                                                                     This opinion was
                                                                      filed for/ecord
/FTCEV
X     IN CLERKS OPFICE   X
■UnSE COURT. amiE CF WMH^QTON                                      Susan L. Carlson
             JAW 0 9 212^                                         Supreme Court Clerk

" GmBFJusnce /




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON


    STATE OF WASHINGTON,

                           Petitioner,           No. 96344-4
                                                (consolidated with No. 96345-2)
            V.



    KARL EMERSON PIERCE,

                           Respondent.


    STATE OF WASHINGTON,

                           Petitioner,           Ffs'l     JAN 0 9 20211
            V.



    MICHAEL WILLIAM BIENHOFF,

                           Respondent.


            Gonzalez, J.—Our constitutions separate power into many hands.

    Among those hands are the hands of the jury. CONST, art. I, § 22; U.S.

    Const, amend. VI. Juries are just as vital a check on government power as

    the separation of powers between the legislative, executive, and judicial
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


branches. See Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 504, 198

P.3d 1021 (2009). To perform their vital function,juries must be fairly

selected. State v. Lanciloti, 165 Wn.2d 661, 667-68, 201 P.3d 323 (2009).

Jury selection must be done in a fair way that does not exclude qualified

jurors on inappropriate grounds, including race. See City ofSeattle v.

Erickson, 188 Wn.2d 721, 723, 398 P.3d 1124(2017)(citing Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986)); GR 37. As

part oftheir constitutional role, courts ultimately have the obligation of

ensuring those before them receive due process oflaw. See, e.g.. State v.

Oppelt, 172 Wn.2d 285, 288, 257 P.3d 653 (2011); City ofRedmond v.

Moore, 151 Wn.2d 664, 677, 91 P.3d 875 (2004).

       Michael Bienhoff and Karl Pierce were tried before a jury and found

guilty of first degree felony murder. They contend, among other things, that

their jury was not fairly selected because the State improperly elicited a

conversation about the death penalty during voir dire and improperly used a

peremptory strike to dismiss an African-American juror. The Court of

Appeals found that the prosecutor committed misconduct by eliciting a

conversation about the death penalty in a noncapital case and that the trial

court abused its discretion in not curtailing that conversation. Since that

conversation led to the dismissal of at least two jurors, the Court of Appeals
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


reversed both men's convictions. We affirm the Court of Appeals on

different grounds.

                                         Facts


       One day in Woodland Park, shortly before 1-502' passed, a group of

men met ostensibly to buy and sell cannabis. Before the end of that day, one

of those men. Precious Reed, had been killed in a gunfight. Bienhoff and

Pierce were charged with first degree felony murder predicated on first

degree robbery. Based on the facts alleged in the statement of probable

cause, they could have been charged with first degree aggravated murder,

which potentially carried a death sentence at the time. RCW

10.95.020(1 l)(a); RCW 9A.32.030(1)(a). The State elected not to seek the

death penalty.

       A large panel of potential jurors was summoned. Under Washington

law at the time, it was error to inform these potential jurors about the

possible sentencing consequences the defendants faced. State v. Townsend,

142 Wn.2d 838, 846, 15 P.3d 145 (2001)(quoting Shannon v. United States,

512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994)). This

prohibition specifically extended to the death penalty. Id. The prosecutor



'Initiative 502 largely decriminalized cannabis under Washington State law; created a
regulatory system to oversee its production, processing, and distribution; and subjected it
to excise taxes. Laws OF 2013, ch. 3.
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


asked the trial judge how they should proceed ifjurors, as they often do,

asked whether the death penalty was being sought. The trial judge said he

had, in the past,"evaded the question," but he was willing to address the

issue "with the group as a whole, if that's what counsel thinks I need to do."

Verbatim Tr. of Proceedings(VTP)(Sept. 21, 2015) at 406. The prosecutor

responded:

               The State's preference is to address it head on, of course, in
       accordance with the law, which is to instruct them that our state
       Supreme Court has decided that that is not something that they are
       privy to, or we cannot tell them if this is a death penalty case or not,
       and then ask them the follow-up question. Basically, not knowing
       whether this is a death penalty case or not, does that cause you
       concern as to whether or not you could be a fair and/or impartial juror
       in this case.


Id. The trial judge was concerned about that approach:

       My preference would be not to ask the follow-up question, but just tell
       them that and then go on and then see if any ofthem raises the issue
       beyond that. But I don't know what you think about that.

              The problem is ifI invite them to say, you know, can you be
       fair and impartial, then anybody who for some reason or other
       couldn't like the idea of being here has a good way to head for the
       door.


Id. at 406-07. The question of how to deal with the death penalty was not

resolved that day.

       A few days later, during voir dire, prospective juror 56 said,"My

conscience is going to bother me all my life" if he voted to convict someone
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


who later proved to be innocent, especially if that person served a long

sentence. VTP (Sept. 23, 2015) at 798-99. After some probing by the court,

juror 56 said be did not believe be could be a fair juror on this case and was

dismissed for cause. That afternoon, the prosecutor "switcb[ed] gears" and

reminded the remaining panel members that "Juror Number 56 . . . realized

... the weight of being a juror was not something that be could deal with."

Id. at 824. The prosecutor emphasized that the jury's sole role was to decide

whether the State bad met its burden of proof and not to concern itself with

punishment. After the prosecutor asked the jurors if they "underst[oo]d

that," were "concem[ed] about that," or thought that "doesn't make sense,"

among similar questions, the following exchange occurred:

       (Juror Number 1)[:] Is there a death sentence thing in the state of
       Washington? That might bother me.
              MR.         I will let the judge answer that question.
              TPJE COURT: The Washington Supreme Court has said that I
       can't tell you whether a death sentence is involved or not.
       BY MR. YIP:
       Q. So our wise Washington Supreme Court has said that the judge
       cannot tell you whether or not this is a death penalty case or whether
       or not that is a potential outcome.
              And I will get to the cards that are being raised right now.
              So the ultimate question that I'm going to ask you is, with that
       in mind that the judge can't tell you and you won't know, does that
       cause you any concern about being a juror in this case where the
       charge is murder in the first degree?
              Juror Number 5.




 Wyman Yip represented the State at trial.
State V. Pierce, No. 96344-4(consolidated with State v. Bienhoff, No. 96345-2)


       A. So—and I know you can't tell us, but if that's a possibility at all,
       yes, I have concern with that. Because like we have said before,
       evidence can come out later. And if they are sentenced to death, I
       have an issue with that, because I don't—^not that I'm making the call
       of their punishment, but I don't want to find them guilty if that should
       be the case and then an irreversible decision has been made.
              As awful as it would be if they were later found out innocent
       and still in jail, that's not nearly as bad as if they had a death penalty.

Id. at 825-26.


       In the wake ofthis discussion,jurors 1, 5,6, 15, 20, 39, 76, 98, 116,

and 131 all expressed concems about sitting on a jury in a possible death

penalty case. Upon further questioning, most assured the court that they

could be fair. Juror 76, however, reported that the weight of sending

someone to a long prison sentence or death weighed so heavily on her that

she could not finish her lunch.


       Juror 6, apparently the only African-American potential juror in the

courtroom at that time, said,"I wouldn't want to be responsible for sending

somebody—^penalizing them to the death penalty, whether I knew

beforehand or not. I wouldn't feel comfortable also with sending someone

to jail for life." Id. at 827. The prosecutor stressed that the jurors do not

decide the sentence. Juror 6 acknowledged the point but observed,"[T]he

decision that we, as jurors, would make would be instrumental in deciding

the fate of another person, which I don't want that kind of responsibility on

my shoulders." Id. at 828. When asked directly if she could be fair,juror 6
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


said, "I can. I can." Id. Later, however,juror 6 said that without knowing

whether the death penalty was a possibility she "would not be able to make a

decision in this case." Id. at 833. The State moved to strike juror 6 for

cause.



         Outside the presence of the jury, defense counsel raised "a very, very

strenuous objection to the proceeding that we have, and I'm afraid I have to

ask for a mistrial." Id. at 838. Counsel was concerned that the State was


identifying jurors with "qualms about something that is completely

irrelevant in this case" and that it was attempting to "death-qualify" the

jury.^ Id. at 838-39. The prosecutor denied he was trying to death-qualify

the jury. The trial court found that the prosecutor had not done anything

"improper in any way. It's the juror that first brought up the death penalty."

Id. at 846. The State moved to dismiss jurors 6 and 76 for cause.

       Both juror 6 and juror 76 were brought back to be questioned

individually. The judge again stressed to juror 6,"I am not allowed to tell

you whether this is a capital case" and "the question of whether the death

penalty would be imposed is a separate proceeding at which there can be




^ '"[DJeath qualification' is the process whereby prospective jurors are asked about the
death penalty and excluded from the final panel if they oppose it." State v. Hughes, 106
Wn.2d 176, 180, 721 P.2d 902(1986). There is evidence that death-qualifying a jury
makes it more likely to convict.       /W. at 182-83. This evidence has been contested. Id.
State V. Pierce, No. 96344-4(consolidated with State v. Bienhoff, No. 96345-2)


additional evidence that would be determined by a jury that follows any trial

and any conviction." Id. at 871-72.

       When asked directly, given that the jury has nothing to do with

sentencing,"could [you] be a fair and impartial juror in this case?" Juror 6

replied:

       I would have to say no. I think that ifI had the opportunity before
       coming to look up those kinds of things, I would feel more
       comfortable making a decision like that. But without knowing what—
       knowing that—^not that my decision would have any basis on
       sentencing, but knowing it could have a basis on the outcome of
       somebody's life, it still—I think that that would haunt me to, in the
       back of my mind, know that without knowing.

Id. at 873. Juror 6 also expressed reservations about rendering a verdict that

could result in a life sentence. After some leading questions by defense

counsel, the juror clarified,"I think that my views can be fair, and I think

that they can be impartial. I am very hesitant about making a decision that

would weigh that heavily upon somebody's life, but I feel that I am capable

of making a fair and impartial decision." Id. at 878. The trial judge denied

the motion to dismiss juror 6 for cause. Juror 76 was dismissed for cause

based on her emotional reaction to the idea of sitting on a death penalty case.

       Voir dire resumed the next day with juror 6 still on the panel. After

several hours of questioning (in which juror 6 did not speak), the State

brought a peremptory challenge against her. The defense immediately raised
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


an unsuccessful Batson challenge that will be discussed in more detail

below. A jury was seated, and the case was tried over the next month.

       After closing arguments, the judge instructed the alternate jurors,

"Thank you very much for your careful attention to the case. It won't be

necessary for you to serve further. Please don't discuss the case with anyone

or indicate how you would have voted until the jury returns its verdict."

VTP (Oct. 29, 2015) at 3898. The remaining jurors were instructed:

              So, ladies and gentlemen, the case is now in your hands. If you
       will retire to the jury room, the bailiff will bring you the exhibits,
       though we'll probably do that on Monday because we're at the end of
       the day today, and I understand you're not coming in tomorrow, and
       then you will be able to commence your deliberations.

Id. That day was a Thursday. Perhaps because it was the end of the day and

the jurors were not going to be together for the next three days, the trial

judge did not tell them not to discuss the case until they were formally

seated on Monday.

       After the jurors had been let go for the night, the bailiff and counsel

saw one ofthe jurors,juror 5, having a lengthy conversation with an

observer in the courtroom.'^ That observer had been present when the

defendants were brought in, escorted by jail officers, and had been present

for several conversations that the jury was not. While the jury was seated in


 Some of the record reports this as juror 4, but this appears to be a mistake.
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


the jury room, but apparently before the jury was thought to have begun

deliberating, the defense moved to have juror 5 removed and replaced with

an alternate.


       That Friday, the trial judge asked all the jurors, including the

alternates, to come in on Monday. That Monday,juror 5 was brought into

the courtroom, separate from the other jurors, where she reported that the

observer was a friend who was interested in the case. Juror 5 had invited her

to observe closing arguments. The trial judge decided to excuse the juror

and seat an alternate. All the remaining jurors were brought in and an

alternate seated. The jurors were then sent back into the jury room and

instructed to "commence your deliberations." VTP (Nov. 2, 2015) at 3929.

       After two and a half days of deliberation, the jury found Bienhoff and

Pierce guilty of first degree murder. Bienhoff was sentenced to life without

parole as a persistent offender.

       The Court of Appeals concluded that the prosecutor committed

misconduct by eliciting a discussion of the death penalty and reversed.^

We granted the State's petitions for review and consolidated the cases. State

V. Pierce, 192 Wn.2d 1015 (2019). We also granted review of some of the


^ State V. Bienhoff, No. 74519-1-1, slip op. at 15 & n.33 (Wash. Ct. App. Aug. 27, 2018)
(unpublished), https://www.courts.wa.gov/opinions/pdf/745191orderandopinion.pdf;
State V. Pierce, No. 74363-5-1, slip op. at 13(Wash. Ct. App. Aug. 27, 2018)
(unpublished), https://www.courts.wa.gov/opinions/pdf/743635.pdf.


                                           10
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


issues raised in Pierce's answer relating to jury deliberation. Id. The

Washington Association ofProsecuting Attorneys(WAPA)submitted an

amicus brief arguing that Townsend should be overruled. The Fred T.

Korematsu Center for Law and Equity filed an amicus brief in support of the

defendants' argument that juror 6 was improperly dismissed.

                                      Analysis


       Bienhoff and Pierce challenge their convictions based on two

intertwined errors at voir dire;(1)that the State improperly elicited a

conversation about the death penalty and (2)that the State was improperly

allowed to exercise a peremptory challenge to dismiss an African-American

juror. We agree in part.

       The jurisprudential landscape has changed in two relevant ways since

this case was tried. First, at the time of trial, it was error to tell the potential

jurors during jury selection that they were not being asked to sit on a death

penalty case. Townsend, 142 Wn.2d at 846 (quoting Shannon, 512 U.S. at

579). In Townsend, we concluded that "[tjhis strict prohibition against

informing the jury of sentencing considerations ensures impartial juries and

prevents unfair influence on a jury's deliberations." Id. We rejected the

argument that informing the jury that a case did not involve the death

penalty could be a legitimate strategic tactic. Id. Our Townsend rule has



                                           11
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


come under criticism from many quarters. See State v. Rafay, 168 Wn. App.

734, 779, 285 P.3d 83 (2012)(finding that informing the jury panel that a

case did not involve the death penalty could be a legitimate strategic tactic,

"[i]n light ofthe highly publicized circumstances"); Br. of Amicus Curiae

WAPA at 4-20 (calling for us to overturn Townsend).

       Second, in the wake of increasing evidence that the Batson rule did

not adequately protect our jury selection process from (often unconscious)

racial bias, we promulgated GR 37. Under OR 37, if"an objective observer

could view race or ethnicity as a factor in the use of[a] peremptory

challenge, then the peremptory challenge must be denied." GR 37(e).

While GR 37 is prospective, this portion of the test applies to at least

pending cases where the error was preserved. See State v. Jefferson, 192

Wn.2d 225, 249, 429 P.3d 467(2018)(modifying Batson).

       While the prosecutor did not explicitly raise the death penalty during

voir dire, as a direct result of his questions,jurors 1, 5, 6, 15, 20, 39, 76, 98,

116, and 131 all expressed concerns about sitting on a jury in a possible

death penalty case. As a direct result of the prosecutor's questions, all ofthe

potential jurors' minds were drawn to the possible sentence. This could

have had an "unfair influence on a jury's deliberations" sufficient to violate

Townsend. 142 Wn.2d at 846. The State,joined by WAPA and Pierce, ask



                                           12
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


US to overrule Townsend. Bienhoff asks us to limit Townsend in such a way

to allow the defense to decide whether to inform the jurors whether a case

involves the death penalty.

       We will overrule prior precedent when "there has been 'a clear

showing that an established rule is incorrect and harmful'" or'"when the

legal underpinnings of our precedent have changed or disappeared

altogether.'" Deggs v. Asbestos Corp. Ltd., 186 Wn.2d 716, 727-28, 729,

381 P.3d 32(2016)(quoting In re Rights to Waters ofStranger Creek,11

Wn.2d 649,653,466 P.2d 508 (1970); W.G. Clark Constr. Co. v. Pac. Nw.

Reg'l Council ofCarpenters, 180 Wn.2d 54, 66, 322 P.3d 1207(2014)). We

find both standards are met here and overrule Townsend.


       A major basis ofthe Townsend rule has eroded dramatically: there is

currently no lawful death penalty statute in Washington State. State v.

Gregory, 192 Wn.2d 1,19,427 P.3d 621 (2018). As amicus WAPA notes,

continuing to follow Townsend in a "posX-Gregory world "has the potential to

undermine public confidence in the integrity of the judiciary" because it

would "foster mistrust in informed jurors" who know there is no death

penalty in our state. Br. of Amicus Curiae WAPA at 19. We agree.

       This case also demonstrates that Townsend was incorrect and harmful


even without Gregory. Townsend is incorrect because it fails to recognize



                                           13
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


that death is different. See Furman v. Georgia, 408 U.S. 238, 286,92 S. Ct.

2726, 33 L. Ed. 2d 346(1972)(Brennan, J., concurring). It does not

undermine the division of responsibility between the judge and jury to allow

prospective jurors to know whether they are on a death penalty case.

Overwhelmingly, other courts have approved of telling prospective jurors

when the death penalty is not at stake. See, e.g., State v. Matt, 187 Ariz.

536, 547, 931 P.2d 1046(1997)(quoting State v. Dawson, 162 Ariz. 429,

430, 783 P.2d 1221 (Ct. App. 1989)); Pugh v. State, 351 Ark. 5, 13, 89

S.W.3d 909(2002); People v. Hyde, 166 Gal. App. 3d 463, 479, 212 Gal.

Rptr. 440(1985)(informing the prospective jurors that the case was not a

death penalty case was "proper and prudent"); Stewart v. State, 254 Ga. 233,

234, 326 S.B.2d 763 (1985)(citing Waters v. State, 169 Ga. App. 290, 312

S.B.2d 812(1983)); Burgess v. State, 444N.B.2d 1193, 1196 (Ind. 1983)

("The possibility of the imposition of a death sentence can be an ever present

and secretly held concern of prospective jurors in a murder case and as such

might reasonably be expected to improperly influence the manner in which

they answer questions on voir dire."); State v. Wild, 266 Mont. 331, 337, 880

P.2d 840(1994)(citing Dawson, 162 Ariz, at 430); State ex rel. Schiffv.

Madrid, 101 N.M. 153, 156, 679 P.2d 821 (1984); Commonwealth v. Drexel,

349 Pa. Super. 335, 345, 503 A.2d 27(1986). Only Massachusetts seems to



                                           14
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


have held that it is error to instruct a jury when the death penalty is not at

issue. Commonwealth v. Smallwood, 379 Mass. 878, 883, 401 N.E.2d 802

(1980). The Massachusetts Supreme Judicial Court found that state's death

penalty unconstitutional later that year and again four years later. Dist. Att'y

for SuffolkDist. v. Watson, 381 Mass. 648, 411 N.E.2d 1274(1980);

Commonwealth v. Colon-Cruz, 393 Mass. 150, 163-64, 470 N.E.2d 116

(1984); see also Commonwealth v. Gunter, 427 Mass. 259, 270, 692 N.E.2d

515 (1998)(holding a judge's reference to the absence of a death penalty in

order to "remove extraneous considerations from interfering with the jury's

deliberation, did not amount to reversible error").

       Townsend is harmful because ofthe unnecessary pressure it puts on

potential jurors, as well as the distorting effect that pressure likely puts on

the selection process itself and on the ultimate makeup of the jury. Because

of Townsend, many more jurors must be summoned in homicide cases than

would otherwise be necessary to get a fair jury. It is common to summon

over 1,000 potential jurors in death penalty cases to arrive at a death-

qualified jury. Wash. State Bar Ass'n,Final Report of the Death

Penalty Subcommittee of the Committee on Public Defense 16




                                           15
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


(2006).^ The record does not reveal how many jurors were summoned in

this case, but at least 138 were present at voir dire. As this case

demonstrates, once the death penalty is raised during voir dire, many jurors

express the sort of discomfort with serving that requires their dismissal. As

this case also demonstrates, Townsend drastically increases the time required

for voir dire, as jurors are questioned about their ability to set their concerns

about the sentence aside, putting unnecessary burdens on the administration

ofjustice.

       Townsend is also harmful for the very reasons that undergird GR 37.

As WAPA cogently argues, death-qualifying juries disproportionally

exclude people of color. Br. of Amicus Curiae WAPA at 14 (quoting Noelle

Nasif, Shyam K. Sriram & Eric R.A.N. Smith, Racial Exclusion and Death

Penalty Juries: Can Death Penalty Juries Ever Be Representative?,27 Kan.

J.L. &PUB.Pol'y 147, 148 & n.15 (2018)(citing Eric P. Baumer et ah.

Explaining Spatial Variation in Supportfor Capital Punishment: A

Multilevel Analysis, 108 Am. J. Soc. 844, 853 (2003); Samuel R. Gross 8l

Phoebe C. Ellsworth, Hardening ofthe Attitudes: Americans' Views on the

Death Penalty, 50 J. Soc.ISSUES 19,21 (1994)). This research is consistent

with a recent Pew Research Center survey finding significant racial

^ https://www.wsba.org/docs/default-source/legal-community/committees/council-on-
public-defense/death-penalty-report.pdf?sfVrsn=120301fl_14


                                           16
State V. Pierce, No. 96344-4(consolidated with State v. Bienhoff, No. 96345-2)


disproportionality in support for the death penalty. J. Baxter Oliphant,

Public Supportfor the Death Penalty Ticks Up, PEW Res. Ctr.(June 11,

2018), https://www.pewresearch.org/fact-tank/2018/06/11/us-support-for-

death-penalty-ticks-up-2018/ [https://perma.cc/2TGH-BRR3]. Hewing to a

rule that has a disproportional effect of eliminating people of color

undermines our commitment to fostering juries that reflect our society. See

OR 37; Erickson, 188 Wn.2d at 723.

       This case vividly illustrates the harm caused by Townsend. The judge

and counsel tried hard to follow Townsend during voir dire, leading directly

to the State's attempt to dismiss juror 6 and the resulting Batson challenge.

As WAPA argues in this court, however, Townsend leads to death-

qualification and death-qualification has a racially disproportionate impact.

We therefore hold that exercising a peremptory challenge to remove a juror

who does not "qualify" under death-qualification questioning is a

presumptively invalid basis for exercising a peremptory challenge. As we

read the record, that is precisely what happened here. During the Batson

discussion, the State justified its attempt to excuse juror 6 on grounds that

violate Jefferson and OR 37. The State invoked the fact that juror 6 had a

brother who was convicted of attempted murder and that the process of

conviction and sentence "left a bad taste in her mouth." VTP (Sept. 24,



                                          17
State V. Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


2015) at 1019. These reasons for dismissal are presumptively invalid under

GR 37(h)(i)-(iii). The State noted that juror 6 "had strong opinions" that

"the system, or at least parts of the system, did not treat her brother fairly."

Id. This reason is presumptively invalid under GR 37(h)(ii) and (iii). The

State repeatedly stressed that juror 6 frequently paused before answering

questions, potentially violating GR 37(i). M at 1017-19. Juror 6's

dismissal violated GR 37(e)'s injunction that the challenge must be rejected

if"an objective observer could view race or ethnicity as a factor in the use of

the peremptory challenge." ^

                                     Conclusion


       We hold that Townsend is incorrect and harmful because it artificially

prohibits informing potential jurors whether they are being asked to sit on a

death penalty case. This case illustrates some of the ongoing harm

Townsend has caused because the cramped conversation about sentencing

consequences directly led to the improper dismissal of a juror. Accordingly,

we overrule Townsend. Because an objective observer could conclude that

race was a factor in the State's peremptory challenge to juror 6, we affirm



^ We respectfully disagree with our dissenting coiieagues that an objective observer could
not have viewed race as a factor in the use of the peremptory challenge. The dissent
transforms GR 37(e)'s mandate that a peremptory challenge must be denied when "an
objective observer could view race or ethnicity as a factor" into review of an unmade
appeal of the denial of the State's for-cause challenge.


                                           18
State V, Pierce, No. 96344-4 (consolidated with State v. Bienhoff, No. 96345-2)


the Court of Appeals in result and remand to the trial court for further

proceedings consistent with this opinion.




                                           19
Stale V. Pierce, No. 96344-4 (consolidated with State v. Bienhqff. No. 96345-2)




WE CONCUR:




                                           20
State V. Pierce (Karl)', State v. Bienhojf(Michael)
(Stephens, J., concurring)




                                    No. 96344-4
                             (consol. w/ No. 96345-2)



      STEPHENS, J. (concurring)—^Both the lead and dissenting opinions agree

that our decision in State v. Townsend,^ espouses an idea whose time has passed.

The difference between these opinions, as I read them,is that the dissent would only

refuse to apply Townsend prospectively, concluding its legal underpinnings have

disappeared in light of State v. Gregory? Dissent at 3-5. The lead opinion would

overrule Townsend entirely, not only because its legal moorings have collapsed, but

also because it has proved to be incorrect and harmful. Lead opinion at 13-17.

Neither the lead nor dissenting opinion, however, would reverse the defendants'

convictions based on the extensive death-qualification discussion that ensued during

voir dire.


      I would. For a variety of reasons, the voir dire in this case grew focused on

questions ofpunishment,including whether this case involved the death penalty. As


      ^ 142 Wn.2d 838, 15 P.3d 145 (2001).
      2 192 Wn.2d 1, 427 P.3d 621 (2018).
State V. Pierce (Karl); State v. Bienhoff(Michael), 96344-4(consol. w/No. 96345-2)
(Stephens, J., concurring)



the lead opinion observes, at least 10 jurors expressed concerns about deciding a

possible death penalty case. The questioning ofjuror 6 followed her statement that

she "wouldn't want to be responsible for sending somebody—^penalizing them to the

death penalty, whether I knew beforehand or not. I wouldn't feel comfortable also

with sending someone to jail for life." Verbatim Tr. ofProceedings(Sept. 23,2015)

at 827. Defense counsel timely objected to the entire area of questioning and moved

for a mistrial, but the trial court denied the motion. I believe this was error. It is not

necessary to pinpoint the source of the error to prosecutorial misconduct, as the

Court of Appeals did below. Things simply went awry, and it was incumbent on the

trial court to recognize the problem and its impact on fairly selecting a jury. The

court abused its discretion by denying a mistrial on the ground that a juror—^not the

State—first brought up the death penalty. It does not matter how the topic came up;

the situation resulted in incurable prejudice, largely due to everyone's attempt to

comply with the unfortunate rule in Townsend.

      I would resolve this case by overruling Townsend and holding that its

application in this case resulted in reversible error. That resolution focuses on the

error that is at the heart of this trial and makes it unnecessary to consider how to

apply the analysis ofGR 37 to this 2015 trial. On this basis,I concur in the judgment

reversing the defendants' convictions and remanding for further proceedings.


                                           -2-
State V. Pierce (Karl); State v. Bienhojf(Michael), 96344-4(consol. w/No. 96345-2)
(Stephens, J., concurring)




                                         -3-
State V. Pierce (Karl); State v, Bienhoff(Michael)




                                        No. 96344-4
                                 (consol. w/No. 96345-2)


       MADSEN,J.(dissenting)—The lead opinion overrules our decision in State v.

Townsend, 142 Wn.2d 838, 15 P.3d 145 (2001), and affirms the Court of Appeals'

reversal of defendants' convictions for first degree murder on the basis that the excusal of

two jurors was improper. I disagree on both points, and therefore, I dissent.

                                              I


       I agree, in part, with the Court of Appeals that the trial court properly advised the

venire in compliance with Townsend and State v. Hicks, 163 Wn.2d 477, 181 P.3d 831

(2008), which were controlling precedent at the time of the 2015 voir dire proceeding at

issue in this case. The Court of Appeals went on to hold, however, that the prosecutor

committed misconduct in his voir dire questioning of potential jurors because his

questions elicited comments from jurors about the death penalty. But, as the trial court

correctly noted, a juror, not the prosecutor, raised the death penalty issue by specifically

inquiring about death penalty availability in this murder trial. The trial court then

correctly advised jurors that it could not tell them if the death penalty was involved in the

case (in compliance with Townsend). The court further informed jurors that their role
No. 96344-4(consol. w/No. 96345-2)
Madsen, J., dissenting


was limited to determining guilt and that any sentencing was the court's responsibility (in

compliance -with Hicks). This was not error.

       In Townsend, we noted that "overwhelming authority" supports the notion that

"the jury in a noncapital case may not be informed about the penalty for the charged

crime." 142 Wn.2d at 846. "'[I]t is well established that when a jury has no sentencing

function, it should be admonished to reach its verdict without regard to what sentence

might be imposed.'" Id. (internal quotation marks omitted)(quoting                  v. United

States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459(1994))"'The question of

the sentence to be imposed by the court is never a proper issue for the jury's deliberation,

except in capital cases.'" Id.(quoting State v. Bowman, 57 Wn.2d 266,271,356 P.2d

999(I960)). This court opined,"This strict prohibition against informing the jury of

sentencing considerations ensures impartial juries and prevents unfair influence on a

jury's deliberations." Id. Accordingly, in Townsend this court adhered to "the long

standing rule that no mention may be made of sentencing in noncapital cases." Id. at 847.

       In Hicks, this court reiterated that "it is error to inform the jury during voir dire in

a noncapital case that the death penalty is not involved." 163 Wn.2d at 487 (citing

Townsend, 142 Wn.2d at 840). In Hicks, this court acknowledged that it had recently

"declined to recognize a distinction between a court or counsel-initiated and a juror-

initiated discussion of the inapplicability of the death penalty." Id.(citing State v. Mason,

160 Wn.2d 910, 929, 162 P.3d 396(2007)). Accordingly, this court concluded that
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


"under our precedent, in response to any mention of capital punishment, the trial judge

should state generally that the jury is not to consider sentencing." Id.

       That is what occurred here—ajuror brought up the issue of the death penalty, and

the trial court instructed the jury as to its proper role. There was no error under

Townsend and Hicks, the controlling precedent at that time.

       Turning to the lead opinion's disavowal of Townsend (joined by the concurrence),

I do not disagree that after our 2018 decision in State v. Gregory, 192 Wn.2d 1, 427 P.3d

621 (2018), Townsend's prohibition need not be prospectively applied. But prior to our

Gregory decision, Townsend was established precedent and was applicable to the 2015

proceedings at issue here. In my view, the lead opinion's compulsion to overrule

Townsend in the context of the present case is unwarranted and incorrect.

       As we stated in W.G. Clark Construction Co. v. Pacific Northwest Regional

Council ofCarpenters, agreeing with the First Circuit Court of Appeals,''"'stare decisis is

neither a straight)aeket nor an immutable rule; it leaves room for courts to balance their

respect for precedent against insights gleaned from new developments, and to make

informed judgments as to whether earlier decisions retain preclusive force.'" 180 Wn.2d

54, 66, 322 P.3d 1207(2014)(quoting Carpenters Local Union No. 26 v. U.S. Fid. &

Guar. Co., 215 F.3d 136, 142(1st Cir. 2000)). Accordingly,"we can reconsider our

precedent not only when it has been shown to be incorrect and harmful but also when the

legal underpinnings of our precedent have changed or disappeared altogether." Id.

"[SJtare decisis may yield when a precedent's 'underpinnings [have been] eroded.'" Id.
No. 96344-4(consol. w/No. 96345-2)
Madsen, J., dissenting


(second alteration in original)(quoting United States v. Gaudin, 515 U.S. 506, 521, 115

S. Ct. 2310, 132 L. Ed. 2d 444(1995)). "[RJeview of a precedent might be justified

when 'related principles oflaw have so far developed as to have left the old rule no more

than a remnant of abandoned doctrine.'" Id. at 66-67(quoting Planned Parenthood ofSe.

Pa. V. Casey, 505 U.S. 833, 854-55, 112 S. Ct. 2791, 120 L. Ed. 2d 674(1992)).

        This court recently applied this principle in Chong Yim v. City ofSeattle,

Wn.2d      ,451 P.3d 675 (2019). Therein, this court addressed the effects of changing

federal precedent regarding the parameters of regulatory takings jurisprudence, noting

that the legal underpinnings for our prior decision in Manufactured Housing

Communities of Washington v. State, 142 Wn.2d 347, 13 P.3d 183 (2000)(plurality

opinion), had disappeared. See Chong Yim, 451 P.3d at 687 n.2. Nevertheless, this court

assumed without deciding that Manufactured Housing was correct when it was decided.

Id. This court ultimately disavowed further application ofManufactured Housing's

definition of per se regulatory takings as nonreflective offederal law, which had

subsequently been clarified. Id. at 687-89. Notably, this court abandoned

Housing not because it was incorrect and harmful but because "'the legal underpinnings

of our precedent have changed or disappeared altogether.'" Id. at 688 (quoting W.G.

Clark, 180 Wn.2d at 66). In such circumstance, where the legal underpinnings have

dramatically changed, this court pointedly stated,"[W]e need not decide whether

{Manufactured Housing] is incorrect and harmful." Id. In my view, that is the correct

approach here.
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


        We need not decide whether our precedential decision in Townsend is incorrect

and harmful in light of the dramatic shift in legal underpinnings that have rendered

Townsend no longer germane. As noted, Townsend articulated a rule prohibiting telling

jurors that the ease for which they were being seated did not involve the death penalty.

That decision was correct when decided in 2001 and controlled the 2015 proceedings at

issue here.' But, in 2018, this court struck down Washington's death penalty as violative

of our state constitution. See Gregory, 192 Wn.2d at 19. Thus, Townsend'^ directive is

presently no longer of moment, not because it was incorrect when decided but because

the legal landscape that it addressed has recently dramatically shifted.^

                                                II


       As for the Court of Appeals' determination that the prosecutor's questions

amounted to misconduct, we need not decide that issue to resolve this case. The issue

here is whether the State's challenges to jurors 6 and 76 were properly granted. In my

view, they were. As the trial court noted, both jurors 6 and 76 indicated to the court that

they could not act as jurors in this case. In these circumstances, the State's for cause

challenge ofjuror 76 and its later peremptory challenge ofjuror 6 were properly granted.

       Here, during voir dire on the morning of September 23, 2015,juror 56 responded

to defendant Karl Pierce's counsel's questions, indicating that he could not be a juror



'For the reasons articulated here, I also disagree with the concurrence's view that Townsend
should be overruled in this case. See concurrence at 2.
^ I acknowledge that consistent with our 2018 decision in Gregory, if a potential juror now
inquires about the death penalty, a trial court may simply state that Washington currently has no
death penalty.
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


because he could not "make a decision which could have a long-term effect." Verbatim

Tr. ofProceedings(VTP)(Sept. 23, 2015) at 799. Defense counsel challenged juror 56

for cause, and following further questioning, the trial court excused juror 56 and then

excused the venire for lunch. When voir dire resumed, the prosecutor noted that juror 56

"is no longer with us because he realized that... the weight of being a juror was not

something that he could deal with." Id. at 824. The prosecutor asked if anyone else had

similar concerns. In response,juror 1 asked if Washington had a death penalty. The

prosecutor deferred to the trial judge, who stated, "I can't tell you whether a death

sentence is involved or not." Id. at 825-26. The prosecutor restated his question; "So the

ultimate question that I'm going to ask you is, with that in mind that the judge can't tell

you and you won't know, does that cause you any concern about being a juror in this case

where the charge is murder in the first degree?" Id. at 826. Juror 6 stated in part, "I

wouldn't feel comfortable for sending somebody to jail for life .... I don't want to be a

part of[that decision]." Id. at 827. "I don't want that kind of responsibility on my

shoulders." Id. at 828. The prosecutor acknowledged that "[bjeing a juror is a tough

job," but, he stated, "the question isn't whether you want to do it. The question is, can

you do it." Id. Juror 6 responded,"I can." Id.

       Later, following another juror's inquiry about whether one could do research on

one's own,juror 6 commented,"Without being able to research whether the death

penalty is on the table, that makes me—I would not be able to make a decision in this

case not knowing that." Id. at 833. The prosecutor clarified,"Are you saying that as it
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


stands ... not knowing whether or not that's even a possibility . . . you could not...

fairly deliberate in this case?" Id. Juror 6 responded,"Right," and the State moved to

strike juror 6 for cause, which the court indicated it was inclined to grant, but it deferred

the matter until later. Id. at 833-34.


       In the meantime, voir dire continued. Responding to another juror's question, the

trial court stated, "It's the Court's job to do the sentencing. But your job is to decide

guilty or not guilty. Whether the State has proven its case beyond a reasonable doubt."

Id. at 837. Juror 76, who the court later noted had been visibly upset and crying, stated,

"I think just sitting here, I didn't realize that—I don't know if I could make that decision

for people. I really get so nervous. I couldn't even eat what I brought for lunch. I can't

decide." Id. Later, in granting the State's for cause challenge ofjuror 76, the trial court

noted that "76 was upset before there ever was any discussion of a death penalty case.

She indicated she was upset at lunch, couldn't eat lunch, and we hadn't even talked about

this before lunch." Id. at 849.


       Meanwhile, concerning the State's for cause challenge ofjuror 6, defense counsel

for Michael Bienhoff requested and was granted further questioning ofjuror 6 to

rehabilitate her. Defense counsel asked,"[D]o you think you could be a fair and

impartial juror in this case?" Id. at 873. Juror 6 responded,"I would have to say no. . . .

[Kjnowing[my decision] could have a basis on the outcome of somebody's life, it still—

I think that that would haunt me." Id. Juror 6 explained that she would feel "extremely

conflicted . . . knowing that my decision could impact somebody being incarcerated for
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


life." Id. at 874. Juror 6 explained that making a decision "[t]hat could potentially

impact the rest of their lives . . . [is] not something I want to do at all. I just don't feel

comfortable. I just feel like that kind ofjudgment at this time isn't appropriate for me."

Id. at 875. Defense counsel pressed juror 6, stating,"[W]e need juries that are

representative of the diversity of the community." Id. at 876. Defense counsel asked,

"[I]t seems to me that you might be a very good juror. So that's why I am asking, do you

really think that you would [not be] able to be fair and impartial?" Id. at 877. Juror 6

stated, "I think that my views can be fair, and I think that they can be impartial. I am

very hesitant about making a decision that would weigh that heavily upon somebody's

life, but I feel that I am capable of making a fair and impartial decision." Id. at 878. The

prosecutor then asked juror 6 in clarification, "[Ejarlier ... I think you said, I can be fair

and impartial, but not knowing whether this carries a life sentence or whatever, I can't do

it. Am I characterizing that correctly?" /t/. at 880. To which juror 6 replied,"Right."

Id. The prosecutor then asked,"Do you still feel that way?" Id. To which juror 6

answered,"I feel like that's something that I am not in position to judge on, yes. I don't

feel that that's my place, without having more information about what the implications of

that are." Id. The trial court interjected, stating,"The issue obviously is whether you can

do your job as a juror or not. And that's what we are trying to determine, because before

the break, it sounded like you were saying that you couldn't, and that's what we are

trying to figure out. It's can you—under those circumstances, can you do the job of a

juror, which is to decide has the State proven its case beyond a reasonable doubt or not."



                                                8
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


Id. at 881. Juror 6 responded,"I don't know if there is any way that I can even answer

that. I don't know how to answer it. I really don't. I don't know ... I am not sure." Id.

The trial court then denied the State's for cause challenge ofjuror 6, stating,"I don't

think that we have got a clear statement from the juror that she can't do the job." Id. at

882.


       Later, the State exercised a peremptory challenge to juror 6. Bienhoffs defense

counsel raised o.BatsorP' challenge, stating,"[Bjecause [juror 6] is the only African-

American in the jury box at this point, at least on its face, it looks as if it may be a

racially based challenge." VTP (Sept. 24, 2015) at 1014. The State responded,

explaining that "the overriding reason is the Court [initially] granted a 'for cause'

challenge for number 6, because Juror Number 6 specifically said that she couldn't do the

job. . . . She wasn't rehabilitated. She said she couldn't do the job." Id. at 1016-17. The

State noted that even when the trial court "asked her ultimately, can you do it, she didn't

say,'Yes.' She paused for a long time and said, T don't know.' And because of that. . .

the Court changed its mind and didn't allow her to be stricken for cause .... The State

still believes that she should be stricken for cause. But that, in and of itself, is a very

strong reason why the State is exercising its peremptory challenge on Juror Number 6. It


^ Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,90 L. Ed. 2d 69 (1986). As we noted in
Hicks, Batson outlines a three-part process to determine whether a prosecutor has excluded a
juror based on race. First, the challenger must make out a prima facie case of purposeful
discrimination by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose. Second,(if the prima facie case is met)the burden shifts to the State to
come forward with a neutral explanation for challenging the juror. And third, the trial court then
has the duty to determine if the defendant has established purposeful discrimination. See Hicks,
163 Wn.2d at 489 (discussing Batson).
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


has nothing to do with her race. . . . [S]he specifically cannot assure us that she can

actually deliberate and do her job." Id. at 1017-18. The trial court then ruled,"I will

allow the State to exercise its peremptory in that fashion. I find that it's not a violation of

[Batson\. The State clearly has nondiscriminatory reasons for exercising its peremptory

challenge against Juror Number 6." Id. at 1020. I agree with that determination; there

was no error here.


       The lead opinion applies GR 37 and this court's recent decision in State v.

Jefferson, 192 Wn.2d 225,429 P.3d 467(2018), in reaching the opposite conclusion. But

neither GR 37 nor the Jefferson decision existed prior to 2018, and in my view, for that

reason alone, neither applies to the 2015 proceeding at issue here.

       Further, even if this court were to rely on GR 37 and Jefferson in this case (and I

maintain that they do not apply), I disagree with the lead opinion's conclusion that "an

objective observer could conclude that race was a factor in the State's peremptory

challenge to juror 6." Lead opinion at 18-19. Any objective observer could so conclude

only if she ignored the facts of this case, which include juror 6's statements as described

above. In my view, based on this record, no reasonable person informed by the record

could conclude that race played any part in the State's peremptory challenge, which, as

discussed above, followed and was based on the State's for cause challenge ofjuror 6.

The trial court recognized as much in rejecting the Batson challenge and granting the

State's peremptory challenge ofjuror 6. In so doing, the trial court, which is charged

with weighing the circumstances and determining whether the challenge was improperly



                                              10
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting


motivated, see Batson, 476 U.S. at 97, properly fulfilled its function.'^ There was no error

here.^

         For the reasons noted, and because the State's for cause challenge ofjuror 76 and

its peremptory challenge ofjuror 6 were properly granted, I would reverse the Court of
Appeals, thereby reinstating the defendants' convictions. Accordingly, I dissent.




^ The lead opinion would hold that "exercising a peremptory challenge to remove a juror who
does not 'qualify' under death-qualification questioning is a presumptively invalid basis for
exercising a peremptory challenge." Lead opinion at 17. As discussed herein, that is not what
happened here. As is clear from a fair reading of the record,juror 6 was not "death qualified";
she was challenged for cause and then peremptorily challenged and ultimately excused because
she indicated that she did not want the awesome responsibility ofjudging someone charged with
a serious crime. I agree with the trial court that under this record, the peremptory challenge of
juror 6 was not improper.
^ The concurrence would altematively hold that the trial court abused its discretion by denying
defense counsels' motion for a mistrial. The concurrence opined,"It does not matter how the
topic [(i.e., mention of the death penalty)] came up; the situation resulted in ineurable prejudice,
largely due to everyone's attempt to comply with the unfortunate rule in Townsend"
Concurrence at 2. I disagree. As discussed herein, the trial court appropriately informed the
venire as to the jury's proper role in compliance with Hicks and Townsend, which were
controlling precedent at the time. '"A court abuses its discretion only if no reasonable person
would take the view adopted by the trial court.'" State v. Goss, 186 Wn.2d 372, 383, 378 P.3d
154(2016)(internal quotation marks omitted)(quoting State v. Wooten, 178 Wn.2d 890, 897,
312 P.3d 41 (2013)). Acting in compliance with Hicks and Townsend, there was no abuse of
discretion and no basis for granting a mistrial.
         Further, the concurrence's statement that "the situation resulted in incurable prejudice" is
no more than a bald assertion. Concurrence at 2. The concurrence fails to identify any such
prejudice. As explained herein, the State successfully challenged two potential jurors, one for
eause and the other peremptorily, but both challenges were based on the potential jurors'
acknowledged inability to act as jurors. See VTP (Sept. 23, 2015) at 849, 858, 885 (excusal of
juror 76); VTP (Sept. 24, 2015) at 1014, 1016-18, 1020 (excusal ofjuror 6). Excusing these
potential jurors was proper. This record does not demonstrate any prejudice to defendant
regarding jury selection. Accordingly, the trial court did not err in denying the defense motion
for a mistrial.

                                                   11
No. 96344-4 (consol. w/No. 96345-2)
Madsen, J., dissenting




                                           (i4J^ j^




                                      12
