           IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                            )
                                                )
                          Respondent,           )              No. 86825-5
                                                )
      v.                                        )                 EnBanc
                                                )
GARY DANIEL MEREDITH,                           )
                                                )    Filed ____A_U_G_n_8_2_01_3__
                           Petitioner.          )
______________________________)

      OWENS, J. -- The equal protection clause of the federal constitution prohibits

racial discrimination during the jury selection process. Batson v. Kentucky, 476 U.S.

79, 86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Such discrimination injury selection

harms not only individual defendants and excluded jurors, it undermines the public's

confidence in the basic fairness of the judicial system. Id. at 87. The United States

Supreme Court established a three-part test (the Batson test) to detect and eradicate

the discriminatory use of peremptory challenges during jury selection. The first step

of the Batson test requires that the defendant make a prima facie showing of

discrimination. Id. at 93-94.




                                            1
State v. Meredith
No. 86825-5


       In 2010, this court addressed that first step of the Batson test in State v. Rhone,

168 Wn.2d 645, 229 P.3d 752 (2010). In Rhone, the four-vote lead opinion applied

this state's established rule for the first step of the Batson test. See id. at 657. The

four-vote dissent proposed a new bright-line rule. See id. at 661. Chief Justice

Madsen wrote a concurrence stating, "I agree with the lead opinion in this case.

However, going forward, I agree with the rule advocated by the dissent." Id. at 658

(Madsen, C.J., concurring). This has caused lower courts to question whether, going

forward, they should follow the rule in the lead opinion or the dissent of Rhone. See,

e.g., State v. Meredith, 163 Wn. App. 75, 165 Wn. App. 704, 711-12, 259 P.3d 324

(2011), review granted, 173 Wn.2d 1031, 275 P.2d 303 (2012).

       To clarify this issue, we granted review in this case solely on the scope of the

bright-line rule articulated in Rhone. We now clarify that Rhone did not establish a

bright-line rule and that the rule in Washington remains the rule applied in the lead

opinion in Rhone.

                                          FACTS

       In 1996, Gary Meredith was charged by amended information with rape of a

child in the second degree and communication with a minor for immoral purposes.

During jury selection for Meredith (a Caucasian man) the State used a peremptory

strike to remove the only African-American member of the venire panel, juror 4.

Meredith's counsel raised a Batson objection to the State's use of a peremptory



                                              2
State v. Meredith
No. 86825-5


challenge against juror 4. Explaining the basis for the objection, Meredith's counsel

stated that none of the juror's answers provided a proper basis for removal (such as

confusion, evasiveness, or bias) and that the only reason the juror was removed was

because of her race.

       The prosecutor responded that Meredith's counsel had failed to satisfy his

burden of proof because he had not presented any evidence other than to indicate that

juror 4 appeared to be the only African-American on the panel. The prosecutor then

indicated that there might be other racial minorities on the panel. Meredith's counsel

responded that a prima facie case had been made and not rebutted. He then moved for

a mistrial. The trial court denied Meredith's Batson objection. The jury subsequently

found Meredith guilty of both rape of a child in the second degree and communicating

with a minor for immoral purposes.

       After his conviction, Meredith absconded and did not appear for his sentencing

hearing in July 1996. The court then issued a bench warrant for Meredith's arrest.

Twelve years later, Meredith was finally arrested and extradited to Washington. 1 In

2008, the trial court entered the judgment and sentence, imposing a 198-month

sentence. Meredith appealed and while that appeal was pending, this court decided

Rhone.

1
  The State does not make any argument as to whether Meredith's decision to abscond
has any legal significance in this case. Because we find that Rhone did not establish a
bright-line rule, we do not address whether Meredith's decision to abscond has legal
significance.

                                            3
State v. Meredith
No. 86825-5


       The Court of Appeals affirmed Meredith's conviction and sentence. Meredith,

165 Wn. App. at 707. With respect to the Batson objection, the Court of Appeals

majority expressed confusion as to whether the Rhone court adopted the bright-line

rule from the dissent, but the Court of Appeals majority proceeded to hold that

Meredith had failed to establish a prima facie case of purposeful discrimination under

either the Rhone lead opinion's analysis or the dissent's bright-line rule.

       Meredith petitioned this court for review of the Court of Appeals decision with

respect to his Batson objection. We granted review "only on the issue of the scope of

the bright line rule articulated in [Rhone] in establishing a prima facie case of

discrimination under [Batson]." Order, State v. Meredith, No. 86825-5 (Wash. Apr.

23, 2012).

                                          ISSUE

        What is the scope of the bright-line rule articulated in the Rhone dissent?

                                       ANALYSIS

        In Rhone, four justices signed the lead opinion that employed the rule

articulated in State v. Hicks, 163 Wn.2d 477, 490, 181 P.3d 831 (2008), and State v.

Thomas, 166 Wn.2d 380, 397-98, 208 P.3d 1107 (2009), that a trial court may, but

need not, find that a party has made a prima facie showing under Batson "'based on

the dismissal of the only venire person from a constitutionally cognizable group."'

Rhone, 168 Wn.2d at 653 (lead opinion) (internal quotation marks omitted) (quoting



                                             4
State v. Meredith
No. 86825-5


Thomas, 166 Wn.2d at 397). The lead opinion required "'something more' than a

peremptory challenge against a member of a racially cognizable group." !d. at 654.

       Four justices signed a dissent authored by Justice Alexander that would have

adopted, in that case, a bright-line rule "that a prima facie case of discrimination is

established under Batson when the sole remaining venire member of the defendant's

constitutionally cognizable racial group or the last remaining minority member of the

venire is peremptorily challenged." Id. at 661 (Alexander, J., dissenting). Chief

Justice Madsen signed neither opinion and instead wrote a two-sentence concurrence

stating, "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).

       The Court of Appeals expressed uncertainty as to whether the court had

adopted the bright-line rule described in the Rhone dissent. We now clarify that the

court did not adopt that bright-line rule. Chief Justice Madsen's concurrence with the

lead opinion "in this case" resolved the Rhone case. !d. Her second sentence

expresses support for adoption of a bright-line rule in a future case, but it does not

relate to the disposition of Rhone and is merely dicta. Until five justices agree to

actually adopt such a bright-line rule, the previous rule remains in effect.

       The Court of Appeals found that the trial court did not err under pre-Rhone case

law. Because we granted review only on the scope of the bright-line rule articulated

in Rhone, we do not review this portion of the Court of Appeals decision and thus



                                             5
State v. Meredith
No. 86825-5


need not proceed with an analysis of Meredith's Batson objection under pre-Rhone

case law.

                                   CONCLUSION

       We granted review of this case so that we could clarify whether Rhone

established a bright-line rule. We hold that it did not. Accordingly, we affirm the

Court of Appeals.




                                           6
State v. Meredith
No. 86825-5




WE CONCUR:




                    7
State v. Meredith (Gary Daniel)




                                        No. 86825-5


         MADSEN, C.J. (concurring)-In State v. Rhone, 168 Wn.2d 645, 658, 229 P.3d

752 (2010) (Madsen, C.J., concurring), I agreed with the dissent that a defendant should

be able to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986), if the prosecutor exercised a peremptory challenge causing

dismissal of the only remaining member of the venire who is in the same constitutionally

cognizable racial group as the defendant or is the last remaining minority member of the

vemre.

         This method of establishing a prima facie case is consistent with the United States

Supreme Court's descriptions of ways to establish the prima facie case. In Batson, the

Court observed that instead of showing systematic discrimination, a defendant can rely

solely on circumstances surrounding jury selection in his or her own case. Batson, 47 6

U.S. at 95. The Court noted that the prima facie case may be shown when an inference of

discrimination arises from a pattern of strikes against black members of the venire or,

similarly, questions and answers during voir dire and jury selection may support an

inference of discriminatory purpose. !d. at 96-97.
No. 86825-5
Madsen, C.J., concurring


       In Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005),

the Court examined other specific ways in which evidence might establish a prima facie

case, including, among other things, statistical evidence showing prosecutors

disproportionately excluded blacks from the jury pool, evidence of markedly different

questioning of black members of the venire from questioning of white members of the

venire, and side-by-side comparisons of black venire members who were excluded to

white venire members who were accepted.

       State courts are not bound to any specific method for establishing the prima facie

case. The Court has explicitly said that the states have "flexibility in formulating

appropriate procedures to comply with Batson" and recognized that this flexibility

applies to establishment of the prima facie case. Johnson v. California, 545 U.S. 162,

168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). 1 Permitting an inference of

discrimination to arise from a peremptory strike against the sole member of the

defendant's racially cognizable group or the last remaining member of a minority in the

jury pool is a rule for establishing a prima facie case that falls within the guidelines

suggested by the Court and lies within the "flexibility" a state court has to formulate

ways in which to comply with Batson's test.

       In Rhone, although the dissent would have applied the bright line rule it

advocated, I did not agree that the rule should apply in Rhone itself but instead should be

a rule "going forward." Rhone, 168 Wn.2d at 658 (Madsen, C.J., concurring). By "going

 1
 The Court has also expressed confidence that trial courts will be able to decide whether
circumstances give rise to the inference. Batson, 476 U.S. at 97.


                                                2
No. 86825-5
Madsen, C.J., concurring


forward," I mean that this alternative method of establishing the prima facie case should

be available once trial courts, prosecuting attorneys, and defendants and their counsel are

on notice that this rule may be followed to establish a prima facie case. Thus, the rule

should apply only when jury selection in the particular case occurred after Rhone was

filed.

         We have not yet been confronted with such a case. In the present case, jury

selection occurred many years prior to the April 1, 2010 filing date of Rhone. Therefore,

in my view, we have no cause to decide whether the rule in Rhone's dissent, to which I

agreed, should apply.

         I concur in the majority's conclusion that the rule does not apply in the present

case.




                                                3
No. 86825-5
Madsen, C.J., concurring




                           4
State v. Meredith (Gary Daniel)




                                   No. 86825-5




      STEPHENS, J. (concurring)-In its attempt to decide this case on the

narrowest possible ground, the majority offers an opinion that does nothing. It

merely explains that our prior decision in State v. Rhone, 168 Wn.2d 645, 229 P.3d

752 (2010) also did nothing, at least nothing in terms of modifying the framework

for evaluating claims of discriminatory jury selection under Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). I find today's opinion

wholly unsatisfying.

      This case will no doubt be read in conjunction with State v. Saintcalle, No.

86257-5 (Wash. Aug. 1, 2013), in which the lead and concurring opinions lament

that Batson has been largely ineffective, though only one opinion-Justice

Chambers's dissent-would embrace the burden-shifting approach that five

members of this court favored in Rhone. While we have today confirmed that

Rhone did not garner a majority view, I think we do a disservice to leave matters at

that. We should answer the question whether the use of a peremptory challenge to

eliminate the sole African American venire member automatically establishes a
State v. Meredith (Gary Daniel), 86825-5
(Stephens, J. Concurrence)




prima facie case of race-based discrimination. It was unnecessary to answer this

question in Saintcalle, but it is squarely presented here.

      The answer to this question is no because Batson seeks to eradicate only

purposeful discrimination. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410,

162 L. Ed. 2d 129 (2005); State v. Hicks, 163 Wn.2d 477, 181 P.3d 831 (2008);

State v. Thomas, 166 Wn.2d 380, 208 P.3d 1107 (2009).            A trial judge has

discretion to determine when a peremptory challenge that removes the sole

member of a protected group from the jury panel shows a discriminatory purpose.

An absolute rule that requires a trial judge to find purposeful discrimination

without any evidence of discriminatory purpose is not required by the constitution

and crosses the line into making public policy. I signed the lead opinion in Rhone

because it is consistent with what the constitution requires, and I would take this

opportunity to reinforce that holding.

       My view should not be confused with a lack of concern for Batson's empty

promise of community representation on juries. It is a shame that we have seen so

little progress so many years after Batson. But, as I observed in my concurrence in

Saintcalle, the problem is not one the judicial branch can solve on its own. Finding

a meaningful solution will require consideration of issues far beyond the briefing

in these two cases and legislative and social resources beyond what this court can

devote.

       I respectfully concur in the decision to affirm.



                                           -2-
State v. Meredith (Gary Daniel), 86825-5
(Stephens, J. Concurrence)




                                           -3-
State v. Meredith, No. 86825-5 (Gonzalez, J. dissenting)




                                         No. 86825-5

       GONZALEZ, J. ( dissenting)-Our democracy is based on respect for the rule of

law. When we are unable to resolve our disputes amicably by ourselves, we go to

court and accept the judgment of our peers even when we do not like the outcome.

This system works only if we all believe it is fair. If people are excluded from jury

service because of color or creed, we risk eroding faith in the justice of our

democracy.

       Fortunately, the equal protection clause of the federal constitution prohibits all

racial discrimination during the jury selection process. Batson v. Kentucky, 476 U.S.

79, 86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Batson was a good first step toward

implementing the promise of the equal protection clause in jury selection, but it left

the job partly done. Batson established a three-part test to determine if the State

improperly used a peremptory challenge in a criminal case to exclude a potential juror

based on race, real or perceived. First, the defendant must make a prima facie case of

purposeful discrimination by raising an inference that a peremptory challenge was

used to exclude a potential juror because of his or her race. State v. Rhone, 168

Wn.2d 645, 651, 229 P.3d 752 (2010) (citing Batson, 476 U.S. at 96). This first

element is the one at issue for Meredith. Second, once a prima facie case is made, the

prosecutor is asked if there is a race-neutral explanation for wanting to remove the
State v. Meredith, No. 86825-5 (Gonzalez, J. dissenting)




person from the pool. Id. Finally, considering the challenge, the race-neutral

response, and the record as a whole, the court must determine if the defendant has

established purposeful discrimination by a preponderance of the evidence. Id. If the

court has followed this procedure, the judge's determination is given great deference

on appeal, and the ruling will stand unless it is clearly erroneous. Rhone, 168 Wn.2d

at 651 (citing State v. Hicks, 163 Wn.2d 477,468, 181 P.3d 831 (2008)). 1

       In Rhone, five justices of this court established a more stringent rule to police

against racial prejudice in jury selection. In Rhone, those five justices established that

"going forward," "a prima facie case of discrimination is established under Batson

when the sole remaining venire member of the defendant's constitutionally cognizable

racial group or the last remaining minority member of the venire is peremptorily

challenged." Rhone, 168 Wn.2d at 658 (Madsen, C.J., concurring), 661 (Alexander,

J., dissenting joined by Sanders, Chambers, and Fairhurst, JJ.). Rhone applies to all

cases not final the day it was announced. In re Pers. Restraint of St. Pierre, 118




1The Batson rule has been extended to defendants as well as prosecutors. Georgia v McCollum,
505 U.S. 42, 44, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). It has also been extended to civil
cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, Ill S. Ct. 2077, 114 L. Ed. 2d
660 (1991). The rule was further extended to cover gender discrimination. See JE.B. v.
Alabama ex rei. T.B., 511 U.S. 127, 145, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The rule in
Batson, however, is narrower than the equal protection clause. If construed penuriously, the
Batson rule addresses only overt discrimination and does little, if anything, to combat implicit
bias.
        In another case before this court, State v. Saintcalle, the limitations of the Batson rule and
our jury selection process are apparent. No. 86257-5 (Wash. Aug. 1, 2013). The bright spot is
that a majority of this court recognizes that bias is a factor in jury selection in Washington and
that the Batson rule is largely ineffective in preventing it. Perhaps this recognition will lead to
real changes in the jury selection process.

                                                  2
State v. Meredith, No. 86825-5 (Gonzalez, J. dissenting)




Wn.2d 321, 330, 823 P.2d 492 (1992). Meredith's appeal was not final the day Rhone

was announced. He is entitled to its benefit.

       Meredith is not a sympathetic litigant. He was convicted by a jury of rape of a

child in the second degree and communication with a minor for immoral purposes.

Meredith is white. He objected to the dismissal of a juror who was not white: the only

African American person on the jury panel. Meredith argued that there was nothing

in the jury questionnaires or the prospective juror's responses that indicated the juror

would not be a fine juror. In response, the State asserted that Meredith had not met

his burden of proof under Batson. The trial judge agreed in a cursory ruling. The

judge did not require the State to offer a race-neutral reason for dismissing the last

African American juror.

       Meredith was convicted by that jury. Before he was sentenced, he ran away

and hid for a dozen years, avoiding punishment for his crimes. He was eventually

arrested and sentenced in 2008. If Meredith had not been in hiding for over a decade,

he would have been sentenced and likely would have served a long prison term. He

would probably not have had a successful challenge to the process of jury selection in

his case under the Batson rule as applied in our State at the time. See, e.g., Hicks, 163

Wn.2d at 486. While he was gone, however, the law changed in his favor.

       I understand why some hesitate to give Meredith the benefit of this change

given his crimes and his flight from justice. But we must not decide cases based on

sympathy or lack of it. The law protects even those like Meredith. 2 In Rhone, five

2In Saintcalle, we have declined to adopt a robust reading of Batson or to address in any way the
problem of unchecked implicit bias injury selection. If we limit Batson, but are serious about

                                                3
State v. Meredith, No. 86825-5 (Gonzalez, J. dissenting)




justices of this court established that "going forward," "a prima facie case of

discrimination is established under Batson when the sole remaining venire member of

the defendant's constitutionally cognizable racial group or the last remaining minority

member of the venire is peremptorily challenged." Rhone, 168 Wn.2d at 658

(Madsen, C.J., concurring), 661 (Alexander, J., dissenting, joined by Sanders,

Chambers and Fairhurst, JJ.). Rhone applies to all cases not final the day it was

announced. St. Pierre, 118 Wn.2d at 330. Under Rhone, Meredith made a timely

objection and established a prima facie case of discrimination in the selection of the

jury in his case. The State was thus obligated to offer a race-neutral reason for

dismissing the last African American juror. It did not. This is reversible error.

Therefore, I would reverse his conviction.

       I respectfully dissent.




addressing insidious discrimination injury selection, we should consider (1) eliminating
peremptory challenges all together, since we are not as good at discerning "good" jurors as we
think we are; (2) reducing the number of peremptory challenges available to limit the mischief of
unfettered exercise of challenges while preserving some discretion to litigants who, despite the
evidence, cling to the beliefthat they know which jurors to eliminate; or (3) adopting a jury
selection process similar to that used in federal court in the Western District of Washington,
where voir dire is largely judge driven, reducing the ability of litigants to manufacture seemingly
race-neutral reasons to justify challenging certain jurors based on unfounded stereotypes.

                                                 4
State v. Meredith, No. 86825-5 (Gonzalez, J. dissenting)




                                                5
State v. Meredith (Gary)




                                       No. 86825-5

      CHAMBERS, J.* (dissenting)- I dissent. I expressed my view of why

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), does not
work and must be abandoned in State v. Saintcalle, No. 86257-5 (Chambers, J.,

dissenting) (Wash. Aug. 1, 2013). I strongly believe that Justice Alexander was

right in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010). As I said in

Saintcalle, Batson had a limited purpose: to reduce purposeful racial discrimination
in the jury selection process. Saintcalle, slip op. at 1 (Chambers, J.P.T., dissenting).

But "Batson was doomed from the beginning because it requires one elected

person to find that another elected person (or one representing an elected person)

acted with a discriminatory purpose .... Further, Batson, by design, does nothing

to police jury selection against unconscious racism or wider discriminatory

impacts." Id. Following the rule set forth in Justice Alexander's opinion in Rhone,

I would hold that a prima facie case of discrimination is established when the sole

remaining venire member of a constitutionally cognizable racial group is

peremptorily challenged. Rhone, 168 Wn.2d at 661 (Alexander, J., dissenting).

       Meredith's appeal was pending when we announced Rhone. Meredith has

established a prima facie case of discrimination. It was not rebutted. He is entitled

to a new trial. I would reverse his conviction. I respectfully dissent.




*Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
State v. Meredith, No. 86825-5
Chambers, J.P.T., dissenting




                                 2
