Washington Supreme Court Adopts Rule to Curb Racial Discrimination in Jury Selection


To better expose illegal racial discrimination in jury selection, the Washington Supreme Court recently adopted a bright-line rule that when a prosecutor strikes the sole member of a racial group from a jury, the trial court must require an explanation from the prosecutor and analyze whether the strike was motivated by racial bias.

In Batson v. Kentucky, the United States Supreme Court set out a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. Because prosecutors can easily mask their efforts to exclude racial minorities from jury service, racial discrimination in jury selection is an ongoing problem.

Writing for a unanimous court in City of Seattle v. Erickson, Justice Susan Owens observed that the court has repeatedly “noted that our Batson protections are not robust enough to effectively combat racial discrimination during jury selection.” In 2013, the Washington Supreme Court cited EJI’s report on racial discrimination in jury selection in an opinion recognizing that “racial discrimination remains rampant in jury selection” and calling for new legal standards and procedures to recognize and eradicate institutional racism.  “We have repeatedly recognized that Batson is a particularly difficult hurdle to overcome,” the Erickson court wrote. That Batson created a “crippling burden, making it very difficult for defendants to prove discrimination even where it almost certainly exists . . . underscores the need to amend our procedures and ensure that jury selection is more secure from the threat of racial prejudice.”

Accordingly, the court in Erickson changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court. “The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

Matthew Erickson, a Black man, was charged in Seattle Municipal Court with unlawful use of a weapon and resisting arrest. After the prosecutor removed the only Black juror on the jury panel, the defense objected, claiming the strike was racially motivated. The trial judge overruled that objection, finding no inference of racial discrimination in part because other nonwhite people remained on the jury. “[I]t is misguided to infer that leaving some members of cognizable racial groups on a jury while striking the only African American member proves the prosecutor’s strike was not racially motivated,” the state’s high court found. “Batson is concerned with whether a juror was struck because of his or her race, not the level of diversity remaining on the jury.” The supreme court remanded Mr. Erickson’s case for a new trial.

Four justices wrote concurring opinions urging the court to take additional steps towards eradicating racial discrimination in jury selection, including the adoption of new rules that would make it harder for prosecutors to hide racially-motivated strikes and the elimination of peremptory strikes altogether.  “It would be unfortunate if today’s decision . . . were perceived as somehow signaling that the court has ‘fixed the problem.'” Justice Debra Stephens wrote. “I hope instead that our decision sends the clear message that this court is unanimous in its commitment to eradicate racial bias from our jury system, and that we will work with all partners in the justice system to see this through.”

Jury selection should be secure from the threat of racial prejudice.