       IN CLIIIICI O,,ICE
. . . . COUlff, 8TA11i OF WA8HINGroN
                                                                    This opinion was filed for record
! ~TE NOV O I 20181
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         CHIEF JUSTICE
                               <4·                              at g't[)Q~          on:no~, laolg
                                                                    6tw~.SUSAN L. CARLSON
                                                                       SUPREME COURT CLERK


         IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                                            NO. 94853-4
  STATE OF WASHINGTON,

                               Respondent,
                                                            EN BANC
            V.


  TYREE WILLIAM JEFFERSON,                                  Filed      NO\/ 0 1 2018

                               Petitioner.


          GORDON MCCLOUD, J.-Tyree Jefferson was convicted of attempted

murder in the first degree, assault in the first degree, and unlawful possession of a

 firearm in the first degree following a jury trial. He challenges the State's use of a

peremptory strike against the only African-American juror (Juror 10) on the jury

venire, arguing that the strike was exercised in a racially discriminatory manner in

violation of Batson v. Kentucky. 1 Additionally, Jefferson challenges the current

Batson test; he argues that it fails to adequately address racial discrimination in jury

 selection.



           1
               476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
State v. Jefferson (Tyree William), No. 94853-4


      We hold that the trial court sustainably ruled that there was no purposeful

discrimination in the peremptory strike of Juror 10 under Batson.

      However, "our Batson protections are not robust enough to effectively combat

racial discrimination during jury selection." 2 In fact, the Batson framework "make[s]

it very difficult for defendants to prove discrimination even where it almost certainly

exists." 3 We need to do better to achieve the objectives of protecting litigants' rights

to equal protection of the laws 4 and jurors' rights to participate in jury service free

from racial discrimination. 5 For those reasons, we now modify our three-step Batson

test by replacing Batson' s current inquiry at step three with a new inquiry. If a Batson

challenge to a peremptory strike of a juror proceeds to that third step of Batson's

three-part inquiry, then the trial court must ask whether an objective observer could

view race or ethnicity as a factor in the use of the peremptory strike. If so, then the

strike must be denied and the challenge to that strike must be accepted.

      We apply this new standard today and find that race could have been a factor

in Juror 10' s dismissal. We therefore reverse and remand.




      2
          City of Seattle v. Erickson, 188 Wn.2d 721,723,398 P.3d 1124 (2017).

      3
          State v. Saintcalle, 178 Wn.2d 34, 46, 309 P.3d 326 (2013) (plurality opinion).

      4
          Batson, 476 U.S. at 89.
      5
          Powers v. Ohio, 499 U.S. 400, 406-07, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

                                              2
State v. Jefferson (Tyree William), No. 94853-4


                                         FACTS

      On February 14, 2013, Jefferson was involved in a fight over a pair of designer

sunglasses. The fight ended with the shooting of Rosendo Robinson. Jefferson was

subsequently charged with attempted murder in the first degree, assault in the first

degree, and unlawful possession of a firearm in the first degree. Clerk's Papers (CP)

at 40-42. His defense was that someone else pulled the trigger. 11 Verbatim Report

of Proceedings (VRP) (May 19, 2015) at 1282-84.

      Voir dire began on May 4, 2015. 2 VRP (May 4, 2015) at 106. On the second

day of voir dire, the State exercised a peremptory strike against Juror 10, the last

African-American in the jury pool. 3 VRP (May 5, 2015) at 238. Jefferson

challenged this strike with a Batson motion. Id. After going through the three-step

Batson analysis, the trial court denied the Batson motion and ruled that the State had

provided a nondiscriminatory explanation for its peremptory challenge of Juror 10.

Id. at 239-47. The trial proceeded; it lasted approximately 10 days.

      The jury convicted Jefferson of attempted murder in the first degree, assault

in the first degree, and unlawful possession of a firearm in the first degree. 13 VRP

(May 20, 2015) at 11-13. The court entered judgment on the attempted murder and

unlawful possession of a firearm convictions only. Jefferson was sentenced to 337.5

months of incarceration. CP at 409.




                                            3
State v. Jefferson (Tyree William), No. 94853-4


      Jefferson appealed, and the Court of Appeals affirmed the convictions. State

v. Jefferson, 199 Wn. App. 772, 784, 401 P.3d 805 (2017), review granted, 189

Wn.2d 1038, 409 P.3d 1052 (2018).

      Jefferson then petitioned for review on three issues: ( 1) whether the trial court

erred in denying the Batson motion to deny the State's peremptory strike of Juror 10

under the current Batson test, (2) whether this court should revisit the Batson test,

and (3) whether the trial court erred in denying Jefferson's motion for mistrial. We

granted review.

                                       ANALYSIS

       1.    The trial court's ruling that the State did not violate Batson by
             exercising purposeful racial discrimination in jury selection was not
             clearly erroneous

      During Jefferson's trial, the State used a peremptory strike against the only

remaining African-American member of the venire. 3 VRP (May 5, 2015) at 238.

The State provided three reasons for the strike: first, that Juror 10 indicated that voir

dire was a "waste of time"; second, that Juror 10 had specific knowledge of the

movie 12 Angry Men; and third, that Juror 10 had brought outside evidence into jury

deliberations as a juror in a previous trial. Jefferson argues that the State's reasons

for striking Juror 10 were pretextual and that the trial court should have granted

Jefferson's Batson challenge. Id. at 242-45.




                                            4
State v. Jefferson (Tyree William), No. 94853-4


      Washington cases apply the three-part Batson test to determine whether a

peremptory strike was impermissibly racially motivated. This test replaced the

'"crippling burden of proof" previously required under Swain v. Alabama6 when

attempting to prove a racially motivated strike. State v. Saintcalle, 178 Wn.2d 34,

43-44, 309 P.3d 326 (2013) (plurality opinion) (quoting Batson, 476 U.S. at 92-93).

Under Batson, the defendant must first establish a prima facie case that "gives rise

to an inference of discriminatory purpose." Batson, 4 7 6 U.S. at 94 ( citing

Washington v. Davis, 426 U.S. 229, 239-42, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)).

As of 2017, in Washington, this first step of the Batson test also includes a bright-

line rule that the trial court must recognize a prima facie case of discriminatory

purpose when a party strikes the last member of a racially cognizable group.

Erickson, 188 Wn.2d at 734. Second, "the burden shifts to the State to come forward

with a [race-]neutral explanation for [the challenge] .... " Batson, 476 U.S. at 97. If

the State meets its burden at step two, then third, "the trial court then [has] the duty

to determine if the defendant has established purposeful discrimination." Id. at 98.

       We review Batson challenges for clear error and defer to the trial court to the

exte1;-t that its rulings are factual. Saintcalle, 178 Wn.2d at 41 ( citing State v. Hicks,




       6380 U.S. 202, 223-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), overruled by Batson,
476 U.S. 79.



                                             5
State v. Jefferson (Tyree William), No. 94853-4


163 Wn.2d 477, 486, 181 P.3d 831 (2008) (quoting State v. Luvene, 127 Wn.2d 690,

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)))).

             A. Jefferson established a prima facie showing of discriminatory
                purpose

      In the first step of a Batson challenge, the challenger-in this case,

Jefferson-must establish a prima facie case giving rise to the inference of

discriminatory purpose. Batson, 476 U.S. at 94.

      Juror 10 was the only African-American juror remaining on the venire. 3 VRP

(May 5, 2015) at 238. Although Jefferson's trial occurred prior to Erickson, the trial

court employed an equivalent bright-line rule. Id. at 239-41. Under both the trial

court's pre-Erickson rule and the Erickson bright-line rule, "[t]he trial court must

[when the sole remaining member of a racially cognizable group has been struck

from the jury] then require an explanation from the striking party and analyze, based

on the explanation and the totality of the circumstances, whether the strike was

racially motivated." Erickson, 188 Wn.2d at 734 (citing Batson, 476 U.S. at 94;

Saintcalle, 178 Wn.2d at 42). Thus, even though this trial occurred before Erickson

was decided, the trial court determined that the defense made a prima facie showing

of purposeful discrimination. 3 VRP (May 5, 2015) at 241.




                                            6
State v. Jefferson (Tyree William), No. 94853-4


             B. The State provided a race-neutral justification for its use of a
                peremptory strike

      After concluding that Jefferson established a prima facie case, the trial court

gave the State an opportunity to explain its use of the peremptory strike. The State

argued, "[I]n this instance, each of the jurors that I struck so far, in this case, I went

through the same identical analysis. Each of them I have asked to stand, and I asked

them questions." Id. The State then listed several reasons for the peremptory strike.

First, when asked about the utility of voir dire, Juror 10 stated, "No, I don't think

you should waste time .... Well, I mean that's up to you, but for me, personally, it's

a waste of time .... " 2 VRP (May 4, 2015) at 176. Second, the State expressed

concern with Juror 1O's response to defense counsel's question about 12 Angry Men,

stating, "[Juror 1OJ seemed to be very enthusiastic about the movie." 3 VRP (May

5, 2015) at 244. Third, according to the State, Juror lO's responses to the defense

counsel's voir dire indicated that in a prior jury service stint, Juror 10 had "[brought]

in things that were irrelevant to the case." Id. at 244-45. Thus, the State provided a

race-neutral explanation for its peremptory strike.

              C. The trial court analyzed the State's reasons for the peremptory strike
                 and found no purposeful discrimination

       The trial court then took the third step of a Batson analysis and analyzed the

State's reasons for the peremptory strike. It concluded that the State's reasons

sufficed and denied the Batson motion:


                                            7
State v. Jefferson (Tyree William), No. 94853-4


      There are legitimate non-discriminatory reasons, that are not race
      based, why Mr. Curtis wants to strike No. 10, notwithstanding the fact
      that they are both African-American men; the fact that he didn't bond
      with him; he didn't feel comfortable with him in terms of his earlier
      responses; the issue about 12 Angry Men and his familiarity with the
      movie .... And I don't, in essence, I don't believe that the state has-
      that the defense has shown that that, in some-in any way is pretext or
      a cover for race-based strike, so I'm going to deny the motion.

3 VRP (May 5, 2015) at 246-47.

             D. Under the current Batson test, which requires proof of purposeful
                discrimination to invalidate a peremptory strike and deference to
                the trial court's findings on this factual matter, Jefferson fails to
                prove clear error

      While each justification provided for the strike seems reasonable when

viewed separately, as a whole Juror 1O's responses were not that different from those

provided by the jurors who eventually sat on the jury panel. Additionally, the type

ofvoir dire faced by Juror 10 was substantially different from that of the other jurors.

However, under Batson, the only question for this court is whether the trial court's

factual finding that these differences did not prove purposeful discrimination was

clearly erroneous. As discussed below, we conclude that the trial court's ruling on

this issue was not clearly erroneous under the current Batson test.

                 1.    Juror 10' s responses were not that different from other jurors'
                       responses

      First, when the State asked Juror 10 about the importance of the voir dire, the

prosecutor used different and more questions with Juror 10 as compared with the



                                           8
State v. Jefferson (Tyree William), No. 94853-4


other potential jurors. The State asked three jurors about whether conducting voir

dire is a "waste of time." For Jurors 23 and 25, the State initially framed this question

as, "if you were my client," whereas for Juror 10, the prosecutor began with the more

abstract ' 1 [is it] enough that everybody stood up and took the oath?" 2 VRP (May 4,

2015) at 175-77. Then, when the State did ask Juror 10 for his perspective "if I was

representing you," Juror 10 conveyed a response similar to the responses given by

other jurors, stating:

       Just like you said, if everyone took the oath and you're expecting them
       to be partial to the evidence and everything that's presented, so-and
       the questions that have been asked about, you know, being influenced
       by anything from the outside, still need to separate those two from the
       facts and then-and whatever they hear on the outside.

Id. at 176. Here, Juror 10 seems to agree with the State, acknowledging that the State

needs to assess the impact of outside influence on jurors. Juror 1O's answer is similar

to the answers given by Jurors 23 and 25; they both said that the parties need voir

dire to assess biases and ensure fairness. Id. at 175-77. Jurors 23 and 25 were not

subject to peremptory strikes; they sat on the jury panel.

       Second, Juror 10' s responses to defense counsel's 12 Angry Men questions

were fairly similar to the responses of some of the other jurors. Juror 10 responded:

      I know it's a long time ago. I think Jack-somebody played in the movie
      "12 Angry Men." The way it started out, a lot of jurors were ready to
      give a verdict right off the bat because a lot of them had things to do,
      places to go, other things going on in their life. And like the young man,
      No. 9, said, 11 of them wanted to go ahead and give a verdict, but that


                                            9
State v. Jefferson (Tyree William), No. 94853-4


       12th man held out because he knew that the evidence, what he was
       listening to didn't add up. And like he said, it took days a jury room,
       and it took some time to get those jurors to understand the facts that
       were given in court. And I say one by one, the jurors began to change
       [their] mind and see the evidence a little bit different than what they
       had started out to.

              In the end, if I can remember right, the person that was on trial
       didn't do it. It was someone else.

Id. at 196.

       This response from Juror 10 was somewhat similar to that of Juror 9, whom

the prosecutor also peremptorily struck due to his response to the 12 Angry Men

discussion. 3 VRP (May 5, 2015) at 243. Juror 9 stated,

       I watched it. I think-the main point I took out of it was that 11 people
       were against-or were for the guilty verdict. Only one person was for
       not guilty. And slowly, throughout the movie, he kind of convinces
       them, gives that reasonable doubt in their head, and so it just kind of
       showed the power of the system at work. It's not because-people had
       all these assumptions, and it slowly starts to reveal biases in their heads
       that they didn't realize. So at the end, they all kind of change their mind
       and realize how even themselves, they couldn't trust their own opinion.

2 VRP (May 4, 2015) at 195.

       But Juror 9 responded to the question before Juror 10. In fact, Juror 9's

description of the film seems to have sparked Juror l0's memory, because Juror 10

credits Juror 9's description in his own summary. Additionally, Juror 9's description

emphasizes the one juror's ability to "convince" the rest of the jurors, whereas Juror

1O's description seems to emphasize process and the importance of not "giv[ing] a



                                           10
State v. Jefferson (Tyree William), No . 94853-4


verdict right off the bat."

          Juror l0's summary actually appears more similar to that of Juror 23, who

stated,

       Oh, boy. That's putting me to the test. As far as I can remember, it's a
       jury comes together, and you have very differing opinions, and they
       can't come to a conclusion, if I remember correctly. It's very difficult
       to come to a conclusion that they can all agree on the same verdict.

Id. at 194. In context, Juror l0's response to the 12 Angry Men question was more

detailed, perhaps because three jurors had already discussed the film. But its content

was not substantially different from Juror 23 's content. Juror 23 was not subject to

a peremptory strike; as discussed above, Juror 23 sat on the jury.

          Finally, the prosecutor's reliance on Juror l0's propensity to bring outside

evidence into the jury room lacks support in the record. The defense asked Jurors 2

and 10 about their prior jury service. 3 VRP (May 5, 2015) at 228-29. Juror 2, the

subject of one of defense counsel's peremptory strikes, stated, "[I s]olved the case,

yes." Id. at 228. In response, the defense counsel asked Juror 2 some questions on

this topic:

          [Defense]: Without telling us the verdict, during deliberations, did you
                have a situation where anybody referred to matters that were not
                germane to what you were considering?
          Juror No. 2: Sure.
          [Defense]: And what happened when that happened?
          Juror No. 2: We all discussed it, and the person agreed that it didn't
                really pertain to what was going on.



                                             11
State v. Jefferson (Tyree William), No. 94853-4


      [Defense]: Okay. Was that person called on that, essentially, and
            saying, this doesn't have anything to do with it?
      Juror No. 2: Exactly.
      [Defense]: Juror No. 10
      Juror No. 10: Yes.
      [Defense]: And that worked?
      Juror No. 10: I agree with No. 2. I did have that same situation because
            I was one of them.
      [Defense]: You were one of them that brought up stuff?
      Juror No. 10: Yeah. I was too open-minded, I guess.
      [Defense]: Okay. All right.

Id. at 228-29. The Court of Appeals, agreeing with the State, ruled that here Juror 10

"admitted that he previously brought extraneous evidence into the deliberations

while serving as a juror in a criminal trial." Jefferson, 199 Wn. App. at 784.

      But the record fails to support this conclusion. Prior to this specific exchange,

defense counsel was discussing the various human experiences every person brings

to jury deliberations and, in that context, the fact that jurors might sometimes raise

matters "not germane" to the case. 3 VRP (May 5, 2015) at 225-28. Juror 10 did not

admit to bringing up extrinsic evidence, but instead to having discussed a matter he

now realized was "not germane." It is unfair to characterize Juror 10' s response as

an admission that he brought "extraneous evidence" 7 into the deliberations.




      7   Jefferson, 199 Wn. App. at 784; Br. ofResp't at 15.



                                             12
State v. Jefferson (Tyree William), No. 94853-4


                 11.    Juror 10 faced a different sort of voir dire from that faced by
                        other jurors

      Additionally, the prosecutor singled out Juror 10 in his questioning. Near the

end of one of the prosecutor's voir dire segments, the court informed the State that

it had two minutes left. The State then ended its inquiry by stating, "Okay. I'm not

going to start another subject, so I'm going to sit down at this time. I know Juror No.

10 is smiling. He's like, yeah." 2 VRP (May 4, 2015) at 186.

      The prosecutor was not talking to Juror 10 immediately before this exchange.

Instead, the prosecutor had been leading up to a question about personal or political

beliefs about firearms. But he never returned to this question, so it is impossible to

predict what Juror l0's response might have been. There was seemingly no reason

(at least from the record) for the State to call out Juror l0's reaction (whether or not

there even was a reaction) at this point.

                 111.   Under the current Batson test, the only question is whether
                        this shows purposeful race discrimination and the trial court
                        did not err in ruling that the answer was no

      Based on this record, it is impossible to say with certainty that the

prosecution's reasons for its peremptory strike of Juror 10 were based on purposeful

race discrimination. The prosecutor's decision to "call out" Juror 10, along with the

prosecutor's disparate response to Juror l0's answers when compared to other




                                            13
State v. Jefferson (Tyree William), No. 94853-4


jurors' answers, certainly suggests that his proffered reasons for dismissing Juror 10,

Section 1.B, were a pretext for intentional race discrimination. 8

       But under Batson, the question for us is whether that is the only possible

conclusion that can be drawn from this record---or, more specifically, whether the

trial court's conclusion that this did not amount to purposeful race discrimination

was clearly erroneous. Based on this record, the answer is no.

       2.     Our current Batson test does not sufficiently address the issue of race
              discrimination in juror selection

              A. History of Batson 's evolution, federal and state

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

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

protection guarantee. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 309-10, 25

L. Ed. 664 (1880); U.S. CONST. amend. XIV. Despite this acknowledgment, both the




       8
         As the Court of Appeals noted, the State's briefing on appeal emphasized that the
trial court's judgment should be upheld because "(1) the case was being tried before an
African American judge, (2) the prosecutor was African American ... , (3) the defendant
was African American, and (4) the defense attorney was a Caucasian woman .... Thus, in
essence, the defense attorney's objection amounted to this: the African American
prosecutor chose this particular case to attempt to engage in purposeful race discrimination
against an African American venire member." Br. of Resp't at 14. The Court of Appeals
correctly ruled that "[t]he State's argument lacks merit .... " Jefferson, 199 Wn. App. at
785. It assumes that implicit racial bias can affect only "a Caucasian['s]" perceptions and
decisions, but not an "African American['s]." Research, however, shows that assumption
is incorrect. E.g., Devon W. Carbado & L. Song Richardson, The Black Police: Policing
Our Own, 131 HARV. L. REV. 1979, 1993-2002, 2005-11, 2017-19 (2018).

                                            14
State v. Jefferson (Tyree William), No. 94853-4


United States Supreme Court and our court have struggled to find an adequate

solution.

      In 1965, the United States Supreme Court held that purposeful race

discrimination in the use of peremptory challenges violates the equal protection

clause. Swain, 380 U.S. at 223-24. But it defined this constitutional protection very

narrowly. Even though not a single African-American had ever been placed on a

jury in a criminal trial in the county, the Swain Court stated, "There is no allegation

or explanation ... as to when, why and under what circumstances in cases previous

to this one the prosecutor used his strikes .... " Id. at 226. The Court then concluded

that despite the fact that the county had a record of eliminating all potential African-

American jurors, there was still insufficient evidence of systematic discrimination to

violate the Constitution. Id. at 226-27.

      The Batson Court rejected Swain's "crippling burden of proof," 476 U.S. at

92, and replaced it with a three-part test for scrutinizing peremptory challenges to

determine whether they violated the equal protection clause. Batson, 476 U.S. at 96-

97. Its three steps are the ones discussed in Part 1. Acknowledging the various jury

selection processes throughout the country, the Court left implementation of this test

to the state and federal courts. Id. at 99 n.24.

      Looking back over the last 50 years, it is clear that Batson has failed to

eliminate race discrimination in jury selection. Miller-El v. Dretke, 545 U.S. 231,


                                            15
State v. Jefferson (Tyree William), No. 94853-4


270, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (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.") As we stated in Saintcalle,

there is a growing body of evidence showing that Batson has done very little to make

juries more diverse or to prevent prosecutors from exercising race-based challenges.

178 Wn.2d at 44-49.

       Our case law has reviewed the history and failures of Batson in depth. E.g.,

Saintcalle, 178 Wn.2d at 43. And we have "long discussed a change to the Batson

framework," Erickson, 188 Wn.2d at 734, to address these remaining problems.

       In Hicks, we stated that the trial court was "well within [its] discretion" to say

that Batson' s first step-the prima facie showing of discrimination-was satisfied

when the sole black jury member was struck. 163 Wn.2d at 491. But, in State v.

Rhone, we declined to adopt a bright-line rule that striking the sole remaining

member of a particular racial group always constitutes a per se prima facie showing

of discrimination. 9 168 Wn.2d 645,653,229 P.3d 752 (2010) (plurality opinion).

       In 2013, this court decided Saintcalle. 178 Wn.2d 34. Because neither party

included proposals for a new Batson framework in its briefing, we declined to adopt




       9 In State v. Meredith, this court clarified that Rhone did not adopt the bright-line
rule, but such a rule could be adopted in the future, once five justices agreed. 178 Wn.2d
180,184,306 P.3d942 (2013).

                                            16
State v. Jefferson (Tyree William), No. 94853-4


one. Id. at 55. We did, however, acknowledge the need for a new Batson framework

that

       do[es] more than simply acknowledge that unconscious bias is a
       permissible consideration in the Batson 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."

Id. at 54 (emphasis added).

       In 2017, we took another step. We adopted the bright-line rule-previously

discussed by Hicks, Rhone, Meredith, 10 and Saintcalle-that trial courts must

recognize a prima facie case of discriminatory purpose in violation of Batson and

the equal protection clause when the sole remaining member of a racially cognizable

group is struck from the jury with a peremptory challenge. Erickson, 188 Wn.2d at

732. But we did not go beyond that bright-line rule, which applies at step one of the

Batson framework. Specifically, we did not address the ongoing concerns of

unconscious bias expressed in Meredith or the best way to approach Batson's third

step. See Meredith, 178 Wn.2d at 192 (Chambers, J., dissenting); Saintcalle, 178

Wn.2d at 46 (lead opinion), 87 (Gonzalez, J., concurring).

       We do so now.




       10
            State v. Meredith, 178 Wn.2d 180,306 P.3d 942 (2013).

                                            17
State v. Jefferson (Tyree William), No. 94853-4


             B. This court has previously outlined Batson 's deficiencies and has the
                discretion to alter the Batsonframework

      The Batson Court anticipated that state procedures would vary to

accommodate unique jury selection processes. 476 U.S. at 99 n.24; Saintcalle, 178

Wn.2d at 51. This court agrees; we have held that we have "great discretion to amend

or replace the Batson requirements if circumstances so require." Erickson, 188

Wn.2d at 727 (citing Saintcalle, 178 Wn.2d at 51 ). In fact, as we stated in Saintcalle,

this court can modify Batson using its authority under federal law to create new

procedures within existing Fourteenth Amendment frameworks. Saintcalle, 178

Wn.2d at 51 (citing Smith v. Robbins, 528 U.S. 259,273, 120 S. Ct. 746, 145 L. Ed.

2d 756 (2000) (discussing the Court's "established practice, rooted in federalism, of

allowing the States wide discretion, subject to the minimum requirements of the

Fourteenth Amendment, to experiment with solutions to difficult problems of

policy")).

      In addition, as the Saintcalle plurality and Justice Pro Tern. Chambers' dissent

both stated, our court has inherent authority to adopt such procedures to further the

administration of justice. 178 Wn.2d at 51, 119.

      We have already identified Batson' s main deficiencies: ( 1) Batson makes "' it

very difficult for defendants to prove [purposeful] discrimination even where it




                                           18
State v. Jefferson (Tyree William), No. 94853-4


almost certainly exists'" 11 and (2) Batson fails to address peremptory strikes due to

implicit or unconscious bias, as opposed to purposeful race discrimination. 12 The

result of applying Batson in this case confirms these deficiencies. As a prophylactic

measure to ensure a robust equal protection guaranty, we must now adopt a new

framework for the third part of the Batson challenge.

               1.     United States Supreme Court decisions do not cure these two
                      problems

      The State argues that no change in the Batson approach is necessary because

the third step of Batson has already been refined by post-Batson United States

Supreme Court decisions. Br. ofResp't at 7-11 ..(quoting Foster v. Chatman, -    U.S.

_, 136 S. Ct. 1737, 1748, 195 L. Ed. 2d 1 (2016) (quoting Snyder v. Louisiana, 552

U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)), 1754 (quoting Miller-El,

545 U.S. at 241, Snyder, 552 U.S. at 478)).

      Those decisions do provide some refinements. But they provide no guidance

on how to evaluate juror responses to determine "purposeful discrimination." And

they did not address the issue of "unintentional, institutional, or unconscious" race

bias. Saintcalle,     178 Wn.2d at 36 ("Batson recognizes only 'purposeful




      11
           Erickson, 188 Wn.2d at 735 (quoting Saintcalle, 178 Wn.2d at 46).

      12
           Saintcalle, 178 Wn.2d at 54.

                                            19
State v. Jefferson (Tyree William), No. 94853-4


discrimination,'      whereas   racism   1s    often   unintentional,   institutional,   or

unconscious.").

                11.   GR 3 7 does address these two problems, but it does not apply
                      retroactively to the voir dire in this case

          This court adopted GR 3 7 in order to address these problems with the Batson

test. But Jefferson's trial, voir dire, and Batson challenge all occurred before GR 37

was effective. The question is whether GR 3 7 nevertheless applies to this case. This

is a long analysis, but the answer is no.

          GR 37 was adopted on April 5, 2018. The order adopting the new rule stated

that it was to become effective "upon publication." Order in the Matter of the

Proposed New Rule General Rule 37-Jury Selection, No. 25700.aA-1221 (Order re

GR 37) (Wash. Apr. 5, 2018). In its second supplemental brief, the State argues that

despite the order's language making it effective "upon publication," GR 9(i)(4)

actually makes GR 37 effective on September 1, 2018. Second Suppl. Br. ofResp't,

at 2-4.

          GR 9(i)( 4) describes the procedures for a rule-making cycle. It states,

"Proposed rules published in January and adopted by the Supreme Court shall be

republished in July and shall take effect the following September l ." Under ordinary

circumstances, the State's analysis of when a rule becomes effective would be

correct.



                                              20
State v. Jefferson (Tyree William), No. 94853-4


      GR 37, however, went through a different process. The American Civil

Liberties Union of Washington (ACLU) submitted suggested GR 37, which was then

labeled as GR 36, for consideration in 2015. PROPOSED NEW GR 37-JURY

SELECTION       WORKGROUP,     FINAL    REPORT    1 (undated)   (FINAL   REPORT),

http://www. courts. wa. gov/content/publicUp load/S upreme%20Court%200rders/Or

derNo25700-A-1221 Workgroup.pdf. We then published the proposed rule for

comment in November 2016. Order No. 25700-A-l 159 (Wash. Nov. 2, 2016). The

comment period ended April 30, 2017. Id. During the comment period, both the

Washington Association of Prosecuting Attorneys and the ACLU submitted

alternative rules; we received twenty-eight additional comments from various

organizations    and   individuals.    Comments   for   GR   37-Jury     Selection,

https://www.courts.wa.gov/court_rules/?fa=court_rules.commentDisplay&ruleid=

537. This court then formed a work group to determine whether a consensus could

be reached on a rule. Letter from Mary Fairhurst, Chief Justice, to proposed work

group members (July 17, 2017) (on file with court). The work group submitted a

new proposed GR 37 recommendation in its February 2018 final report. FINAL

REPORT app. 1.

      On April 5, 2018, we issued an order adopting the bulk of the work group's

proposed GR 37. The order stated that the "new rule will be published in the

Washington Reports and will become effective upon publication." Order re GR 37.


                                           21
State v. Jefferson (Tyree William), No. 94853-4


GR 37 was published in the official advance sheets of the Washington Reports on

April 24, 2018. 190 Wn.2d 1146-48. It states, "By orders dated April 5, 2018, the

Supreme Court made the following changes to the Rules of Court, effective April

24, 2018." Id.

      GR 37's journey differed substantially from the regular schedule for rule

making and adoption in GR 9(i). For rules enacted under GR 9(i)'s regular schedule

for review and adoption of rules, the order accompanying an adopted rule or rule

amendment states, "[The nlle] will be published in the Washington Reports and will

become effective September 1, 2018." See, e.g., In re Proposed Amend. to RAP 10.2,

Order No. 25700-A-1215 (Wash. Dec. 6, 2017) ; In re Proposed Amends. to RPC

1.0A, Order No. 25700-A-1211 (Wash. Dec. 6, 2017). But the text of the GR 37

order clearly states that it will become effective "upon publication." Thus, this court

did not rely on GR 9(i) for the effective date. Instead, we used our authority under

GR 9(j)(l) to adopt a rule "without following the procedures set forth in [GR 9]."

Therefore, GR 37 became effective April 24, 2018, and remains effective now, while

Jefferson's case is pending before us on direct appeal.

      Because GR 37 is effective during Jefferson's direct appeal, we must turn to

the potentially applicable rules concerning whether GR 37 must govern our current

assessment of the sufficiency of the pre-GR 37 jury selection procedures that

occurred far earlier in this case.


                                           22
State v. Jefferson (Tyree William), No. 94853--4


       First, we have the rule of prospective application, which states that statutes

generally apply prospectively from their effective date unless a contrary intent is

indicated. State v. Humphrey, 139 Wn.2d 53, 55, 983 P.2d 1118 (1999). Such rules

of statutory interpretation also apply to court rules like GR 37. State v. Robinson,

153 Wn.2d 689, 692, 107 P.3d 90 (2005). Thus, GR 37 would ordinarily apply

prospectively from its effective date unless a contrary intent was expressed. No

contrary intent was expressed. In fact, as discussed above, the order adopting GR 3 7

explicitly states that it "will become effective upon publication." Order re GR 37.

This weighs in favor of applying GR 37 prospectively to voir dires occurring after

its effective date. But it does not tell us very clearly whether GR 37 should also apply

prospectively-meaning today-as this court considers the sufficiency of the voir

dire and the Batson challenge that occurred earlier in this case.

      Another rule must also be considered to figure that out: the rule that a newly

enacted statute or court rule generally applies to all cases pending on direct appeal

and not yet final. Landgrcifv. US! Film Products, 511 U.S. 244,275, 114 S. Ct. 1483,

128 L. Ed. 2d 229 (1994); State v. Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130

(2007); State v. Blank, 131 Wn.2d 230,248, 930 P.2d 1213 (1997). Jefferson's case

is before us on direct appeal and is not yet final.

      But such a newly enacted statute or court rule will only be applied to

proceedings that occurred far earlier in the case if the "triggering event" to which


                                            23
State v. Jefferson (Tyree William), No. 94853-4


the new enactment might apply has not yet occurred. Pillatos, 159 Wn.2d at 471

("[W]e consider a statute to be retroactive if the 'triggering event' for its application

happened before the effective date of the statute." (citing State v. Belgarde, 119

Wn.2d 711, 722, 837 P.2d 599 (1992) (quoting Aetna Life Ins. Co. v. Wash. Life &

Disability Ins. Guar. Ass 'n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974)))); Blank, 131

Wn.2d at 248 ("'A statute operates prospectively when the precipitating event for

[its] application ... occurs after the effective date of the statute .... "' (alterations

in original) (quoting Aetna Life Ins. Co., 83 Wn.2d at 535)).

      What is the "triggering event" in this case that will determine whether

applying GR 37 would be permissibly prospective, or impermissibly retrospective?

The question this court asks to determine whether a new statute or new court rule

would be operating prospectively or retroactively if applied on appeal to preexisting

events is

      "whether the new provision attaches new legal consequences to events
      completed before its enactment. The conclusion that a particular rule
      operates 'retroactively' comes at the end of a process of judgment
      concerning the nature and extent of the change in the law and the degree
      of connection between the operation of the new rule and a relevant past
      event."

In re Pers. Restraint of Flint, 174 Wn.2d 539, 548, 277 P.3d 657 (2012) (quoting

Pillatos, 159 Wn.2d at 471 (quotingLandgref, 511 U.S. at 269-70)).




                                           24
State v. Jefferson (Tyree William), No. 94853-4


       This is not a completely scientific inquiry. But we generally hold that when

the new statute concerns a postjudgment matter like the sentence or revocation of

release, or a prejudgment matter that has not yet occurred because of the

interlocutory nature of the appeal, then the triggering event is not a "past event" but

a future event. In such a case, the new statute or court rule will apply to the sentence

or sentence revocation while the case is pending on direct appeal, even though the

charged acts have already occurred. 13 In contrast, where the new statute concerns a

problem with the charging document but the trial and conviction are over, then the

triggering event is over-so the new statute does not apply on appeal to that past

event. Pillatos, 159 Wn.2d at 471.

       In this case, the jury selection and the Batson challenge both occurred before

GR 37 became effective. The new rule does not change the elements of the crime or

anything about punishment, so it does not attach new legal consequences to past acts

of the defendant. On the other hand, the new rule implicates substantial




       13
          See, e.g., Flint, 174 Wn.2d at 548 ("[A] law is not retroactive merely because
some of the requisites for its application '"are drawn from a time antecedent to its
passage"'"; application of new community supervision revocation statute to previously
convicted defendant constitutes prospective, not retrospective, application (quoting
Belgarde, 119 Wn.2d at 722 (quoting State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052
(1973)))); Blank, 131 Wn.2d at 249 ("[T]he precipitating event for application of the
[legal/financial obligation] statute is termination of the appeal and affirmance of a
defendant's conviction, despite the fact that this event had its origin in a situation existing
prior to enactment of the statute.").

                                              25
State v. Jefferson (Tyree William), No. 94853-4


constitutional rights. The answer to whether the "triggering event" has already

occurred or not is, therefore, not crystal clear.

       We conclude that the voir dire and the Batson challenge in this case are more

similar to the charging instrument problem in Pillatos 14 (which implicated the

constitutional right to a jury determination on every element charged) than to the

supervision and sentencing problems in the Blank and Flint cases. And in Pillatos,

we held that the new statute could not be applied to the previously filed charging

instrument to which the defendant had already pleaded guilty. 159 Wn.2d at 480.

       Thus, in the context of a Batson challenge, the precipitating event is the voir

dire itself. Therefore, although Jefferson's case is still on direct appeal, the rule that

new statutes and court rules apply to all cases not yet final and still pending on direct

appeal does not allow us to apply GR 3 7 to change the consequences of the

completed voir dire in this case.

       There is one final consideration: we construe remedial and curative statutes to

operate not just prospectively, but also retrospectively. Pillatos, 159 Wn.2d at 4 73;

Macumber v. Shafer, 96 Wn.2d 568, 570, 637 P.2d 645 (1981) ("An exception is

recognized, however, if a statute is remedial in nature and retroactive application




       14
          There were four defendants at different stages of their criminal proceedings in
Pillatos. Jefferson's position is most similar to that of Pillatos and Butters, not Base and
Metcalf. Pillatos, 159 Wn.2d at 470-75.

                                            26
State v. Jefferson (Tyree William), No. 94853-4


would further its remedial purpose." (citing Agency Budget Corp. v. Wash. Ins.

Guar. Ass'n, 93 Wn.2d 416,495,610 P.2d 361 (1980))). A statute is remedial when

"it relates to practice, procedure, or remedies and does not affect a substantive or

vested right." Miebach v. Colasurdo, 102 Wn.2d 170,181,685 P.2d 1074 (1984)

(citing Johnston v. Beneficial Mgmt. Corp. ofAm., 85 Wn.2d 637,641,538 P.2d 510

(1975)). We have defined a "right" as a '"legal consequence deriving from certain

facts,"' while a "remedy" is a '"procedure prescribed by law to enforce a right."'

State v. McClendon, 131 Wn.2d 853,861,935 P.2d 1334 (1997) (quoting Dep't of

Ret. Sys. v. Kralman, 73 Wn. App. 25, 33, 867 P.2d 643 (1994)). GR 37 prescribes

juror selection procedures and is therefore partly remedial; but; it also affects

substantial constitutional rights and is therefore partly substantive. Thus, this final

interpretive rule also weighs against applying GR 37 to the completed voir dire in

this case.

       Adhering to our prior decisions in Pillatos, Blank, and Flint, we hold that GR

37 applies prospectively to all trials occurring after GR 37' s April 24, 2018 effective

date. But because the "triggering event" for its application was voir dire, we cannot

apply GR 3 7 to the completed Batson challenge in this case.




                                           27
State v. Jefferson (Tyree William), No. 94853-4


                 m.     The current Batson test must be modified in order to prevent
                        discrimination in jury selection

       We therefore address the problems with step three of the Batson test directly.

In order to meet the goals of Batson, we must modify the current test. Using our

authority as discussed in Erickson, 188 Wn.2d at 733, and Saintcalle, 178 Wn.2d at

51, we hold that the question at the third step of the Batson framework is not whether

the proponent of the peremptory strike is acting out of purposeful discrimination.

Instead, the relevant question is whether "an objective observer could view race or

ethnicity as a factor in the use of the peremptory challenge." If so, then the

peremptory strike shall be denied.

       As in Erickson, we apply this new test directly to this case. We do so because,

just as in Erickson, "[t]his alteration [would] not change the basis for a Batson

challenge. The evil of racial discrimination is still the evil this rule seeks to eradicate.

Rather, this alteration provides parties and courts with a new tool, allowing them an

alternate route to defend the protections espoused by Batson." 188 Wn.2d at 734.

       Whether "an objective observer could view race as a factor in the use of the

peremptory challenge" is an objective inquiry. It is not a question of fact about

whether a party intentionally used "purposeful discrimination," as step three of the

prior Batson test was. It is an objective inquiry based on the average reasonable

person-defined here as a person who is aware of the history of explicit race



                                            28
State v. Jefferson (Tyree William), No, 94853-4


discrimination in America and aware of how that impacts our current decision

making in nonexplicit, or implicit, unstated, ways. For that reason, we stand in the

same position as does the trial court, and we review the record and the trial court's

conclusions on this third Batson step de novo.15 This is a change from Batson's

deferential, "clearly erroneous" standard of review of the purely factual conclusion

about "purposeful discrimination."

       Applying de novo review here, as discussed in Section 1.C above, race could

be viewed as a factor in the peremptory strike of Juror 10. The prosecutor said he

struck Juror 10 because he had brought extraneous evidence-"things that were

irrelevant to the case"-into prior jury deliberations. 3 VRP (May 5, 2015) at 245.

But that is not what Juror 10 said. Juror 10 said only that he realized, in retrospect,

that he had discussed matters that were not germane. The prosecutor also said that

he struck Juror 10 because his responses to questions about the voir dire process and

12 Angry Men were so different from the responses of other jurors who went on to


       15
           See United States v. Grant, 696 F.3d 780, 785 (8th Cir. 2012) ("The objective
standard, which turns on a reasonable person's belief about the surrounding circumstances,
calls for a 'legal characterization that must be reviewed de novo."' (quoting United States
v. McKines, 933 F.2d 1412, 1426 (8th Cir. 1991) (en bane))); United States v. Bassignani,
575 F.3d 879, 883 (9th Cir. 2009) (holding that an objective custody determination under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is reviewed
de novo); State v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045 (2017) (stating that
ineffective assistance of counsel claims are reviewed de novo and require performance that
falls "below an objective standard ofreasonableness"); State v. Read, 147 Wn.2d 238,243,
53 P .3d 26 (2002) (holding that when the trial court denies a self-defense instruction based
on an objective assessment, the standard of review is de novo).

                                             29
State v. Jefferson (Tyree William), No. 94853-4


sit on the jury. But as discussed in Section 1.D, the record does not support that

characterization. In addition, the prosecutor essentially called out Juror 10 with a

sarcastic comment for no apparent reason. Taken together, these proffered, racially

neutral reasons for striking Juror 10 seem to lack support in the record. They reflect

differential treatment of the sole African-American juror, and hence, they "could"

support an inference of implicit bias.

      Additionally, while not specifically offered as a reason for the peremptory

strike by the State, the trial court's analysis offered "the fact that [the State] didn't

bond with [Juror 1OJ" as a reason for dismissal. Id. at 246. In his Batson concurrence,

Justice Marshall expressed his concern about such nebulous justifications, stating:

      A prosecutor's own conscious or unconscious racism may lead him
      easily to the conclusion that a prospective black juror is 'sullen,' or
      'distant,' a characterization that would not have come to his mind if a
      white juror had acted identically. A judge's own conscious or
      unconscious racism may lead him to accept such an explanation as well
      supported.

Batson, 476 U.S. at 106. In Saintcalle, we also recognized the pervasive force of

unconscious bias, stating, "[P]eople are rarely aware of the actual reasons for their

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

it." 178 Wn.2d at 49.

      Finally, and of importance in this case, we have recognized that such bias is

not necessarily limited to interracial incidents. Intraracial discrimination, both



                                           30
State v. Jefferson (Tyree William), No. 94853-4


explicit and implicit, exists as well. State v. Barber, 118 Wn.2d 335, 348, 823 P.2d

1068 (1992); see Devon W. Carbado & L. Song Richardson, The Black Police:

Policing Our Own, 131 HARV. L. REV. 1979, 1991-95 (2018). Without a more

specific record about why the prosecutor did not "bond" with a juror, this vague

assertion cannot serve as a valid, race-neutral justification for a peremptory strike.

       We reverse and remand for a new trial. 16 See Erickson, 188 Wn.2d at 73 5.

                                      CONCLUSION


       The Court of Appeals correctly held that the trial court's decision to deny the

Batson challenge was not clearly erroneous.

       But our current Batson standard fails to adequately address the pervasive

problem of race discrimination in jury selection. Based on the history of inadequate

protections against race discrimination under the current standard and our own

authority to strengthen those protections, we hold that step three of the Batson

inquiry must change: at step three, trial courts must ask if an objective observer could

view race as a factor in the use of the peremptory challenge. In this case, an objective

observer could view race as a factor in the peremptory strike of Juror 10.

       We therefore reverse and remand for a new trial.




       16 Given our resolution of this Batson issue, we do not reach the issue of the trial
court's decision to deny the motion for a mistrial.

                                            31
State v. Jefferson (Tyree William,), No. 94853-4




 WE CONCUR:




                                            32
State v. Jefferson, No. 94853-4
Yu, J. (concurring)




                                     No. 94853-4

       YU, J. (concurring)- I concur with the lead opinion's conclusion that our

current Batson framework fails to adequately address the pervasive problem of

racial discrimination in jury selection. Lead opinion at 31; Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). And I supported the

adoption of GR 3 7, a rule intended to address commonly held, but entirely

incorrect, assumptions that the life experiences of people of color negatively affect

their ability to be fair and impartial jurors. However, while I applaud the rule's

intent and sincere efforts to apply it, no court rule can overcome the intellectual

gymnastics and assumptions required to isolate implicit bias in jury selection. GR

3 7 is thus an unsatisfying, partial solution to a severe, intractable problem.

       I concur with the lead opinion's analysis in this case, but I nevertheless

remain convinced that nothing short of complete abolishment of the peremptory

challenge, coupled with further development of our "for cause" challenge

jurisprudence, will get us on the right path toward finally eradicating racial bias in



                                            1
State v. Jefferson, No. 94853-4
Yu, J. (concurring)

jury selection. City of Seattle v. Erickson, 188 Wn.2d 721, 739-41, 398 P.3d 1124

(2017) (Yu, J., concurring); see also State v. Saintcalle, 178 Wn.2d 34, 69-118,

309 P.3d 326 (2013) (Gonzalez, J., concurring). We just need to say no to

removing jurors based on a hunch.

       I respectfully concur.




                                         2
State v. J~fferson, No. 94853-4
Yu, J. (concurring)




                                  3
State v. Jefferson (Tyree William)




                                          94853-4


       MADSEN, J. (concurring/dissenting)-! agree with the lead opinion that Juror

l0's dismissal was racially motivated. I also agree that, in general, Batson v. Kentucky,

476 U.S 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), has not been adequate in combating

race discrimination injury selection. However, I write separately because the lead

opinion essentially adopts GR 37 into our Batson framework, which is unnecessary and

inappropriate. Indeed, GR 37 was never meant to be a constitutional rule backed by

constitutional protections.

       Under Batson, a criminal defendant is denied equal protection when members of

the jury pool are struck on the basis of racial discrimination. 476 U.S. at 85 ("Exclusion

of black citizens from service as jurors constitutes a primary example of the evil the

Fourteenth Amendment was designed to cure."). While a juror may be excluded if unfit,

"[a] person's race simply 'is unrelated to his fitness as a juror."' Id. at 87 (quoting Thiel

v. S. Pac. Co., 328 U.S. 217,227, 66 S. Ct. 984, 90 L. Ed. 1181 (1946)). Thus, "the

State's privilege to strike individual jurors through peremptory challenges[] is subject to

the commands of the Equal Protection Clause." Id. at 89.
94853-4
Madsen, J., concurring/dissenting


       Three elements must be met in order to succeed in bringing a Batson challenge.

First, the defendant must establish a prima facie case of purposeful discrimination. Id. at

96. We have previously held that "the trial court must recognize a prima facie case of

discriminatory purpose when the sole member of a racially cognizable group has been

struck from the jury." City ofSeattle v. Erickson, 188 Wn.2d 721,734,398 P.3d 1124

(2017). If the first step is satisfied, the burden shifts to the prosecutor who must establish

an adequate and race-neutral justification for striking the juror. Id. at 726-27. While the

Batson Court did not require the same inquiry as is required in a for-cause challenge, the

"race neutral" reason must be assessed against the constitutional protection and the

inquiry should be close to a for-cause challenge in that the reasons must go to juror

qualifications. Batson, 476 U.S. at 87 ("[c]ompetence to serve as a juror ultimately

depends on an assessment of individual qualifications and ability impartially to consider

evidence presented at a trial"). For example, the notion that a black juror will be more

sympathetic to the defendant or that black jurors do not possess the sufficient

'"intelligence, experience, or moral integrity'" is not a "race-neutral" reason. Id. at 105

(Marshall, J., concurring) (quoting Neal v. Delaware, 103 U.S. (13 Otto) 370, 397, 26 L.

Ed. 567 (1881)). Finally, if the prosecutor provides a race-neutral justification, "the court

must weigh all relevant circumstances and decide if the strike was motived by racial

animus." Erickson, 188 Wn.2d. at 727. Purposeful discrimination may be established in

various ways. For example, the court will find purposeful discrimination if the

"prosecutor's reasons for striking a black prospective juror apply equally to an otherwise



                                              2
94853-4
Madsen, J., concurring/dissenting


similar nonblack prospective juror who is allowed to serve." 1 Foster v. Chatman,

U.S.      , 136 S. Ct. 1737, 1742, 195 L. Ed. 2d 1 (2016).

       The lead opinion's primary contention is that the third element in the Batson

framework is too stringent and makes it difficult for defendants to prove many, even

obvious, instances of discrimination. The court, cognizant of Batson' s shortcomings,

enacted GR 37, which states,

               ( c) Objection. A party may object to the use of a peremptory
       challenge to raise the issue of improper bias. The court may also raise this
       objection on its own. The objection shall be made by simple citation to this
       rule, and any further discussion shall be conducted outside the presence of
       the panel. The objection must be made before the potential juror is
       excused, unless new information is discovered.

               (e) Determination. The court shall then evaluate the reasons given to
       justify the peremptory challenge in light of the totality of circumstances. If
       the court determines that an objective observer could view race or ethnicity
       as a factor in the use of the peremptory challenge, then the peremptory
       challenge shall be denied. The court need not find purposeful
       discrimination to deny the peremptory challenge. The court should explain
       its ruling on the record.

190 Wn.2d 1146-47 (2018) (emphasis added) (boldface omitted).

       Unlike Batson's proof of racial motivation requirement, GR 37 offers broader

protection-denying peremptory challenges where "an objective observer could view

race or ethnicity as a factor." However, GR 37, as the lead opinion correctly held, does



1
  Because the trial court is in the best position to assess any purposeful discrimination against a
juror, we will not disturb the trial court's ruling on a Batson challenge unless the record
demonstrates the denial was clearly erroneous. See State v. Hicks, 163 Wn.2d 477,494, 181
P.3d 831 (2008); State v. Saintcalle, 178 Wn.2d 34, 56, 309 P.3d 326 (2013) (plurality opinion).



                                                 3
94853-4
Madsen, J., concurring/dissenting


not apply here. Specifically, GR 37 does not apply because it became effective after the

"triggering event," voir dire and the Batson challenge in this case, and does not apply

retroactively.

       Still, rather than apply our traditional Batson framework, the lead opinion creates a

new constitutional rule in place of the third element:

       If a Batson challenge to a peremptory strike of a juror proceeds to that third
       step of Batson's three-part inquiry, then the trial court must ask whether an
       objective observer could view race or ethnicity as a factor in the use of the
       peremptory strike. If so, then the strike must be denied and the challenge to
       that strike must be accepted.

Lead opinion at 2. Confusingly, while the lead opinion concedes that GR 37 does not

apply here, its new element is a carbon copy of the rule. In effect, the lead opinion is

applying GR 3 7 under a new guise. If this court intended to back GR 37 with

constitutional protections, it would not have promulgated the requirements of GR 37

under our court rules. Indeed, unlike a constitutional violation under Batson, the text of

GR 37 includes no remedy for noncompliance. The lead opinion's attempt to incorporate

GR 37 into our Batson framework is unfounded and renders GR 37 superfluous.

       At any rate, the facts of this case demonstrate a peremptory strike based on racial

motivation. Here, the prosecutor pointed to three comments made by Juror 10 during

voir dire as justification for his dismissal.

       First, the prosecutor explained that he was troubled by the fact that Juror 10 said

the prosecutor's questions were a "waste of time." In that interaction, the prosecutor

began his final 20 minutes of questioning by specifically asking Juror 10:



                                                4
94853-4
Madsen, J., concurring/dissenting


       Why am I still here with 20 minutes to question you? Why does the Court
       allow that? . . . You think I should continue to ask questions and take
       advantage of the time, or do you think it's enough that everybody stood up
       and took the oath?

2 Verbatim Report of Proceedings (VRP) (May 4, 2015) at 175-76. In response, Juror 10

said that for him, personally, the additional questions were a waste of time, and he didn't

think that the prosecutor should waste any time. Id. at 176. The prosecutor specifically

addressed these questions to Juror 10. Targeting Juror 10 with this question is some

evidence that the prosecutor was inviting the sort of answer he received. The lead

opinion correctly explains that despite stating that a prosecutor should not waste time,

Juror lO's answer was generally similar to the answers given by Jurors 23 and 25, both of

whom were not struck from the jury. What's more, the question was addressed

differently to Juror 10 than to Jurors 23 and 25. Juror 10 was initially asked vaguely and

abstractly whether the prosecutor should continue to use up all of his allotted time.

Alternatively, Jurors 23 and 25 were asked whether they would want their lawyer to take

up the allotted time if they were the defendant.

       The second reason the prosecutor gives for dismissing Juror 10 is that he was too

enthusiastic about the movie 12 Angry Men. According to the prosecutor, Juror 10 was

struck because when asked about the movie by defense counsel, "he seemed very

enthusiastic about the movie." 3 VRP (May 5, 2015) at 244. While Jurors 1, 9, and 23

also said they have seen the movie and gave a brief synopsis, the prosecutor was

apparently troubled only by Juror 10 because he had a stronger recollection of the movie.

This is not a sufficient race-neutral reason and is merely a pretext for discrimination.

                                              5
94853-4
Madsen, J., concurring/dissenting


Excluding Juror 10 because he is familiar with 12 Angry Men may not be overtly race

based, but it does suggests that the prosecutor had a "gut feeling" that Juror 10 would be

too sympathetic to the defendant. While other jurors were familiar with the movie, it is

telling that the prosecutor was most concerned with Juror 10. Of course, Juror lO's

familiarity with any movie has nothing to do with his fitness as a juror. Indeed, it appears

the prosecutor was likely concerned that Juror 10 would be sympathetic to a member of

his own race and would attempt to sway the other jury members in favor of the

defendant.

   Finally, the prosecutor explained that he was troubled by the fact that Juror 10 had

served on a prior jury and admitted that he considered matters that were not germane to

deliberations. Specifically, Juror 10 said he "was too open-minded." 3 VRP (May 5,

2015) at 229. It is unclear what Juror 10 meant by his remark about being "too open-

minded." A juror is permitted to bring life experience and knowledge into the jury

deliberation room. Indeed, the prosecutor did not seem troubled by the fact that Juror 11,

when asked how he determines credibility, said:

       Life experience, people I've dealt with-I'm 65 years old, and I been
       basically out on my own since I got drafted at age 19. So I been able to
       interact with different people. I worked for 32 years in the fire department,
       interacted with a lot of Asian, Hispanic, African-American. So I take all
       that information I've got over the years and try to make the best judgment
       that I can. I mean-and some of the-I guarantee you, it's not gonna be
       the best because I'm maybe a little prejudiced toward one age group
       because I don't trust anybody under 30, or I trust more people my age.

2 VRP (May 4, 2015) at 180. It is difficult to understand why the prosecutor seemed

troubled by Juror l0's statements, but not Juror 11 's. Juror 11 blatantly admitted he

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would rely on his prejudices to assess credibility. Once again, it appears that the

prosecutor was scrutinizing Juror 10 more closely than the rest of the jury pool. This

raises concerns as to the prosecutor's subjective beliefs. Specifically, the prosecutor did

not seem to be concerned generally about issues not germane to the case being brought

into deliberations. Instead, it appears the prosecutor was worried about the type of

information that Juror 10, as an "open-minded" black man, would bring into

deliberations. Of course, perceived viewpoints and stereotypes based on race are not

race-neutral justifications for exclusion.

       Because I would conclude that GR 37 does not apply in this case and that Juror

10' s dismissal constituted racial discrimination under our traditional Batson framework, I

respectfully dissent.




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