U.S. Supreme Court ruling, Batson vs. Kentucky, which allows lawyers to object if they suspect a person is being ruled out because of his or her race.

Sal Mungia, an attorney who helped draft the new rule alongside ACLU Washington, said the Batson decision has been hard to enforce because lawyers have to prove that the challenge to a potential juror was a racist act.

“So it takes the pressure off of everyone and makes it a very low bar to ensure that, one, we have a more diverse jury panel, and two, that people who in fact show up to do their civic duty don’t get excluded from doing that because of the color of their skin,” he said.

The state Supreme Court made the decision earlier this month. According to the rule, an objection to a juror’s exclusion can be used if a so-called “objective observer” or reasonable person could view race or ethnicity as a factor. Mungia said trial judges are figuring how to implement this new rule, since it could make the selection process longer. Opponents are concerned the bar could be set too low for objecting to the exclusion of a juror.

ACLU Washington has said that since the 1986 Batson ruling, people still have been excluded from juries for reasons that can be seen as racially biased, including believing that police officers engage in racial profiling, living in a high-crime neighborhood and not being a native English speaker. It also challenged demeanor-based justifications because of its historical use to strike potential jurors of color. Mungia said it hurts community members when people show up and are excluded from the process without reason.

“That damages the justice system,” he said, “and for a person who is one of the parties, especially if you happen to be that same skin color as the two people who have just been excluded from serving on the jury, you can imagine what that person thinks about our justice system.”

Mungia said it’s important to keep in mind that the selection process isn’t about selecting jurors; it’s actually about excluding certain people from being on the jury. Mungia said he hopes this rule can serve as a model for other states.

The Washington state Supreme Court rule is online at tinyurl.com/ycry9wrn, and a summary of Batson vs. Kentucky is at uscourts.gov.

 

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