       Fl L E
       IN CLERKS OFFICE
SUPREME COURT, STATE OF WASHINGTON
                  AUG 01 2013


                              UPREME COURT OF THE STATE OF WASHINGTON


    STATE OF WASHINGTON,                                   )
                                                           )
                      Respondent,                          )                  No. 86257-5
                                                           )
             v.                                            )                    En Bane
                                                           )
    KIRK RICARDO SAINTCALLE,                               )
                                                           )        Filed         AUG 0 1 2013
                      Petitioner.                          )
                                                           )


             WIGGINS,          J.-This   appeal   raises       important    questions   about    race

    discrimination in our criminal justice system.                Kirk Saintcalle, a black man,

    challenges his conviction for first degree felony murder because the State used a

    peremptory challenge to strike the only black venireperson in his jury pool.

    Saintcalle claims the peremptory strike was clearly racially motivated in violation

    of the equal protection guaranty enshrined in Batson v. Kentucky, 476 U.S. 79,

    106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We disagree. Batson requires a finding

    of purposeful discrimination, and the trial court's finding that there was no

    purposeful discrimination here is not clearly erroneous.                 Accordingly, we affirm

    Saintcalle's conviction.

             However, we also take this opportunity to examine whether our Batson

    procedures are robust enough to effectively combat race discrimination in the

    selection of juries. We conclude that they are not. Twenty-six years after Batson,



                                                    1
  .
No. 86257-5

a growing body of evidence shows that racial discrimination remains rampant in

jury selection.    In part, this is because Batson recognizes only "purposeful

discrimination,"   whereas    racism   is       often   unintentional,   institutional,   or

unconscious. We conclude that our Batson procedures must change and that we

must   strengthen    Batson   to   recognize       these   more    prevalent    forms     of

discrimination.

       But we will not create a new standard in this case because the issue has

not been raised, briefed, or argued, and indeed, the parties are not seeking to

advance a new standard. Applying Batson, we affirm the Court of Appeals.

                                       FACTS

       Kirk Saintcalle was convicted of one count of first degree felony murder and

three counts of second degree assault, all with firearm enhancements. Saintcalle

was accused of entering an apartment in the city of Auburn with two companions,

holding three people at gunpoint, and shooting and killing Anthony Johnson.

Saintcalle was sentenced to 579 months in prison.

       During jury selection at Saintcalle's trial, the prosecution used a peremptory

challenge to strike the only black juror in the venire, juror 34, Anna Tolson. This

challenge came after the prosecution questioned juror 34 extensively during voir

dire-far more extensively than any other juror. Indeed, most of the prosecution's

interactions with jurors were quite brief, usually consisting of only a few short

questions, but not the interaction with juror 34. The State began questioning juror

34 after another juror made a comment about race:




                                            2
No. 86257-5

            [JUROR 72]: I feel there are some areas of unfairness in our
      system. I am aware, for example, that a jury of their peers [sic], yet as
      you look around this panel, all of the faces are white.

              [JUROR 34]: No, not quite.

              (Laughter.)

             [PROSECUTOR]: You know what, you kind of bring a very
      important topic to light. If you were seated here in this chair and you
      looked out at this panel, would you have any concern about whether or
      not people are going to be able to relate to you or listen to you or feel
      for you? Juror number-What is your number? Juror number 34, I am
      going to ask you a little bit about your background. You work at the
      YMCA?

              [JUROR 34]: I work in a middle school.

           [PROSECUTOR]: So tell me how that works.             So you are a
      counselor?

              [JUROR 34]: Yes.

              [PROSECUTOR]: Which means you see a whole lot.

              [JUROR 34]: Yes.

             [PROSECUTOR]: And where do you work? What school do you
      work in?

              [JUROR 34]: Do I really need to say that?

             [PROSECUTOR]: How about you just tell me the city.         Is it an
      inner city school?

              [JUROR 34]: Yes.

              [PROSECUTOR]: You see a whole lot?

              [JUROR 34]: Yes.

            [PROSECUTOR]: I am interested to hear from you-1 mean, do
      you have impressions about the criminal justice system?

              [JUROR 34]: Yes.

             [PROSECUTOR]: You are not going to hurt my feelings if you
      talk about them a little bit. What are your thoughts?



                                           3
No. 86257-5

              [JUROR 34]: Gosh, I feel like I am on the spot here.

              But being a person of color, I have a lot of thoughts about the
      criminal system. I see-1 have seen firsthand-and a couple people
      have already mentioned that if you have money, you tend to seem to
      work the system and get over. And regardless if you are innocent or
      guilty, if you want to be innocent, your money says you are innocent.

            And a person of color, even if you do have an affluent lawyer
      who has the background, the finance to get you off, because you are a
      person of color, a lot of times you are not going to get that same kind of
      opportunities.

             And especially with this person being a person of color and being
      a male, I am concerned about, you know, the different stereotypes.
      Even if we haven't heard anything about this case, we watch the news
      every night. We see how people of color, especially young men, are
      portrayed in the news. We never hardly ever see anyone of color doing
      something positive, doing something good in their community.

             So kind of like what the person behind me is saying, since most
      of the people in this room are white, I am wondering what's running
      through their mind as they see this young man sitting up here.

             [PROSECUTOR]: Right. How about for you, do you think-1
      mean, you've got a whole lot that you are feeling as you sit here and
      that you are going to be asked to sit in judgment of somebody. How do
      you think you are going to be able to handle that?

              [JUROR 34]: I think number one, because I am a Christian, I
      know I can listen to the facts and, you know, follow the judge's
      instruction. But also it's kind of hard, and I haven't mentioned this
      before because none of those questions have come up for me to
      answer, but I lost a friend two weeks ago to a murder, so it's kind of
      difficult sitting here. Even though I don't know the facts of this
      particular case, and I would like to think that I can be fair because I am
      a Christian, I did lose someone two weeks ago.

              [PROSECUTOR]: Was that in Seattle?

              [JUROR 34]: Yes.

              [PROSECUTOR]: Was that [the] Tyrone case?

              [JUROR 34]: Yes.




                                          4
No. 86257-5

Report of Proceedings (RP) (Mar. 9, 2009) at 65-68. After a stretch break, the

prosecutor resumed questioning juror 34:

            [PROSECUTOR]: Juror number 34, I am going to move on to the
      group, but I wanted to close the loop with you. You have a lot that is
      going through your mind currently both that would give you a lot of
      empathy for someone who is charged with a crime and also empathy
      for someone who may be a victim of a crime. In that way, you may be
      representative of the perfect juror.

             At the same time, we don't put people in a position where it's
      going to cause them a lot of emotional pain. At this point do you think
      you could sit in this case and listen to the facts and make a decision
      based solely on the evidence presented in trial here and be fair to both
      sides?

              [JUROR 34]: I'd like to think that I could be, but kind of what you
      just mentioned just with the freshness and the rawness of the death of
      a friend, I am wondering if that would kind of go through my mind. I like
      to think that I am fair and can listen, be impartial, but I don't know. I
      have never been on a murder trial and have just lost a friend two weeks
      prior to a murder.

             [PROSECUTOR]: What I am going to do, I am going to ask
      questions. I am going to kind of move on to the rest of the group so
      that you have time to think, and then we'll come back and ask you
      maybe tomorrow to make your final decision about whether or not you
      think you can be fair. I am sorry for your loss.

/d. at 69-70. The next day, a different deputy prosecuting attorney followed

up with juror 34:

              [PROSECUTOR]: Go back to [a] couple [of] people juror number
      34 sorry [to] focus on you again after yesterday but I just want to try
      and go back [and] touch base with you. I know[] you mentioned
      yesterday that you had some recent events in your life that may make it
      difficult for you to serve as jurors [sic] in [this case]. Have you done
      anymore thinking about that? How are you feeling today?

             [JUROR 34]: Yes. I thought about it last night as well as this
      morning. And, you know, my thought is I don't want to be a part of this
      jury because of the situations, and the circumstances that I just went
      through. But I'm thinking if ever I was put in a situation where I needed
      twelve people who could be honest and look through all the facts or I


                                         5
No. 86257-5

      guess I'm saying who could be like me I would want me.                   So
      sometimes you have to do things that you don't want to do.

             [PROSECUTOR]: I guess my only concern is do you feel like
      maybe some of the emotions that dredge up could cloud your judgment
      at all on either side. Either you know against the defendant, against
      the State or I'm just concerned about that particular issue?

            [Court inquires whether juror 34 would like to answer the
      question in private, but juror 34 declines.]

            [PROSECUTOR]: So is that something you can set aside or
      worried at all about the emotions kind of clouding in? I mean, it's just
      so new in terms of your life?

             [JUROR 34]: I mean, I have never been in this situation where I
      have lost someone. You just went to the funeral. He is young. Only
      24. And to be called to jury duty to perhaps be on a jury of a murder
      suspect. I don't know how I'm going to react. You know, I don't know.
      I'm-I'm not an emotional person, but I'm thinking as we go through it,
      and I hear the testimony, and I see the pictures, I don't know. I mean,
      I'm just being honest. I don't know how I'm going to feel.

RP (Mar. 10, 2009) at 41-43.

      After this exchange, the prosecution challenged juror 34 for cause. The

judge denied the challenge, and the prosecution announced its intent to exercise

a peremptory strike. At that point, Saintcalle raised a Batson challenge.

      As required by Batson, the judge first found that Saintcalle had made a

prima facie showing of purposeful discrimination.            Next, the prosecution

presented race-neutral reasons for striking juror 34: the reasons were (1) juror

34's "inattention" during voir dire and (2) the recent death of juror 34's friend. /d.

at 101-02. The prosecutor claimed to have spent "a lot of time watching juror 34"

and asserted that juror 34 was "very checked out." /d. at 101.

      The judge denied the Batson challenge, stating on the record that he

accepted the recent death of juror 34's friend as a proper race-neutral reason for


                                          6
No. 86257-5

the strike.   Near the end of jury selection, the prosecution peremptorily struck

juror 34, excusing her from the jury.

       The prosecution also attempted to exercise a peremptory against the sole

Mexican-American juror in the venire, juror 10, but the judge sustained

Saintcalle's Batson challenge to that strike, rejecting each of the prosecutor's

proffered reasons as pretextual. /d. at 119-20.

       After Saintcalle was convicted, he appealed, alleging that the peremptory

strike of juror 34 (Ms. Tolson) violated the Fourteenth Amendment's guaranty of

equal protection. The Court of Appeals rejected his argument finding there was

no purposeful discrimination and accepting the State's race-neutral explanation.

State v. Saintcalle, noted at 162 Wn. App. 1028, 2011 WL 2520000 (2011 ). We

granted review only on the Batson issue. State v. Saintcal/e, 172 Wn.2d 1020,

268 P.3d 224 (2011 ).

                              STANDARD OF REVIEW

       We review Batson challenges for clear error, deferring to the trial court to

the extent that its rulings are factual. State v. Hicks, 163 Wn.2d 477, 486, 181

P.3d 831 (2008) (citing State v. Luvene, 127 Wn.2d 690, 699, 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 ))). Clear error exists when the court is left with a definite and

firm conviction that a mistake has been committed.             E.g., Ass'n of Rural

Residents v. Kitsap County, 141 Wn.2d 185, 196, 4 P.3d 115 (2000).




                                          7
No. 86257-5

                                     ANALYSIS

      Race discrimination in courtrooms "raises serious questions as to the

fairness of the proceedings conducted there."       Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 628, 111          S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

Discrimination "mars the integrity of the judicial system and prevents the idea of a

democratic government from becoming a reality." /d.

      It is crucial that we have meaningful and effective procedures for identifying

racially motivated juror challenges because "[r]acial discrimination in selection of

jurors harms not only the accused whose life or liberty they are summoned to try";

it also shamefully belittles minority jurors who report to serve their civic duty only

to be turned away on account of their race.       Batson, 476 U.S. at 87. Perhaps

most damaging, racial discrimination "undermine[s] public confidence in the

                                      1
fairness of our system of justice."       /d. at 87-88.   Racial discrimination in the

qualification or selection of jurors offends the dignity of persons and the integrity

of the courts, and permitting such exclusion in an official forum compounds the

racial insult inherent in judging a citizen by the color of his or her skin.

Edmonson, 500 U.S at 628.



1
  A recent report by Washington's Race and Equal Justice Task Force notes that "'bias
pervades the entire legal system in general and hence [minorities] do not trust the court
system to resolve their disputes or administer justice even-handedly."'
TASK FORCE ON RACE AND THE CRIMINAL JUSTICE SYSTEM, PRELIMINARY REPORT ON.RACE
AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM at 6 (2011) (alteration in original),
available at http://www.law.washington.edu/About!RaceTaskForce/preliminary_report_
race_criminaljustice_030111.pdf (quoting WASH. ST. MINORITY & JUSTICE COMM'N, 1990
FINAL REPORT at xxi (1990), available at http://www.courts.wa.gov/committee/pdf/
TaskForce. pdf).




                                            8
No. 86257-5

      Batson sets forth a three-part analysis for determining whether a

peremptory strike unconstitutionally discriminates based on race.               First, the

person challenging the peremptory 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." 2         Batson, 476 U.S. at 93-94.

Second, "the burden shifts to the State to come forward with a [race-]neutral

explanation" for the challenge. /d. at 97. Third, "the trial court then [has] the duty

to determine if the defendant has established purposeful discrimination." /d. at

98.   If the trial court finds purposeful discrimination, the challenge should be

granted and the peremptory strike disallowed.

      As part of the "purposeful discrimination" analysis, the Supreme Court has

established a comparative juror analysis.         This entails examining whether the

proffered race-neutral explanation could apply just as well to a nonminority juror

who was allowed to serve.        Mil/er-E/ v. Dretke, 545 U.S. 231, 241, 125 S. Ct.

2317, 162 L. Ed. 2d 196 (2005).          A corollary is that disparate questioning of

minority jurors can provide evidence of discriminatory purpose because it creates

an appearance that an attorney is "fishing" for a race-neutral reason to exercise a


2
  The State argued for the first time in its supplemental brief that we should repudiate the
bright line rule approved by a majority of this court that "a defendant establishes a prima
facie case of discrimination when ... the record shows that the State exercised a
peremptory challenge against the sole remaining venire member of the defendant's
constitutionally cognizable racial group." State v. Rhone, 168 Wn.2d 645, 659, 229 P.3d
752 (201 0) (Alexander, J., dissenting) Rhone was a split decision, with a four-justice
lead opinion rejecting the proposed bright line rule, a four-justice dissent supporting it,
and Chief Justice Madsen concurring stating that "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). We grant Saintcalle's motion to strike the issue because
any statement about the Rhone bright line rule would be dictum in this case and because
the State failed to raise the issue in a timely manner. RAP 13.4(d).


                                             9
No. 86257-5

strike. /d. at 244-45; Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). We

do not allow prosecutors to go fishing for race-neutral reasons and then hide

behind the legitimate reasons they do find.          This disproportionately affects

minorities.

       Similarly, a proffer of pretextual reasons gives rise to an inference of race

discrimination, and a court's finding of discrimination against one juror is evidence

of discrimination against other jurors.    Snyder v. Louisiana, 552 U.S. 472, 485,

478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008).

       I.      Batson in context

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

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

guaranty of equal protection. See Strauder v. West Virginia, 100 U.S. (1 0 Otto)

303, 309-10, 25 L. Ed. 664 (1879). But to contextualize Batson we must look to

its origins.

       Two decades before Batson, the United States Supreme Court held in

Swain v. Alabama that purposeful discrimination in the use of peremptory

challenges violates the equal protection clause. 380 U.S. 202, 223-24, 85 S. Ct.

824, 13 L. Ed. 2d 759 (1965), overruled by Batson, 476 U.S. 79. Under Swain, a

single act of racism was not sufficient to make out an equal protection claim; a

person alleging race discrimination had to prove a long-running pattern of

purposefully discriminatory acts. /d. at 221-22.

        Swain did little to curb racial discrimination, establishing a "crippling burden

of proof" and leaving peremptories "largely immune from constitutional scrutiny."



                                           10
No. 86257-5

Batson, 476 U.S. at 92-93.         Batson reexamined Swain in light of this reality,

rejecting Swain's "crippling burden" and establishing the now-familiar three-part

test for scrutinizing peremptories. /d. at 92-93, 97-98.

         Twenty-six years later it is evident that Batson, like Swain before it, is failing

us.   Mil/er-E/, 545 U.S. at 270 (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."). A growing body of evidence shows

that Batson has done very little to make juries more diverse or prevent

prosecutors from exercising race-based challenges.              Justice Breyer explains,

concurring in Mil/er-E/ and citing a laundry list of sources concluding the same

thing:

                Given the inevitably clumsy fit between any objectively
         measurable standard and the subjective decisionmaking at issue, I am
         not surprised to find studies and anecdotal reports suggesting that,
         despite Batson, the discriminatory use of peremptory challenges
         remains a problem. See, e.g., [David C.] Baldus, [George] Woodworth,
         [David] Zuckerman, [Neil Alan] Weiner, & [Barbara] Broffitt, The Use of
         Peremptory Challenges in Capital Murder Trials: A Legal and Empirical
         Analysis, 3 U. PA. J. CONST. L. 3, 52-53, 73, n. 197 (2001) (in 317
         capital trials in Philadelphia between 1981 and 1997, prosecutors
         struck 51% of black jurors and 26% of non black jurors; defense
         counsel struck 26% of black jurors and 54% of nonblack jurors; and
         race-based uses of prosecutorial peremptories declined by only 2%
         after Batson); [Mary R.] Rose, The Peremptory Challenge Accused of
         Race or Gender Discrimination? Some Data from One County, 23 LAW
         AND HUMAN BEHAVIOR 695, 698-699 (1999) (in one North Carolina
         county, 71% of excused black jurors were removed by the prosecution;
         81% of excused white jurors were removed by the defense); [Neely]
         Tucker, In Moore's Trials, Excluded Jurors Fit Racial Pattern,
         WASHINGTON POST, Apr. 2, 2001, p. A1 (in D.C. murder case spanning
         four trials, prosecutors excused 41 blacks or other minorities and 6
         whites; defense counsel struck 29 whites and 13 black venire
         members); [George E.] Mize, A Legal Discrimination; Juries Aren't
         Supposed to be Picked on the Basis of Race and Sex, But It Happens
         All the Time, WASHINGTON POST, Oct. 8, 2000, p. B8 (authored by judge


                                              11
No. 86257-5

      on the D.C. Superior Court); see also [Kenneth J.] Melilli, Batson in
      Practice: What We Have Learned About Batson and Peremptory
      Challenges, 71 NOTRE DAME L. REV. 447, 462-464 (1996) (finding
      Batson challenges' success rates lower where peremptories were used
      to strike black, rather than white, potential jurors); [Jeffrey S.] Brand,
       The Supreme Court, Equal Protection and Jury Selection: Denying
       That Race Still Matters, 1994 WIS. L. REV. 511, 583-589 (examining
      judicial decisions and concluding that few Batson challenges succeed);
      [Eric N. Einhorn] Note, Batson v. Kentucky and J.E.B. v. Alabama ex
      ref. T.B.: Is the Peremptory Challenge Still Preeminent? 36 BosTON
      COLLEGE L. REV. 161, 189, and n. 303 (1994) (same); [Jean] Montoya,
       The Future of the Post-Batson Peremptory Challenge: Voir Dire by
       Questionnaire and the "Blind" Peremptory, 29 U. MICH. J.L. REFORM
      981, 1006, nn. 126-127, 1035 (1996) (reporting attorneys' views on the
      difficulty of proving Batson claims).

545 U.S. at 268-69. A recent report by the Equal Justice Initiative reaches the

same dire conclusion:     peremptory challenges have become a cloak for race

discrimination. EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY

SELECTION: A CONTINUING LEGACY (hereinafter EQUAL JUSTICE INITIATIVE REPORT)

(Aug. 201 0), available at http://eji.org/ejilfiles/EJI%20Race%20and%20Jury%

20Report.pdf.

      It would be na'lve to assume Washington is somehow immune from this

nationwide problem.     Our Race and Equal Justice Task Force concluded that

"[t]he fact of racial and ethnic disproportionality in [Washington's] criminal justice

system is indisputable." TASK FORCE ON RACE AND THE CRIMINAL JUSTICE SYSTEM,

PRELIMINARY REPORT ON RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM

(hereinafter TASK FORCE REPORT) at 1 (2011 ), available at http://www.law.

washington.edu/About/RaceTaskForce/preliminary_report_race_criminaljustice_

030111.pdf.




                                          12
No. 86257-5

      In over 40 cases since Batson, Washington appellate courts have never

reversed a conviction based on a trial court's erroneous denial of a Batson

challenge.    See Suppl. Br. of Pet'r at 2, App. A (collecting cases).    Saintcalle's

brief cites 42 Washington Batson cases, all of which affirm a trial court's denial of

a Batson challenge.      Of those 42 cases, 28 involve the prosecution removing

every prospective juror of the same race as the defendant-usually one or two

black jurors. In only six of these cases were minority jurors permitted to serve,

and in eight it is unclear from the record whether minorities were permitted to

serve or not. This is rather shocking and underscores the substantial discretion

that is afforded to trial courts under Batson. And while this alone does not prove

that Batson is failing, it is highly suggestive in light of all the other evidence that

race discrimination persists in the exercise of peremptories.

       In short, Batson, like Swain before it, appears to have created a "crippling

burden" making it very difficult for defendants to prove discrimination even where

it almost certainly exists.

       II.     The changing face of race discrimination

       In part, the problem is that racism itself has changed.      It is now socially

unacceptable to be overtly racist. Yet we all live our lives with stereotypes that

are ingrained and often unconscious, implicit biases that endure despite our best

efforts to eliminate them. 3 Racism now lives not in the open but beneath the


3
  "The general findings, confirmed by hundreds of articles in peer-reviewed scientific
journals are that '[i]mplicit biases-by which we mean implicit attitudes and
stereotypes-are both pervasive (most individuals show evidence of some biases), and
large in magnitude, statistically speaking. In other words, we are not, on average or
generally, cognitively colorblind."' TASK FoRCE REPORT, supra, at 19 (alteration in


                                          13
No. 86257-5

surface-in our institutions and our subconscious thought processes-because

we suppress it and because we create it anew through cognitive processes that

have nothing to do with racial animus.

       Many scholars have written on the topic of unconscious prejudice and

implicit bias. 4   In one representative article, Antony Page, Batson's Blind-Spot:

Unconscious Stereotyping and The Peremptory Challenge, 85 B. U. L. REV. 155

(2005), the author explains how unconscious biases are formed, why they persist,

and how they affect our decisionmaking:

             In the late 1970s, ... as part of the "cognitive revolution,"
       psychologists began to explore the notion that discrimination and other
       forms of biased intergroup judgment may result from ordinary, routine
       and completely normal cognitive mental processes. The results of this
       research suggest that a basic way in which people try to understand
       their world-categorization-can, of its own accord, lead to
       stereotyping and discrimination.


/d. at 181 (footnotes omitted). Explaining how race discrimination results from

ordinary cognitive processes, he notes that '"[t]he human mind must think with the

aid of categories .... We cannot possibly avoid this process .... Life is just too

short to have differentiated concepts about everything."'        /d. at 185 (quoting

GORDON W. ALLPORT, THE NATURE OF PREJUDICE 20, 173 (1954) (alterations in


original) (quoting Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit
Bias and the Law, 58 UCLA L. REV. 465, 471 (201 0)).
4
 See, e.g., Eva Paterson, Kimberly Thomas Rapp, & Sara Jackson, The ld, The Ego,
and Equal Protection in the 21st Century: Building upon Charles Lawrence's Vision To
Mount a Contemporary Challenge to the Intent Doctrine, 40 CONN. L. REV. 1175 (2008);
GORDON W. ALLPORT, THE NATURE OF PREJUDICE 20, 173 (1954); HOWARD J. EHRLICH, THE
SOCIAL PSYCHOLOGY OF PREJUDICE 35 (1973); see Felicia Pratto & Oliver P. John,
Automatic Vigilance: The Attention-Grabbing Power of Negative Social Information, 61 J.
PERSONALITY & Soc. PSYCHOL. 380, 381 (1991 ).



                                          14
No. 86257-5

original)). So we use schemas, 5 categories, and cognitive shortcuts that lead us

to unknowingly discriminate: 6

            Once stereotypes have formed, they affect us even when we are
      aware of them and reject them. Stereotypes can greatly influence the
      way we perceive, store, use, and remember information.
      Discrimination, understood as biased decision-making, then flows from
      the resulting distorted or unobjective information. The attorney
      exercising the peremptory challenge will be unaware of this biased
      information processing and so will be unaware of her gender- or race-
      based discrimination ....

              To put it simply, good people often discriminate, and they often
       discriminate without being aware of it.

/d. at 160-61 (footnotes omitted). Compounding this problem is that stereotyping

is often part of our so-called "social heritage":

              [S]tereotypes about ethnic groups appear as a part of the social
       heritage of society. They are transmitted across generations as a

5
       Social schemas can exist at any level of abstraction and along any
       dimension, such as identity group (for example, race), character traits (for
      'example, dominance), physical traits (for example, tall), social roles (for
       example, occupation), or general person impressions. Whites in America may
        attribute to blacks character traits such as laziness or hostility, physical traits
        such as kinky hair, roles such as entertainer or drug-dealer, and an overall
        negative person impression.

Page, supra, at 189.
6
               People generally match and compare incoming information with the
       most relevant schema or sub-schema. They then tend to order and process
       new related stimuli in keeping with other elements of the schema. A schema
       essentially operates as an implicit theory, which reflexively "directs the
       perceiver's attention . . . mediates inferences . . . guides judgment and
       evaluation; and ... fills in ... values for unexpected attributes." It is a way to
       integrate new material into familiar understanding and a way to draw
       conclusions beyond the information given. Not only do we assume the British
       are reserved or that Canadians are funny (if they are), but we also expect the
       British to act reserved and Canadians to be funny.

Page, supra, at 189-90 (alterations in original) (footnotes omitted) (quoting Eliot R. Smith,
Mental Representation and Memory, in 1 HANDBOOK OF SOCIAL PSYCHOLOGY 391, 404
(Daniel T. Gilbert et al. eds., 4th ed. 1998)).



                                              15
No. 86257-5

      component of the accumulated knowledge of society. They are as true
      as tradition, and as pervasive as folklore. No person can grow up in a
      society without having learned the stereotypes assigned to the major
      ethnic groups.

HOWARD J. EHRLICH, THE SOCIAL PSYCHOLOGY OF PREJUDICE 35 (1973).

      Unconscious stereotyping upends the Batson framework.                  Batson is only

equipped to root out "purposefuf' discrimination, which many trial courts probably

understand to mean conscious discrimination. See Batson, 476 U.S. at 98. But

discrimination in this day and age is frequently unconscious and less often

consciously   purposeful.      That   does     not   make     it    any   less   pernicious.

Problematically,   people are rarely aware of the actual reasons for their

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

mask it.   See Page, supra, at 175-77.         Since Batson's third step hinges on

credibility, this makes it very difficult to sustain a Batson challenge even in

situations where race has in fact affected decision-making. /d.

      More troubling for Batson is research showing that people will act on

unconscious bias far more often if reasons exist giving plausible deniability (e.g.,

an opportunity to present a race-neutral reason).             In one fascinating study,

researchers   tested   peoples'     unconscious      desire    to    avoid    contact   with

handicapped persons.        "In a carefully designed experiment, researchers found

that when offered a choice of two rooms in which movies were playing, people

avoided the room with a handicapped person, but only when doing so could

masquerade as a movie preference." TASK FORCE REPORT, supra, at 19. (citing

Melvin L. Snyder et al., Avoidance of the Handicapped: An Attributional Ambiguity

Analysis, 37 J. PERSONALITY & Soc. PSYCHOL. 2297, 2297, 2304 (1979)).                    But


                                          16
No. 86257-5

when       offered   outright the choice of sitting     next to   a handicapped or

nonhandicapped person, people chose to sit by the handicapped person to

conceal their prejudice. /d.

       None of this means we should turn a blind eye to the overwhelming

evidence that peremptory challenges often facilitate racially discriminatory jury

selection. Nor does it suggest we should throw up our hands in despair at what

appears to be an intractable problem.            Instead, we should recognize the

challenge presented by unconscious stereotyping in jury selection and rise to

meet it.

       Ill.     The constitutional value of a diverse jury

       We should also recognize that there is constitutional value in having

diverse juries, quite apart from the values enshrined in the Fourteenth

Amendment. Article I, section 21 of our state constitution declares, "The right of

trial by jury shall remain inviolate."

       We have juries for many reasons, not the least of which is that it is a

ground level exercise of democratic values.         The government does not get to

decide who goes to the lockup or even the gallows. Ordinary citizens exercise

that right as a matter of democracy. In England, the jury developed into juries of

one's peers, coming from one's community. This is the grand heritage of the jury

system.

       But equally fundamental to our democracy is that all citizens have the

opportunity to participate in the organs of government, including the jury. If we

allow the systematic removal of minority jurors, we create a badge of inferiority,



                                            17
No. 86257-5

cheapening the value of the jury verdict.         And it is also fundamental that the

defendant who looks at the jurors sitting in the box have good reason to believe

that the jurors will judge as impartially and fairly as possible.      Our democratic

system cannot tolerate any less.

         From a practical standpoint, studies suggest that compared to diverse

juries, all-white juries tend to spend less time deliberating, make more errors, and

consider fewer perspectives. EQUAL JUSTICE INITIATIVE REPORT, supra, at 6, 40-41.

In contrast, diverse juries were significantly more able to assess reliability and

credibility, avoid presumptions of guilt, and fairly judge a criminally accused. /d. at

41.      "By every deliberation measure, ... heterogeneous groups outperformed

homogeneous groups."         /d.   These studies confirm what seems obvious from

reflection: more diverse juries result in fairer trials.

         Thus,   our Batson analysis should reflect not only the Fourteenth

Amendment's equal protection guarantee, but also the jury trial protections

contained in article I, section 21 of our state's constitution.

         IV.     What to do about Batson?

         Race should not matter in the selection of a jury, but under current law it

often does.       We conclude from this that we should strengthen our Batson

protections, relying both on the Fourteenth Amendment and our state jury trial

right.

         We have a lot of flexibility to do so. The Batson framework anticipates that

state procedures will vary, explicitly granting states flexibility to fulfill the promise

of equal protection. Batson, 476 U.S. at 99-100 n.24 ("[W]e make no attempt to



                                             18
No. 86257-5

instruct [state and federal trial] courts how best to implement our holding today.");

Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129

(2005) (recognizing that states have "flexibility in formulating appropriate

procedures to comply with Batson"); Hicks, 163 Wn.2d at 489-90 (same). Indeed,

the Batson procedure itself was born in state courts out of a growing sense that

Swain was failing. Batson, 476 U.S. at 82 n.1, 99.

           Likewise, we have authority under federal law to pioneer new procedures

within existing Fourteenth Amendment frameworks. Smith v. Robbins, 528 U.S.

259, 273, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (states have "wide discretion,

subject to the minimum requirements of the Fourteenth Amendment, to

experiment with solutions to difficult policy problems"); Dickerson v. United States,

530 U.S. 428, 438-38, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

           We can also extend greater-than-federal Batson protections to defendants

under the greater protection afforded under our state jury trial right, a fact we

recognized in Hicks. 163 Wn.2d at 492.

           Justices Marshall and Breyer argue that the taint of racial discrimination on

peremptory challenges is so strong that the only way to remove it is to eliminate

the peremptory system altogether.          Batson, 476 U.S. at 102-03 (Marshall, J.,

concurring); Mil/er-E/, 545 U.S. at 266-67, 273 (Breyer, J., concurring). That may

be   SO.


           Justice Gonzalez's concurring heartfelt opinion argues for immediate

abolition of the peremptory challenge. We do not disagree with his call for the

need for a departure from the Batson framework, but we believe that such a major



                                             19
No. 86257-5

change in trial procedure should be tested in the furnace of advocacy at the trial

and appellate levels, with the opportunity for input from a broad range of interests,

before we abandon a procedure that was adopted by Washington's first territorial

legislature over 150 years ago.         '"[W]e are not in the business of inventing

unbriefed arguments for parties sua sponte .... '" In re Pers. Restraint of Coats,

173 Wn.2d 123, 138, 267 P.3d 324 (2011) (quoting State           v.   Studd, 137 Wn.2d

533, 547, 973 P.2d 1049 (1999)).            Alternatively, as both we and Justice

Gonzalez's concurring opinion note, it might be more appropriate to consider

whether to abolish peremptory challenges through the rule-making process

instead of in the context of a specific case. See infra p. 23.

      We have occasionally exercised our power to reach issues not raised by

the parties, but this case does not present any of the circumstances justifying

exercise of this discretionary power.            The parties have not "ignore[d] a

constitutional mandate, a statutory commandment, or an established precedent."

City of Seattle   v.   McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994).

       With respect to our concurring colleagues, we do not believe that our call

for new alternatives to the Batson analysis constitutes "'turn[ing] a blind eye,"'

"'throw[ing] up our hands in despair,"' or "'shrink[ing] from this challenge,"'

concurrence (Gonzalez, J.) at 2, nor are we reluctant to change the Batson

standard simply because the solution presents a difficult question, see

concurrence (Stephens, J.) at 1-2. Rather, we feel that now is the time to begin

the task of formulating a new, functional method to prevent racial bias in jury




                                            20
No. 86257-5

selection. To do so, we seek to enlist the best ideas from trial judges, trial lawyers,

academics, and others to find the best alternative to the Batson analysis.

       But it may instead be possible to address Batson's shortcomings in a more

targeted fashion. The main problem is that Batson's third step requires a finding

of "purposeful discrimination," which trial courts may often interpret to require

conscious discrimination.     This is problematic because discrimination is often

unconscious.      A   requirement     of   conscious   discrimination   is   especially

disconcerting because it seemingly requires judges to accuse attorneys of deceit

and racism in order to sustain a Batson challenge. See Robin Charlow, Tolerating

Deception and Discrimination After Batson, 50 STAN. L. REV. 9, 11 (1997) (noting

that one judge "had the uncomfortable feeling that she had just rendered an

official ruling that the attorney was lying to the court").   Imagine how difficult it

must be for a judge to look a member of the bar in the eye and level an

accusation of deceit or racism. 7 And if the judge chooses not to do so despite

misgivings about possible race bias, the problem is compounded by the fact that

we defer heavily to the judge's findings on appeal. Hicks, 163 Wn.2d at 486. A

strict "purposeful discrimination" requirement thus blunts Batson's effectiveness

and blinds its analysis to unconscious racism. 8         As a first step, we should

7
  Likewise, "[m]any defense lawyers fail to adequately challenge racially discriminatory
jury selection because they are uncomfortable, unwilling, unprepared, or not trained to
assert claims of racial bias." EQUAL JUSTICE INITIATIVE REPORT, supra, at 6.
8
  It could be argued (although none of the parties makes this argument) that "purposeful
discrimination" already encompasses unconscious bias. This argument flows from the
idea that the "purposeful discrimination" requirement was never intended to be a proxy
for conscious intent or anything resembling a conscious mens rea, but rather a signpost
for distinguishing between discriminatory purpose and disproportionate impact. Before
Batson was decided, it was well established that disproportionate impact alone does not


                                           21
No. 86257-5

abandon and replace Batson's "purposeful discrimination" requirement with a

requirement that necessarily accounts for and alerts trial courts to the problem of

unconscious bias, without ambiguity or confusion.        For example, it might make

sense to require a Batson challenge to be sustained if there is a reasonable

probability that race was a factor in the exercise of the peremptory or where the

judge finds it is more likely than not that, but for the defendant's race, the

peremptory would not have been exercised. A standard like either of these would

take the focus off of the credibility and integrity of the attorneys and ease the

accusatory strain of sustaining a Batson challenge. This in turn would simplify the

task of reducing racial bias in our criminal justice system, both conscious and

unconscious.

       However, a new, more robust framework should do more than simply

acknowledge that unconscious bias is a permissible consideration in the Batson



violate the equal protection clause. See Washington v. Davis, 426 U.S. 229, 240, 96 S.
Ct. 2040, 48 L. Ed. 2d 597 (1976). It could be argued that Batson's "purposeful
discrimination" requirement therefore meant not that the state's attorney need be found
intentionally racist, only that racial bias (conscious or unconscious, as the argument
would go) be the source of any disparate impact. This argument finds support in
scholarship and in the United States Supreme Court's equal protection jurisprudence
regarding jury selection. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct.
1221, 31 L. Ed. 2d 536 (1972) (finding that disproportionate exclusion of blacks in
subjective jury selection process was clearly discriminatory even with "no evidence that
the commissioners consciously selected by race"); Batson, 476 U.S. at 94 (citing
Alexander); see a/so Hernandez v. Texas, 347 U.S. 475, 482, 74 S. Ct. 667, 98 L. Ed.
866 (1954) ("The result bespeaks discrimination, whether or not it was a conscious
decision on the part of any individual .... "); Ralph Richard Banks & Richard Thompson
Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58
EMORY L.J. 1053, 1090-93 (2009) (concluding that "discriminatory purpose" includes
unconscious bias under current equal protection jurisprudence). This argument makes
sense, but we do not consider it here. The issue was not raised or decided below, the
trial court easily could have understood "purposeful discrimination" to include
unconscious bias, and the facts of this case simply do not compel a finding of purposeful
discrimination even if considering unconscious discrimination.


                                           22
No. 86257-5

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. On the

other hand, it may be that Justices Marshall and Breyer are right and the problem

is so dire that the only solution is to eliminate peremptory challenges altogether.

See Batson, 476 U.S. at 102-03 (Marshall, J., concurring); Mil/er-E/, 545 U.S. at

266~67,   273 (Breyer, J., concurring).

      A rule change of this magnitude might also be best made through the rule-

making process. This court possesses certain rule-making authority inherent in

its power to prescribe rules of procedure and practice, which is supplemented by

the Legislature. State v. Templeton, 148 Wn.2d 193, 212-13, 59 P.3d 632 (2002).

We could certainly adopt a rule that would strengthen our procedures for Batson

challenges, and this may be the most effective way to reduce discrimination and

combat minority underrepresentation in our jury system. 9

       V.      Application to this case

       As urgent as the need for a new framework may be, we cannot create one

in this case. Neither party has asked for a new standard or framework, nor have

they briefed or argued what that framework might be or how it would apply in this

case. The issue also was not raised or decided at the Court of Appeals or the trial

court. This means the record has not been developed in a way that will facilitate


9
   Ironically, Justice Stephens's concurring op1n1on takes this op1n1on to task for
discussing possible solutions and then launches into a lengthy criticism of possible
solutions. Concurrence (Stephens, J.) at 2-5.


                                          23
No. 86257-5

our review, nor have we obtained the benefit of input from amici, including

members of the bar and other stakeholders. It must wait for another case.

       VI.     The trial court did not clearly err by finding there was no purposeful
               discrimination in this case

       Instead, we apply Batson to this case and conclude that the trial court's

finding that there was no purposeful discrimination was not clear error. A trial

court's decision that a challenge is race-neutral is a factual determination based in

part on the answers provided by the juror, as well as an assessment of the

demeanor and credibility of the juror and the attorney. Batson, 476 U.S. at 98

n.21. The defendant carries the burden of proving purposeful discrimination. /d.

at 93. The trial judge's findings are "accorded great deference on appeal" and will

be upheld unless proved clearly erroneous. Hernandez v. New York, 500 U.S.

352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991).         Deference to trial court

findings is critically important in Batson cases because the trial court is much

better positioned than an appellate court to examine the circumstances

surrounding the challenge. Further, deference is important because trial judges

must have some assurance that the rest of the trial will not be an exercise in

futility if it turns out an appellate court would have ruled on a Batson challenge

differently.

       Here, we find no clear error in the trial court's determination that the

prosecution had a valid race-neutral reason to peremptorily strike Ms. Tolson. Ms.

Tolson said she might have trouble sitting on the jury of a murder trial because

someone she knew had recently been murdered:




                                          24
No. 86257-5

             I mean, I have never been in this situation where I have lost
      someone. You just went to the funeral. He is young. Only 24. And to
      be called to jury duty to perhaps be on a jury of a murder suspect. I
      don't know how I'm going to react. You know, I don't know. I'm-I'm
      not an emotional person, but I'm thinking as we go through it, and I
      hear the testimony, and I see the pictures, I don't know. I mean, I'm
      just being honest. I don't know how I'm going to feel.

RP (Mar. 10, 2009) at 43. In light of Ms. Tolson's statements throughout voir dire,

we defer to the trial court's factual finding that the prosecutor was justified in

believing there was a realistic possibility that she might have been "lost" as a juror

before the end of the case. The record does not compel a contrary conclusion.

The trial court observed the juror and agreed that she was having difficulties.

Losing jurors during a lengthy trial is always a possibility, and justice is not served

when a mistrial is declared or a juror is unable to view and process the evidence.

Here, it was entirely reasonable for the court to conclude that the prosecutor's

concerns were legitimate and race-neutral, and there was no clear error.               We

affirm the trial court's finding that there was no purposeful discrimination.

       We do, however, acknowledge that Ms. Tolson was questioned far more

than any other juror, perhaps in part because she was black. This conclusion is

supported by a statistical analysis of the prosecution's voir dire that appears in

Appendix A, attached to this opinion. 10 These statistics are rather striking, and in

general, disparate questioning of minority jurors can provide evidence of

10
   The charts in Appendix A track two relevant measures of prosecutor questioning: (1)
the number of questions asked of each juror by the prosecution and (2) the total number
of words spoken (by both prosecutor and venireperson) in direct interaction with each
prospective juror. Totals do not include statements or questions made by the prosecutor
to the venire at large that were not directed to any particular juror. Totals omit voir dire
by defense counsel and individual questioning conducted outside the presence of the full
venire.



                                            25
No. 86257-5

discriminatory purpose because it can suggest that an attorney is "fishing" for a

race-neutral reason to exercise a strike. See Mil/er-E/, 545 U.S. at 241; Reed v.

Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). However, disparate questioning

does not itself prove purposeful discrimination.         In some cases, there may be

good reasons to question minority jurors more than nonminority jurors. Here, for

example, the prosecutor began by eliciting Ms. Tolson's views on race in the

criminal justice system and later spoke with her regarding the recent death of her

friend. These were legitimate topics to explore. 11 We defer to the trial court that

the disparate questioning in this case, while it may have been motivated in part by

race, did not necessarily amount to purposeful discrimination.

      We also acknowledge that the prosecution attempted to strike the only

Mexican-American juror in the venire, juror 10. RP (Mar. 10, 2009) at 119-20.

And while it is true that a court's finding of discrimination against one juror is

evidence of discrimination against others, it does not follow that one Batson

violation necessarily implies another. Snyder, 552 U.S. at 478.

       Under Batson, we defer to the trial court's ruling.




11
  The chief justice's concurring opinion criticizes our reference to statistics of the number
of questions asked of Ms. Tolson compared with the other jurors, asking why additional
questions were asked and "many other factors" and disclaiming any reliance on
statistics. Concurrence (Madsen, C.J.) at 5-6. This criticism is particularly inapt in light
of this opinion's extensive quotations from the voir dire of Ms. Tolson, id. at 3-6, 25, and
one statement that disparate questioning does not itself prove purposeful discrimination.


                                             26
No. 86257-5

                                  CONCLUSION

      Racial inequalities permeate our criminal justice system and present

important moral issues we all must grapple with. Twenty-six years after Batson, it

is increasingly evident that discriminatory use of peremptory challenges will be

difficult to eradicate. We should not shrink from this challenge, but this is not the

case to address it. It must wait for another day to determine how to adapt Batson

to the realities of continuing race discrimination and fulfill the promise of equal

protection.

      We affirm the Court of Appeals.




                                         27
No. 86257-5




     WE CONCUR.




                  28
 No. 86257-5
                                 APPENDIX A
               Questions   Total Words of
Juror Number    Asked        Interaction
      1            6            155
      4           4             102
      5            1             16                    Total Words of Interaction
      7            5            151
     10            5            159            7       -
     11           12            535           80
                                              79
     12            5            127           72
     13            7            190           70
     16            2            88            69
     20            2            55            67
     22            6             98           66
                                              65
     23            2             88
                                              62
     24            5            147           60
     26            1             26           55
     27           11            521           52
     29           5             166           so
     32           6             301           49
                                              46
     33           4             137
                                              44
     34           17           1165           43
     36           14           389            42
     39           1              89           39
     42           3             103
     43           3             128
                                              33
     44           7             258           32
     46           4             228           29
     49           9            456            27     ~--~
     50           1             44            26
     52           9             362           24
                                              23
     55           4             125
                                              22
     60           2             108
     62           5             118
     65           1              20           13
     66           6             407           12
     67                                       11
                  4             168
                                              10
     69           4             149            7
     70           1              6             5
     72           2             40             4
     79           2             75             1
                                                   •. f............ "'"'""""'"'"'""""""""""'''"l
     80           3             36                 0                                      500      1000   1500
      ?           2             140
 Grand Total     193           7676


                                        1
No. 86257-5


                                               Juror 34 Compared to Average
          Questions Asked                               (Total Words)

                                        Average
  7
 80                                     Juror 34

 79
                                                   0        500        1000          1500
 72
 70
 69
 67
 66
                                              Juror 34 Compared to Average
 65
                                                    (Questions Asked)
 62
 60                                     Average
 55
                                        Juror 34
 52
 50                                                0    5         10          15         20
 49
 46
 44
 43
 42                                         Juror 34 as a Proportion of Whole
 39                                                    (Total Words)
 36
 34                                                                     li1ll Juror 34
                                                                          (15.2%)
 33
 32                                                                       Other Jurors




                  -
 29                                                                       (84.8%)

 27
 26
                   •
 24
 23
 22                                         Juror 34 as a Proportion of Whole
 20                                                 (Questions Asked)
 16
                                                                        li1ll Juror 34
 13
                                                                          (8.8%)
 12
                                                                          Other Jurors
 11
                                                                          (91.2%)
 10




  1-~~~~-~-~-·--~--t·-·--···-···
  4 ·-·

      0       5   10    15     20




                                    2
State v. Saintcalle (Kirk Ricardo)




                                       No. 86257-5


       MADSEN, C.J. (concurring)-Like my colleagues, I am concerned about racial

discrimination during jury selection. Here, the issue is whether the prosecutor's use of a

peremptory challenge to dismiss a black member of the jury venire was based on her race

and therefore violated equal protection.

       The constitutionally based evaluation established in Batson v. Kentucky, 476 U.S.

79, 106 S. Ct. 1712, 90 L. Ed. 69 (1986), is used to make the assessment whether

purposeful discrimination occurred. In the first of the Batson three-step analysis, the

defendant must make a prima facie showing that a peremptory challenge was made on the

basis of the venire member's race. Then, in accord with the Batson analysis, the State

must offer a race-neutral explanation for the use of the peremptory challenge and, finally,

the trial judge must make a determination as to whether racial discrimination occurred.

       Batson's framework continues to apply to identify the constitutional equal

protection violations that it was intended to reach, those involving purposeful

discrimination. But as the Court advised, state courts have some flexibility to develop

procedures to comply with Batson. Johnson v. Cal(fornia, 545 U.S. 162, 168, 125 S. Ct.
No. 86257-5
Madsen, C.J. (concurring)


2410, 162 L. Ed. 2d 129 (2005); see State v. Hicks, 163 Wn.2d 477,489-90, 181 P.3d 831

(2008). Recently, for example, in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010),

five members of the court agreed that the defendant can establish the prima facie case

when the record shows that the prosecution exercised a peremptory challenge against the

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

racial group as the defendant. !d. at 661 (Alexander, J., dissenting); id. at 658 (Madsen,

C.J., concurring). 1 I agreed with the Rhone dissent on this point, but also said that this

means of establishing the prima facie case should be applied only in future cases, going

forward. !d. Thus, since the present case arose before Rhone was issued, the alternative

approach set out in the dissent in Rhone is not at issue.

       Beyond the constitutional inquiry, which is aimed at purposeful discrimination,

there are growing concerns about unconscious and implicit racial biases that could also

affect jury selection. Both the lead opinion and some of the concurrences consider such

concerns at some length.

       But the constitutional test from Batson is intended to reach purposeful

discriminatory exercise of the peremptory challenge "based on either the race of the juror

or the racial stereotypes held by the party." Georgia v. McCollum, 505 U.S. 42, 59, 112

1
  Among other things, the lead opinion in Rhone observed that the Court in Batson overruled a
prior test focusing on systematic discrimination. Rhone, 168 Wn.2d at 652 n.4 (discussing
Miller-El v. Dretke, 545 U.S. 231, 269-70, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Batson;
and Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), overruled by
Batson, 476 U.S. 79). The Court noted that in cases decided after Swain, it had "recognized that
a defendant may make a prima facie showing of purposeful racial discrimination in selection of
the venire by relying solely on the facts concerning its selection in his case." Batson, 476 U.S. at
95.
                                                 2
No. 86257-5
Madsen, C .J. (concurring)


S. Ct. 2348, 120 L. Ed. 2d 33 (1992). We have not been asked to reassess or modify the

Batson approach or to address any policy-based nonconstitutional analyses or

nonpurposeful discrimination based on race during jury selection. 2 Nonetheless, both the

lead opinion and Justice Gonzalez's concurrence discuss possible approaches to address

implicit or unconscious discrimination and Justice Gonzalez calls for abolishment of

peremptory challenges to resolve the problem.

       The peremptory challenge is an important "state-created means to the

constitutional end of an impartial jury and a fair trial." !d. at 58; accord State v. Latham,

100 Wn.2d 59, 70, 667 P.2d 56 (1983) (the peremptory challenge "is an important and

substantial right which protects a party's constitutional right trial by juri') (citing Smith

v. Kent, 11 Wn. App. 439, 523 P.2d 446 (1983)). Eliminating the peremptory challenge

would be an enormous change in our system and certainly one the court should not

consider lightly and certainly should not implement sua sponte.

       In my view, the analysis in this case should be limited to the issues raised by the

parties. The case should be decided under Batson's "purposeful discrimination"

constitutional standard and should not be a forum for discussing how to counter

"implicit" or "unconscious" discrimination when these questions have not been raised by

the parties. The danger inherent in such discussions is the probability that the court will

2
  As the lead opinion notes, "[n]either party has asked for a new standard or framework, nor have
they briefed or argued what that framework might be or how it would apply in this case," the
issue was not raised or decided at the Court of Appeals, and amici, the bar, and other
"stakeholders" have not provided any input. Lead opinion at 23-24. The lead opinion also says
that this case does not present circumstances calling for exercise of our discretionary power to
reach issues not raised by the parties. !d. at 20.
                                                3
No. 86257-5
Madsen, C.J. (concurring)


not be fully and completely informed, despite all best efforts, about all aspects of the

matter when we have only our own investigation, research, and analysis to consider. The

rich tradition of briefing in appellate courts ensures not only that we consider the issues

that the parties raise but that we are well informed. The range of resources expands

tremendously when, rather than our own research and that provided by the parties, we

have in addition input from other interested entities-when a new court rule is proposed,

for example.

       Here, when the prosecutor used a peremptory challenge to dismiss jury venire

member Ms. Anna Tolson, the only black member of the venire, the defendant objected

and established a prima facie case of discrimination. The prima facie case was easily

made because the prosecutor singled this juror out, making it abundantly clear that he did

so on the ground that, because of her race, she would have a different viewpoint from the

rest of the venire. The judge appropriately required the prosecutor to explain why the

peremptory challenge was exercised and then found that the prosecutor was justified in

believing there was a realistic possibility that Ms. Tolson might be lost as a juror before

the trial concluded, especially since she had very recently lost someone who was

murdered. The judge's ruling was not an abuse of discretion.

       Finally, I offer a brief comment on the lead opinion's appended charts totaling the

number of questions and words with respect to each prospective juror. We are not a

group of qualified statisticians. One does not have to look very far to find a significant

mistake made by this court when attempting to resolve a question in a case involving

                                               4
No. 86257-5
Madsen, C .J. (concurring)


statistics. In a prosecution for murder, in which DNA (deoxyribonucleic acid) evidence

was an important part of the State's case, we originally rejected the State's expert's

testimony that the defendant's DNA was a 1 in 19.25 billion "match" to the forensic

sample. We concluded that this was basically an assertion that the defendant was the

only person with this DNA profile because the 19.25 billion figure was almost four times

the population of the earth. State v. Buckner, 125 Wn.2d 915, 890 P.2d 460 (1995). On

reconsideration, we recognized our error: "Contrary to our original view in this case, we

now recognize that a profile probability of 1 in 20 billion or other number greater than the

earth's population may be admissible, as the state of forensic DNA analysis allows for

such probabilities." State v. Buckner, 133 Wn.2d 63, 66, 941 P.2d 667 (1997). The

mistaken first opinion had, in fact, been singled out as a bad example of statistical

analysis of forensic DNA typing. Comm. on DNA Forensic Science: An Update, Nat'l

Research Council, The Evaluation of Forensic DNA Evidence (Nat'l Acad. Press 1996).

       Without knowing what topics were discussed, why additional questions were

asked, whether individual prospective jurors had personal characteristics that may have

affected the number of questions asked (hearing difficulties, comprehension levels, etc.)

or personal tendencies such as to respond at length or to ask repeatedly for clarification,

and likely many other factors, it is insufficient to count questions or individual words.

While a marked difference in questioning may suggest discrimination, I would not rely




                                              5
No. 86257-5
Madsen, C.J. (concurring)


on charts to show discrimination based on the number of questions asked or the length of

the interactions with individuals during voir dire. 3

       I concur in the result reached in the lead opinion but write separately to express

disagreement with going beyond the arguments of the parties.




3
 Although the lead opinion notes that there are limitations to relying on statistics, inclusion of
detailed graphs and pie charts suggests the opposite.
                                                 6
No. 86257-5
Madsen, C.J. (concurring)




                            7
State v. Saintcalle (Kirk Ricardo)




                                     No. 86257-5




       STEPHENS, J. (concurring)-Between Justice Wiggins's lead opinion,

Chief Justice Madsen's and Justice Gonzalez's concurring opinions, and Justice

Chambers's dissenting opinion, thousands of words have been written in this case.

Only a fraction speak to the actual result: the court affirms Kirk Saintcalle' s

conviction, finding no violation of equal protection under Batson v. Kentucky, 476

U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). I concur in this result.

       I write separately to sound a note of restraint amidst the enthusiasm to craft a

new solution to the problem of the discriminatory use of peremptory challenges

during jury selection.     The difficulties inherent in this area have long been

recognized, but it is easier to name the ,problem than to solve it. See Jeffrey Bellin

& Junichi P. Semitsu, Widening Batson's Net to Ensnare More than the

Unapologetically Bigoted or Painfully Unimaginative Attorney, 96          CORNELL   L.

REV.   1075, 1106-08 (2011) (surveying plans to reform the peremptory challenge,

but noting most "are unlikely to resonate beyond the academy and particularly

unlikely to resonate with legislatures who must implement any such reform
State v. Saintcalle (Kirk Ricardo), 86257-5 (Stephens, J. Concurrence)




proposal"); Peter J. Henning, Prosecutorial Misconduct and Constitutional

Remedies, 77 WASH. U. L. Q. 713, 796 (1999) (admitting that reform in this area

"is easier said than done"). Perhaps the reluctance of both the lead opinion and

Justice Gonzalez's concurrence to adopt the solutions they suggest belies this

concern. 1

       Before embracing any new solution, I think it is important to carefully

consider our authority as a court sitting in review. We are not acting in our rule-

making capacity. And, obviously it is not our role to legislate. We should not

skim over the question of what is involved in changing the Batson standard (as

Justice Wiggins favors), eliminating peremptory challenges entirely (as Justice

Gonza1ez advocates), or exercising our inherent supervisory power to fashion rules

to address "the pernicious effect of unconscious racism" (as Justice Chambers

suggests). Dissent (Chambers, J.) at 2. Because the issue is entirely unbriefed, we

are not adequately informed on all sides of the question. I offer a few observations

that give me pause.

       First, the rule announced in Batson is narrow, placing a constitutional limit

on the exercise of peremptory challenges based on a finding of purposeful



       1
         It is also noteworthy that neither of these opinions would find a satisfactory
solution to the discrimination problem in the rule proposed by the dissent in State v.
Rhone, 168 Wn.2d 645, 659, 229 P.3d 752 (2010) (Alexander, J., dissenting). Under that
rule, the Batson threshold of purposeful discrimination would remain and parties would
retain the right to exercise peremptory challenges; however, the party proposing to strike
"the only remaining minority member of the defendant's cognizable racial group or the
only remaining minority in the venire," would be required to provide a race-neutral
reason for doing so. Id. at 663 (Alexander, J., dissenting).

                                            -2-
State v. Saintcalle (Kirk Ricardo), 86257-5 (Stephens, J. Concurrence)




discrimination. 2   Under controlling precedent from the United States Supreme

Court, this is the reach of the federal equal protection clause to invalidate a party's

exercise of peremptory challenges, whether such challenges are authorized by

statute or court rule or both. Justice Wiggins suggests that "our Batson analysis

should reflect not only the Fourteenth Amendment's equal protection guaranty, but

also the jury trial protections contained in article I, section 21 of our state's

constitution." Lead opinion at 18. I am unsure what this means, and no one has

suggested that our state jury trial right requires restricting or eliminating the use of

peremptory challenges.       To the contrary, courts have consistently recognized

peremptory challenges as integral to "assuring the selection of a qualified and

unbiased jury." Batson, 476 U.S. at 91; State v. Vreen, 99 Wn. App. 662, 666-68,

994 P .2d 905 (2000) (recognizing defendant's exercise of for-cause and

peremptory challenges as part of right to fair trial and impartial jury under federal

Sixth Amendment and article I, sections 21 and 22 of our state constitution); State

v. Rhone, 168 Wn.2d 645, 654, 229 P.3d 752 (2010) (noting Batson did not

transform "a shield against discrimination into a sword cutting against the purpose

of a peremptory challenge"). Thus, it may be as valid an argument to say that the

state jury trial right enshrines peremptory challenges as to say it restricts them.

       2
         This is consistent with other areas of discrimination law, most notably
employment law from which the Batson three-part, burden-shifting analysis is drawn.
See Batson, 476 U.S. at 94 n.18 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792,93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)); Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978) (noting that the McDonnell Douglas
framework "is merely a sensible, orderly way to evaluate the evidence in light of
common experience as it bears on the critical question of discrimination").

                                           -3-
State v. Saintcalle (Kirk Ricardo), 86257-5 (Stephens, J. Concurrence)




       Second, the solutions proposed by both the lead opmwn and Justice

Gonzalez's concurrence go far beyond invalidating peremptory challenges that

violate the equal protection rights of litigants and jurors recognized in Batson and

its progeny.     We should therefore at least acknowledge the existence of a

subconstitutional "right" of litigants to participate in jury selection by exercising

both for-cause and peremptory challenges. Justice Gonzalez's concurrence seems

to assume that peremptory challenges are wholly within our purview to eliminate.

But, we are not the only branch of government concerned with fairness and

impartiality in jury trials. Among the statutes in play is RCW 2.36.080, which

addresses jury selection and provides in relevant part:

             (3) A citizen shall not be excluded from jury service in this state on
       account of race, color, religion, sex, national origin, or economic status.
             (4) This section does not affect the right to peremptory challenges
       under RCW 4.44.130.

While the procedural mechanism for exercising juror challenges in criminal cases

has largely moved from statute to court rule, the general provisions in chapter 2.36

RCW apply and the court rules in several instances incorporate or restate the

statutory framework. See CrR 6.4. How we could deny a litigant a constitutionally

valid exercise of peremptory challenges secured by statute or court rule 1s an

unexamined question.

       The most thorough discussion in Washington case law of what the "right" to

peremptory challenges means is the Court of Appeals opinion in Vreen, 99 Wn.

App. 662. At his trial, the defendant, Vreen, who is African-American, attempted



                                           -4-
State v. Saintcalle (Kirk Ricardo), 86257-5 (Stephens, J. Concurrence)




to exercise a peremptory challenge to remove the sole African-American member

of the jury pool. The State objected under Batson, and the court rejected Vreen's

stated race-neutral reason for the juror's removal-that the juror was a pastor and

retired serviceman and therefore of "an authoritarian mind-set." ld. at 665-67.

Vreen appealed his conviction, contesting the denial of his peremptory challenge.

On appeal, the State conceded that the trial court erred in sustaining its Batson

objection but argued that the erroneous denial ofVreen's peremptory challenge did

not require reversal in the absence of prejudice. ld. at 667-68. The Court of

Appeals disagreed, noting that "the interplay of challenges for cause and

peremptory challenges . . . assures [a] fair and impartial jury." ld. at 668. It

concluded that "[a]lthough the denial of a peremptory challenge may not be an

issue of constitutional dimension, it is, nevertheless, an important right."        ld.

Based on the violation of this right, the court granted Vreen a new trial. I d. at 671;

accord State v. Bird, 136 Wn. App. 127, 133-34, 148 P.3d 1058 (2006) (following

Vreen and granting new trial where defendant was wrongly denied peremptory

challenge). I, for one, would like to know more about how the principles discussed

in Vreen and similar cases inform our consideration of possible solutions to the

problem of discrimination in jury selection.

       As noted, my purpose today is to sound a note of restraint. We held to the

Batson standard in Rhone, and we do so again today.              I do not criticize my

colleagues for embracing an opportunity to explore a thorny issue, but I believe

there are better avenues than judicial opinions to do so.


                                            -5-
State v. Saintcalle (Kirk Ricardo), 86257-5 (Stephens, J. Concurrence)




                                            -6-
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring




                                      No. 86257-5

       GONZALEz, J. (concurring)-This splintered court is unanimous about one

thing: Racial bias in jury selection is still a problem-"Solutions to the Problem, Of

Course, wait." 3 Langston Hughes, Dinner Guest: Me, in THE COLLECTED WORKS

OF LANGSTON HUGHES 173 (Arnold Rampersad ed., 2001). Batson challenges have

not ended racial bias in jury selection. Only once has a race-based Batson challenge

resulted in reversal in Washington. See State v. Cook, No. 67332-7-I (Wash. Ct. App.

May 28, 2013). With the exception of Justice Chambers, my colleagues recast their

unwillingness to act as virtuous restraint. Lead opinion at 2; concurrence (Madsen,

C.J., joined by J.M. Johnson, J.) at 3-4; concurrence (Stephens, J., joined by C.

Johnson and Fairhurst, JJ.) at 1.

        There are half-measures that may reduce the amount of bias in the jury

selection process, such as tighter control of questioning based on the federal court

model or reduction of the number of peremptory challenges that may be exercised. I

believe, however, it is time to abolish peremptory challenges. Peremptory challenges

are used in trial courts throughout this state, often based largely or entirely on racial

stereotypes or generalizations. See infra pp. 15-29. As a result, many qualified

                                             1
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

persons in this state are being excluded from jury service because of race. At the

same time, trial and appellate courts cannot reliably identify which particular

challenges involve racial discrimination and which do not. See infra pp. 30-34.

Moreover, the use of peremptory challenges contributes to the historical and ongoing

underrepresentation of minority groups on juries, imposes substantial administrative

and litigation costs, results in less effective juries, and unfairly amplifies resource

disparity among litigants-all without substantiated benefits. See infra pp. 38-52.

The peremptory challenge is an antiquated procedure that should no longer be used.

       As the lead opinion rightly states, we must "recognize the challenge presented .

. . and rise to meet it." Lead opinion at 17. We must not "tum a blind eye," "throw up

our hands in despair," or "shrink from this challenge"-but that is precisely what the

majority of this court does in this case. Lead opinion at 17, 27; lead opinion at 2;

concurrence (Madsen, C.J., joined by J.M. Johnson, J.) at 1, 3; concurrence (Stephens,

J.,joined by C. Johnson and Fairhurst, JJ.) at 1, 5. Petitioner Kirk Saintcalle

complains that racial discrimination was behind the use of a peremptory challenge at

his trial and also points out that our current procedural framework is failing to address

this ongoing problem. He is right about the ongoing failure of our procedural

framework. The majority of this court aclmowledges the problem, but does nothing

about it. Yet this court has a duty to ensure that the trial procedures it oversees and

maintains do not propagate racial discrimination. We can fix this problem directly.

We should abolish peremptory challenges in our courts.

                                              2
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       That said, although the peremptory challenges at Saintcalle' s trial constituted

error, Saintcalle is not entitled to reversal of his conviction. Given that trial courts

throughout the state have been allowing peremptory challenges in good faith to this

point, and because peremptory challenges are not always harmful or pernicious, the

erroneous allowance of a peremptory challenge does not warrant reversal in every

case. See, e.g., Creech v. City ofAberdeen, 44 Wash. 72,73-74, 87 P. 44 (1906)

(erroneous allowance of peremptory held harmless); cf Rivera v. Illinois, 556 U.S.

148, 157, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009) (noting the significance of a

"court's good-faith error"). Instead, reversal is warranted on appeal only if the trial

court (1) acted in bad faith in allowing the challenge or (2) allowed the challenge in

good faith but failed to comply with Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,

90 L. Ed. 2d 69 (1986).

        One of the reasons why we must abolish peremptory challenges is because it is

too difficult to identify the presence of racial discrimination under Batson in any

given case and thus, too difficult to identify the individual cases that warrant reversal.

In this particular case, the trial court acted in good faith and did not commit clear error

in allowing the challenge to prospective juror Tolson. Thus, I concur in the judgment

because under the appropriate framework for deciding this case, Saintcalle is not

entitled to reversal of his conviction.




                                              3
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

                                   I.   A DUTY TO ACT

       We must address the ongoing problem of racial discrimination in the use of

peremptory challenges. Otherwise, we ignore our duty to resolve disputes fully,

fairly, and effectively and to ensure that trial procedures in this state promote justice

and comply with the federal and state constitutions.

       In order to fully, fairly, and effectively adjudicate Saintcalle's claim we must

address the presence of racial discrimination within our jury selection procedures.

The primary duty of this court is "to see that justice is done in the cases which come

before it, which fall within its jurisdiction." 0 'Connor v. Matzdorjf, 76 Wn.2d 589,

600, 458 P.2d 154 (1969); see also RAP 1.2(a), (c); 7.3. Accordingly, this court has

"frequently recognized it is not constrained by the issues as framed by the parties" and

will "reach issues not briefed by the parties if those issues are necessary for decision."

City of Seattle v. McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994) (citing cases);

State v. Aho, 137 Wn.2d 736, 740-41, 975 P.2d 512 (1999) (citing cases); Hall v. Am.

Nat'l Plastics, Inc., 73 Wn.2d 203, 205, 437 P.2d 693 (1968) (noting that courts

"frequently decide crucial issues which the parties themselves fail to present" (citing

cases)). In other words, we will resolve whatever legal issues must be resolved to

properly adjudicate the claims and issues raised on appeal. In this case, Saintcalle has

complained that the prosecutor in his case was allowed to exercise a racially

discriminatory peremptory challenge. See Suppl. Br. ofPet'r at 3. Saintcalle argues



                                             4
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

that '"[r]acial iniquities permeate Washington's criminal justice system,'" 1 that this

state has "fail[ ed] to enforce the Equal Protection Clause under Batson," and that

"'[t]he dearth of recent cases in which courts have actually found racial discrimination

injury selection suggests not that such discrimination doesn't occur, but that the

judiciary has failed to identify and remedy it. "'2 !d. at 3-4. Accordingly, this case

does bring into question the underlying validity of peremptory challenges and the

proper framework for reviewing the use of such challenges, even if Saintcalle has not

explicitly requested that we alter our court rules or jury selection process. In order to

justly and properly resolve Saintcalle's claim, we must address the deeply flawed

procedural and appellate framework in which it arose.

       Instead, today this court fails to ensure that none of our trial procedures

propagate injustice. We have "inherent power to govern court procedures" as "a

necessary adjunct of the judicial function." City of Seattle v. Hesler, 98 Wn.2d 73, 80,

653 P.2d 631 (1982); see also RCW 2.04.190; State v. Gresham, 173 Wn.2d 405, 428-

29, 269 P.3d 207 (2012); State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d 632

(2002); Marine Power & Equip. Co. v. Indus. Indem. Co., 102 Wn.2d 457, 461, 687

P.2d 202 (1984); State v. Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975); State v.

Smith, 84 Wn.2d 498, 501-02, 527 P.2d 674 (1974); State ex rel. Foster-Wyman


1
  Quoting TASK FORCE ON RACE AND THE CRIMINAL JUSTICE SYSTEM, PRELIMINARY REPORT ON
RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM 7 (2011) (alteration in original).
2
  Quoting Bidish Sarma, Commentary, When Will Race No Longer Matter in Jury Selection? 109
MICH. L. REV. First Impressions 69, 72 (2011) (alteration in original), available at
http://www.michiganlawreview.org/assets/fi/109/sanna2.pdf.
                                             5
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Lumber Co. v. Superior Court, 148 Wash. 1, 4-12, 267 P. 770 (1928). This well-

established authority includes the power to create, modify, or waive court rules, see

GR 90)(1); O'Connor, 76 Wn.2d at 595-97, 600, as well as the power to exercise

supervisory authority over the courts of this state, see State v. Bennett, 161 Wn.2d

303, 317-18 & n.11, 165 P.3d 1241 (2007). Our authority in this context is plenary

and thus our procedural rules "cannot be abridged or modified by the legislature,"

Smith, 84 Wn.2d at 502, although the legislature may supplement our procedural rules

by statute, see Gresham, 173 Wn.2d at 428. In accordance with our primary duty to

seek justice in the cases that come before us, and because '"[n]o rule of this court was

ever intended to be an instrument of oppression or injustice,"' we have "suspended the

rules where justice demanded it." 0 'Connor, 76 Wn.2d at 595-96 (quoting State v.

Brown, 26 Wn.2d 857, 865, 176 P.2d 293 (1947)); see, e.g., id. at 596, 600 (excepting

indigents from court rule and statute imposing filing fee); cf Sackett v. Santilli, 146

Wn.2d 498, 504, 47 P.3d 948 (2002) (noting this court cannot "contradict the state [or

federal] constitution by court rule").

        The use of peremptory challenges in our courts is exactly the type of trial court

practice over which we have inherent and ongoing authority. See State v. Tharp, 42

Wn.2d 494, 501, 256 P.2d 482 (1953) ("[T]he selection of the jury is procedural.");

see also Fields, 85 Wn.2d at 129. There is no constitutional requirement that

peremptory challenges be included within our trial procedures. See, e.g., Rivera v.

Illinois, 556 U.S. 148, 152, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009); Georgia v.

                                             6
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

McCollum, 505 U.S. 42, 57, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (citing cases);

State v. Persinger, 62 Wn.2d 362, 365-:66,382 P.2d 497 (1963); Crandall v. Puget

Sound Traction, Light & Power Co., 77 Wash. 37, 40, 137 P. 319 (1913). Thus,

peremptory challenges continue to be used in our courts only insofar as we allow them

to be used.

       If we truly are unsure of the appropriate way to address the ongoing racial

discrimination within our jury selection procedures, we should ask for further

briefing. See RAP 10.6(c), 12.1(b). But as is explained below, the need to abolish

peremptory challenges "is so apparent that additional briefing is unnecessary." Aho,

137 Wn.2d at 741 (noting that in a rare case in which "briefing is not necessary to full

and fair resolution of the issue" we can "decide the issue without additional briefing"

(citing cases)). Even if we might eventually be able to devise a framework that

incorporates peremptory challenges in some form while adequately addressing the

problems described below, we should at the very least abolish the use of peremptory

challenges until that time. Again, to the extent that members of this court remain

unsure, the proper course of action is to request further briefing, not to ignore the

problem.

          II.   THE NEED TO ABOLISH PEREMPTORY CHALLENGES

        We must abolish peremptory challenges in the courts of this state. Our system

of voir dire and juror challenges, including causal challenges and peremptory

challenges, is intended to secure impartial jurors who will perform their duties fully

                                             7
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

and fairly. In practice, however, litigants generally use peremptory challenges to

remove qualified and fair jurors whom they deem likely to favor the other side in a

close case. Many such challenges are based on nothing more than racial stereotypes

or generalizations. But there is no accurate and reliable way to identify which

peremptory challenges are based on race and which are not. In addition, peremptory

challenges contribute to the underrepresentation of minority groups on juries, impose

substantial administrative costs, result in less effective juries, and amplify resource

disparity in litigation-without any substantiated benefits.

       The peremptory challenge was first created in England to serve purposes that

are now irrelevant and outdated, and it was adopted in the Washington Territory

without substantial debate, at a time when racial minorities and women were

completely ineligible for jury service. Peremptory challenges have been used in

Washington since that time but without any serious consideration of their usefulness,

and they remain an optional trial procedure subject to our plenary oversight. To

prevent ongoing violations of the federal and state constitutions, and more generally

as a matter of policy, we should abolish peremptory challenges in this state.

        Many jurists and scholars have called for the elimination of peremptory

challenges but no jurisdiction in the United States has been willing to be the first to

take that necessary step. See, e.g., Flowers v. State, 947 So. 2d 910, 937-39 (Miss.

2007). It should be remembered that in 1911, Washington became only the second

state in the nation to allow women to serve on juries. See Joanna L. Grossman,

                                             8
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 STAN. L.

REV. 1115, 1135 n.l18 (1994) (citing LAWS OF 1911, ch. 57, § 1). Prior to that time,

the Supreme Court of the Washington Territory proved unwilling to break free from

the long standing and entrenched legal tradition of all-male juries. See Harland v.

Territory, 3 Wash. Terr. 131, 137, 13 P. 453 (1887) (Turner, J.), overruling

Rosencrantz v. Territory,2 Wash. Terr. 267, 5 P. 305 (1884); see also Rosencrantz, 2

Wash. Terr. at 278-79, 281 (Turner, J., dissenting) (arguing that trial by jury at

common law properly required "the jury should be composed of men" because

"inherent and acquired differences between himself and wife in mental and physical

constitution ... will continue to operate to give the husband paramount authority in

the household ... until an upheaval of nature has reversed the position of man and

woman in the world"). A long standing but antiquated legal tradition should never

blind us to the paramount need to ensure that our trial procedures are just. Nor should

any progress we have made blind us to the need for further progress. See id. at 278-79

("It is said that the rights of the weaker sex ... are more regarded than in the days of

Blackstone; and that the theory of that day ... has been exploded by the advanced

ideas of the nineteenth century. This may be true. No man honors the sex more than

I. None has witnessed more cheerfully the improvement in the laws of the States, and

particularly in the laws of this Territory, whereby many of the disabilities of that day

are removed from them .... I cannot say, however, that I wish to see them perform

the duties of jurors."). It is time once again for Washington to shed an antiquated and

                                             9
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

unjust rule and to lead the nation in the pursuit of justice and equality in jury

selection.

    I. Voir Dire and Juror Challenges

       To understand the role of peremptory challenges in jury selection, we must first

consider the purposes and general framework of jury selection as a whole. The

underlying goal of the jury selection process is "to discover bias in prospective jurors"

and "to remove prospective jurors who will not be able to follow [] instructions on the

law," and thus, to ensure an impartial jury, a fair trial, and the appearance of fairness.

State v. Davis, 141 Wn.2d 798, 824-26, 10 P.3d 977 (2000). The jury selection

process includes the questioning of jurors during voir dire and the exercise of causal

and peremptory challenges to remove individual prospective jurors from the venire,

until a sufficient number of qualified jurors have been designated for service in the

case. See CrR 6.3, 6.4, 6.5; CR 47; RCW 4.44.120-.250. The nature and scope of

voir dire is left largely to the discretion of the trial court. See, e.g., Skilling v. United

States,_ U.S._, 130 S. Ct. 2896, 2917, 177 L. Ed. 2d 619 (2010); Davis, 141

Wn.2d at 825. We have noted that the scope of this process "should be coextensive

with its purpose." State v. Laureano, 101 Wn.2d 745, 758, 682 P.2d 889 (1984),

overruled on other grounds by State v. Brown, 111 Wn.2d 124, 132-33, 761 P.2d 588

(1988).

        Challenges for cause are the primary method of excluding prospective jurors

from service. Unlike peremptory challenges, for which no reason need be given,

                                              10
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

challenges for cause require a showing to the satisfaction of the trial court that a

particular juror is unqualified for service in the case. A "general" causal challenge

alleges that a prospective juror is unqualified to serve in any case because of

insufficient age, lack of citizenship, lack of local residency, inability to sufficiently

communicate or comprehend, disenfranchisement, or a substantial and material

insufficiency in mind or body. See RCW 4.44.150, .160; RCW 2.36.070; see also

CrR 6.4( c)(1 ), (2). A "particular" causal challenge alleges that a prospective juror is

unqualified to serve in the particular case before the court, due to a blood relation,

other special relationship, or personal interest that renders the prospective juror

unqualified as a matter of law ("implied bias"); or due to inability to be impartial in

fact ("actual bias"); or due to some bodily condition that renders the juror unable to

serve in the particular case. See RCW 4.44.150, .170, .180, .190; see also, e.g., State

v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). Jurors also may be excused

"upon a showing of undue hardship, extreme inconvenience, public necessity, or any

reason deemed sufficient by the court .... " RCW 2.36.100(1); State v. Roberts, 142

Wn.2d 471, 519, 14 P.3d 713 (2000).

        One primary purpose of the voir dire process is to determine whether

prospective jurors harbor "actual bias" and are thus unqualified to serve in the case.

See, e.g., Tharp, 42 Wn.2d at 499. To be free from actual bias, a juror must be able to

(1) set aside personal beliefs, opinions, or values insofar as is necessary to follow the

law and decide the case fairly, see, e.g., Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct.

                                             11
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

1639,6 L. Ed. 2d 751 (1961); State v. Moody, 18 Wash. 165, 169-70, 51 P. 356

( 1897); (2) adjudicate disputed factual issues based solely on the evidence that is

allowed and presented at trial, see, e.g., Skilling, 130 S. Ct. at 2913; State v. Patterson,

183 Wash. 239,246,48 P.2d 193 (1935); and (3) be free from the undue influence of

any special relationships or personal interests (even if such relationships or interests

do not qualify as implied bias), see Stinson v. Sachs, 8 Wash. 391, 393, 36 P. 287

(1894).

       In any given case, the appropriate resolution of a challenge for actual bias is

left to the discretion of the trial court. See, e.g., Reynolds v. United States, 98 U.S. (8

Otto) 145, 155, 25 L. Ed. 244 (1878); Skilling, 130 S. Ct. at 2923-24; State v. Gilcrist,

91 Wn.2d 603, 611, 590 P.2d 809 (1979). A deferential standard of review is

appropriate for two primary reasons. First, an adjudication of actual bias usually will

incorporate factual findings and a consideration of the totality of the circumstances.

See Patton v. Yount, 467 U.S. 1025, 1036 n.12, 104 S. Ct. 2885, 81 L. Ed. 2d 847

(1984); Patterson, 183 Wash. at 244-45. For example, a juror's mere assertion that

she or he is impartial (or is overly biased) is not dispositive, in part because jurors

may not fully appreciate or accurately state the nature of their own biases. See, e.g.,

Skilling, 130 S. Ct. at 2925; Wainwright v. Witt, 469 U.S. 412, 424-25, 105 S. Ct. 844,

83 L. Ed. 2d 841 (1985); Patterson, 183 Wash. at 245; Moody, 18 Wash. at 169.

Second, there is no rule of general applicability that can be effectively constructed to

govern determinations of actual bias. See Irvin, 366 U.S. at 724-25 (noting that

                                             12
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

"' [i]mpartiality is not a technical conception"' and there is no "'ancient and artificial

formula"' or "'particular tests"' by which to determine actual bias (quoting United

States v. Wood, 299 U.S. 123, 145-46, 57 S. Ct. 177, 81 L. Ed. 78 (1936))). In some

cases, whether a given juror must be excluded will be "'fairly debatable"' and thus

will remain subject to the trial court's discretion. State v. Sisouvanh, 175 Wn.2d 607,

624, 290 P.3d 942 (2012) (internal quotation marks omitted) (quoting Walker v.

Bangs, 92 Wn.2d 854, 858,601 P.2d 1279 (1979)); compare Gilcrist, 91 Wn.2d at

611 (in suit brought by two prison inmates, no abuse of discretion in refusing to

exclude grounds keeper of junior college who had previously worked with some

inmates taking classes and "didn't like the way the inmates 'conducted themselves'

there or 'the way they took care of equipment"'), with Beach v. City of Seattle, 85

Wash. 379,384, 148 P. 39 (1915) (in suit by plaintiffs injured in transit from social

dance, no abuse of discretion in excluding juror who "was decidedly opposed to

dances"). But in other cases, the need to excuse a juror for actual bias will be so

apparent that the trial court's refusal to do so will be deemed an abuse of discretion.

See, e.g., State v. Parnell, 77 Wn.2d 503, 507-08, 463 P.2d 134 (1970) (abuse of

discretion in failing to exclude juror who had attended criminal defendant's

preliminary hearing and then gave an "obviously hostile answer" to defense counsel's

question on the subject), overruled on other grounds by State v. Fire, 145 Wn.2d 152,

 163, 34 P.3d 1218 (2001).



                                             13
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       The allowance of causal challenges remains the primary method by which we

ensure impartial juries in this state. There is no limit on the number of causal

challenges allowed. The basis for a causal challenge must be specified and proved, in

order to create a sufficient record for appeal, to avoid "sharp practice" and to serve the

ends of justice. State v. Biles, 6 Wash. 186, 188,33 P. 347 (1893); see State v. Lloyd,

138 Wash. 8, 14-15,244 P. 130 (1926) (rules of evidence apply); RCW 4.44.240. In

contrast, litigants are afforded a limited number of peremptory challenges and

generally need not specify any reasons for such challenges. See CrR 6.4(e)(1); RCW

4.44.130, .140. The use of peremptory challenges is intended to supplement our

overarching framework of excluding unqualified jurors for cause.

    2. Peremptory Challenges in Practice

       The actual use of peremptory challenges within our jury selection process

presents a divergence between theory and practice. In theory, peremptory challenges

are supposed to further the goal of an impartial jury. See Press-Enterprise Co. v.

Superior Court, 464 U.S. 501, 510 n.9, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) ("The

process is to ensure a fair impartial jury, not a favorable one."); State v. Larkin, 130

Wash. 531, 533, 228 P. 289 (1924), aff'd, 132 Wash. 698, 232 P. 695 (1925). In

practice, however, litigants simply use peremptory challenges to remove the

prospective jurors they perceive to be least favorable to their position, regardless of

whether such prospective jurors possess biases so severe as to render their

participation unfair. See, e.g., Larkin, 130 Wash. at 533; see also, e.g., JAMES J.

                                            14
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

GOBERT & WALTER E. JORDAN, JURY SELECTION: THE LAW, ART, AND SCIENCE OF

SELECTING A JURY xii (2d ed. 1990) ("Attorneys on each side [] vie to choose jurors

favorably disposed .... The key is to identify subconscious partiality, since blatantly

partial jurors will in effect identify themselves and can be challenged for cause.");

WALTER F. ABBOTT, ANALYTIC JUROR RATER 1, 21 (1987); 2 ANN FAGAN GINGER,

JURY SELECTION IN CIVIL & CRIMINAL TRIALS§ 18.2, at 1022 (1985) ("Despite its

theoretical function, the voir dire is in reality a contest between the two adversaries

toward the goal of selecting the jury that is most favorable to [either] side.").

       The reason trial attorneys are so concerned with favoritism in jury selection is

because most cases that go to trial are close cases. When the likely outcome is clear,

parties tend to settle, either to avoid the costs of litigation or to obtain some other

benefit, such as a lenient sentencing recommendation. Cf V. HALE STARR & MARK

MCCORMICK, JURY SELECTION at 3-3 (4th ed. 20 10) (vast majority of cases settle).

Further, judges generally do not allow cases to go to trial unless there is a reasonable

factual dispute for the jury to resolve. See CR 56; CrR 8.3(c). The only exception is a

criminal case involving overwhelming evidence of guilt, which still must go to a jury.

But if a case is not close, then the subtle biases of each juror almost certainly will not

affect the final verdict. See ABBOTT, supra, at 112; GOBERT & JORDAN, supra, at xii.

        The task of determining the favorability of jurors is difficult, in part because of

the limited information available about each juror and his or her relevant knowledge,

beliefs, opinions, and values, and also because of the difficulty of predicting a given

                                             15
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

individual's likely beliefs and opinions about any particular case. See STARR &

McCORMICK, supra, at 16-12. There is only limited time to extract relevant

information during voir dire. Jurors sometimes conceal or are ignorant about their

own biases, and answers are sometimes incomplete, misleading, or false. See Ginger,

supra, at 1034, 1095; GOBERT & JORDAN, supra, at 117, 459. Some attorneys

conduct external investigations to learn more about the members of the venire, but this

is often impossible, impractical, unreliable, or unethical. See GOBERT & JORDAN,

supra, at 106-27. Although directly relevant information does sometimes become

available--as in cases involving challenges for cause-most of the time even directly

relevant information does not actually disclose the extent of a particular juror's

underlying bias. In other words, the significance of such information usually remains

at least fairly debatable if not entirely ambiguous or immaterial.

        With limited information and time, and a lack of any reliable way to determine

the subtle biases of each prospective juror, attorneys tend to rely heavily on

stereotypes and generalizations in deciding how to exercise peremptory challenges.

See, e.g., TED A. DONNER & RlCI-IARD K. GABRIEL, JURY SELECTION: STRATEGY AND

SCIENCE 1-7 to 1-8 (3d ed. 2007); JEFFREY T. FREDERICK, MASTERING VOIR DIRE

AND JURY SELECTION 24 ( 199 5); STARR & MCCORMICK, supra, at 17-6. This

phenomenon is endemic. See, e.g., STARR & MCCORMICK, supra, at 16-7 ("Since

widely-accepted, strongly-fixed, deeply-rooted stereotypes allow speedy evaluations

 and judgments, and since the legal system constantly places lawyers in situations that

                                            16
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

require them to exercise peremptory challenges quickly, demographic stereotypes

have become the obligatory foundation for decisiorunaking injury selection."). The

precise way that stereotypes or generalizations are used, however, depends upon the

resources and sophistication of each trial attorney.

       The majority of attorneys rely on instinct, lore, and anecdotal experience-used

in combination with whatever information about prospective jurors is obtained prior

to and during voir dire-to guide the use of peremptory challenges. See GOBERT &

JORDAN, supra, at 77; STARR & MCCORMICK, supra, at 7-6. These attorneys tend to

rely heavily on speculative and unfounded stereotypes and generalizations that

masquerade as insight or wisdom; indeed, the "old lawyer's lore" passed down from

one generation to the next is rampant with such dubious and sweeping declarations.

STARR & MCCORMICK, supra, at 5.1-5; see, e.g., ROBERT A. WENKE, THE ART OF

SELECTING A JURY 70-71, 76-77, 84-85 (1979) (recommending that civil plaintiffs

seek out "[r]elatively unskilled government workers" and that civil defendants seek

out "[c]hildless persons," among other unsupported generalizations); Frederick, supra,

at 23 (collecting examples). Often this approach involves the application of a simple

and straightforward stereotype concerning a single demographic characteristic. See,

e.g., STARR & MCCORMICK, supra, at 5.1-4 ("Williams ... reduced [the jury pool] by

following his own guidelines: 'strike Scandinavians (too pro-government), keep Irish

(pro-underdog)' .... "(quoting Evan Thomas, The Man to See: Edward Bennett

Williams-Legendary Trial Lawyer, Ultimate Insider, WASHINGTON MONTHLY (Oct.

                                            17
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

1991 ))). Sometimes the attorney instead relies on stereotypes or generalizations

concerning a synthesis of multiple characteristics. See, e.g., WENKE, supra, at 76

("Older members of minority groups tend to be conservative and prosecution-minded

if they have had longtime stable careers."); id. at 69 ("[S]eekjurors who identify with

your client, who tend to have similar characteristics."); see also ABBOTT, supra, at 12

(same).

       Attorneys with more resources and greater sophistication have gone from using

simplistic old lawyer's lore to using jury consultants and applying social science

methods to jury selection. The field of jury consultation emerged in the 1970s and

grew dramatically in the 1980s and 1990s as various methods and principles of social

psychology were applied to trial strategy with apparent success. See STARR &

MCCORMICK, supra, at 5.1-13 to 5.1-36; DONNER & GABRIEL, supra, at 5-6 to 5-11.

Jury consultants now use a variety of techniques to assist trial attorneys injury

selection, including community surveys, mock juries, and focus groups. See, e.g.,

STARR & MCCORMICK, supra, at 7-1 to 16-32; GOBERT & JORDAN, supra, at 78.

Based on some or all of these various methods, jury consultants usually develop a

"statistical profile" to assist the trial attorney specifically in the exercise of

peremptory challenges. STARR & McCORMICK, supra, at 16-3 (noting that this

statistical profile is "[o]ne of the primary reasons trial attorneys hire jury/trial

consultants"); GOBERT & JORDAN, supra, at 89; see also Ginger, supra, at 1106

(providing example of model juror profile for hypothetical police misconduct case).

                                              18
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

The statistical profile often is complex and reflects the synthesis of a number of

demographic and other characteristics. See STARR & MCCORMICK, supra, at 7-47

("Regression analysis, interaction analysis, or discriminant analysis are the statistical

programs most frequently used to develop these profiles."). The profile will be used

to select which jurors to challenge and often will guide the attorney's strategies and

questioning during voir dire. See GOBERT & JORDAN, supra, at 90. Attorneys also

sometimes use jury consultants "to evaluate juror nonverbal responses to voir dire

questioning and to identify the likely group dynamics of the jury." !d. at 456

(footnote omitted). Some attorneys instead try to utilize social science methods on

their own and on a smaller scale, without incurring the substantial expense of a

professional jury consultant. See, e.g., DONNER & GABRIEL, supra, at 6-25; GOBERT

& JORDAN, supra, at 103-105; see also ABBOTT, supra, at 22 (providing a universal

"juror rater" for practitioners to use in any case based on "an ambitious effort to

obtain systematically collected social science data on American values and

characteristics").

        Attorneys who employ these social science methods still rely heavily on

stereotypes or generalizations. Judgments made about each individual prospective

juror are based on information collected about other individuals. In other words, each

prospective juror is presumed to be similar in relevant respects to those individuals

who contributed to the available statistical data and possessed some of the known

characteristics of the prospective juror. See, e.g., ABBOTT, supra, at 58. Although

                                             19
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

these generalizations are based on more than mere intuition or anecdote, they remain

speculative as applied to any particular prospective juror. Further, a great deal of

judgment must be exercised in collecting relevant data (e.g., whom to ask, what to

ask, and how to ask it), in deciding how to interpret the data, and also in applying the

results. See STARR & MCCORMICK, supra, at 5.1-17; ABBOTT, supra, at 78; DONNER

& GABRIEL, supra, at 6-24. It is perhaps not surprising then to find that "empirical

studies testing the predictive value of scientific jury selection have produced

inconclusive findings." Franklin Strier & Donna Shestowsky, Profiling the Profilers:

A Study of the Trial Consulting Profession, Its Impact on Trial Justice, and What,     if
Anything, To Do About It, 1999 WIS. L. REV. 441, 458-64 (discussing and collecting

studies); see also Dru Stevenson, Jury Selection and the Coase Theorem, 97 IOWA L.

REV. 1645, 1653 n.38 (2012) (same); Reid Hastie, Is Attorney-Conducted Voir Dire

an Effective Procedure for the Selection ofImpartial Juries?, 40 AM. U. L. REV. 703,

718-20 (1991) (same).

        In sum, attorneys using a wide variety of approaches to jury selection all rely

heavily on stereotypes and generalizations to guide the use of peremptory challenges,

in an attempt to obtain the most favorable jury possible in any given case. Rough and

rapid judgments about prospective jurors are made based on whatever characteristics

are observable or otherwise known and which the attorney believes are relevant in

some way. Prospective jurors are then excused based solely on such superficial

judgments, notwithstanding the fact that whatever directly relevant information is

                                            20
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

available either provides no indication that the prospective juror is unqualified or

provides some indication that is only fairly debatable at best.

    3. Racial Discrimination in Peremptory Challenges

       Unsurprisingly, peremptory challenges often are motivated by racial

stereotypes and generalizations. The perception of race still heavily influences many

social observations and judgments in our society. Regardless of whether an attorney

uses intuition, old lawyer's lore, or jury consultation, we should not be surprised to

find that the resultant judgments about prospective jurors are based in whole or in part

on race. Indeed, the existing evidence discussed below shows that racial

discrimination is prevalent in the use of peremptory challenges in Washington and

elsewhere, and our current legal framework necessarily fails to address this problem.

        Peremptory challenges can be racially discriminatory in numerous ways. First,

a peremptory challenge can be based on a straightforward, race-based stereotype or

generalization. For example, an attorney might seek to remove a prospective juror

because of an antiquated belief that a member of the prospective juror's racial group

must be or probably is unable to adequately serve as a juror due to insufficient

integrity, intelligence, or judgment. See, e.g., Norris v. Alabama, 294 U.S. 587, 598-

99, 55 S. Ct. 579, 79 L. Ed. 1074 (1935); Neal v. Delaware, 103 U.S. (13 Otto) 370,

402, 26 L. Ed. 567 (1880) (Field, J., dissenting). As another example, an attorney

might challenge a prospective juror due to a belief that a member of the prospective

juror's racial group necessarily or probably has a certain belief, opinion, or value that

                                            21
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

renders the prospective juror relatively unfavorable. See, e.g., Howard v. Senkowski,

986 F.2d 24, 25 (2d Cir. 1993) (prosecutor believed that the fact that prospective

jurors were black "made them sympathetic to the defendant"); McCormick v. State,

803 N .E.2d 1108, 1111 (Ind. 2004) (prosecutor speculated that prospective juror

would find it difficult passing judgment against a member of his own racial group);

Frederick, supra, at 23-24. Straightforward racial stereotypes also can involve a

synthesis of multiple characteristics, only one of which is race. See Leahy v. Farman,

177 F. Supp. 2d 985, 997 (N.D. Cal. 2001) ("My experience is that native Americans

who are employed by the tribe are ... somewhat suspicious of the system."); Payton

v. Kearse, 329 S.C. 51, 55-56 & n.l, 495 S.E.2d 205 (1998) (party using peremptory

challenge against alleged '"redneck"' was "sterotyp[ing] a subgroup of the white

race"); Owens v. State, 531 So. 2d 22, 24 (Ala. Crim. App. 1987) (stereotype

involving age, single status, and race). Various straightforward racial stereotypes and

generalizations remain prevalent today. See STARR & McCORMICK, supra, at 17-4

("Given the strength of the beliefs people, including trial lawyers, assign for the effect

of race on decision-making, it is nearly impossible to convince them that in many

cases, race plays a far less significant role than expected."); Alafair S. Burke,

Prosecutors and Peremptories, 97 IOWA L. REV. 1467, 1468 & n.2 (2012).

        Second, a peremptory challenge can be based on a simple or complex statistical

juror profile that incorporates race as an indicator of favorability. It appears to be

common practice today to track race as a relevant demographic characteristic in

                                            22
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

developing statistical juror profiles. See STARR & McCORMICK, supra, at 7-6, 7-35,

17-19; DONNER & GABRIEL, supra, at 6-23; GOBERT & JORDAN, supra, at 82;

ABBOTT, supra, at 13, 48-50. Race currently does correlate, at least roughly, to

various beliefs, opinions, and values held in our society. See, e.g., STARR &

McCORMICK, supra, at 16-23, 17-5 (noting for example that "people of color are

twice as likely as whites to believe that 'race relations in the United States are poor"');

see also Matt Haven, Reaching Batson's Challenge Twenty-Five Years Later:

Eliminating the Peremptory Challenge and Loosening the Challenge for Cause

Standard, 11 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 97, 97 (2011). But the

modern view among at least some jury consultants-is-that-in-jury selection today,

"[r]ace almost never profiles, except in cases specifically referring to racial issues"

and "[r]ace seems to be an ever decreasing factor in determining reactions to case

issues." STARR & MCCORMICK, supra, at 16-3; see also DONNER & GABRIEL, supra,

at 1-6 to 1-7. Race no longer regularly "profiles" in part because jury consultants

have begun identifying other characteristics in each case-primarily life

experiences-they believe to be far more predictive of whether a prospective juror is

favorable. STARR & McCORMICK, supra, at 16-3, 17-4 to 17-6. At the same time,

attorneys remain skeptical and resistant to the notion of excluding race from

consideration as a potential indicator offavorability. See id. at 7-6, 17-4; cf ABBOTT,

supra, at 2 (noting prior "widespread agreement that demographic and social

characteristics ... are likely to determine values which affect the responses of jurors

                                            23
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

to the case"). Further, most attorneys do not have the time or resources to have

consultants identify the particular life experiences that might be more effective at

indicating favorability in a given case. See id. at 16-6 to 16-8, 16-21 to 16-26;

GOBERT & JORDAN, supra, at 105; Stevenson, supra, at 1654 n.39; cf ABBOTT,

supra, at 49 (race included in universal profiler). The use of race in statistical juror

profiling remains an ongoing practice.

       Third, a peremptory challenge can be based on the desire to obtain a particular

racial dynamic on the jury as a whole. See, e.g., Miesner v. State, 665 So. 2d 978,

980-81 (Ala. Crim. App. 1995) (prosecutor "'wanted a balanced jury"' and thus

"'wanted some white people on the jury"' (some emphasis omitted)). Although the

common "tendency in selecting a jury is to 'consider each juror on his or her individual

merits," the more sophisticated attorneys, and particularly those employing social

science methods, also consider group dynamics. GOBERT & JORDAN, supra, at 451,

456; see Frederick, supra, at 155-57. But when an attorney uses a peremptory

challenge in an attempt to obtain a particular group dynamic with regard to race, the

attorney is engaging in a distinct form of racial discrimination.

        Finally, a peremptory challenge can be based on unconscious racial bias. In

other words, race can subconsciously motivate a peremptory challenge that the

attorney genuinely believes is race-neutral. See lead opinion at 13-17. As one

example among many, an attorney might exercise a peremptory challenge based

solely on his "gut feeling," unaware that the race of the challenged juror caused or

                                             24
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

substantially contributed to the gut feeling. As another example, an attorney might

believe that the basis of her challenge is a prospective juror's answer to a particular

question, unaware that she would neither have asked the question nor have brought

the challenge against that prospective juror had he been of a different race. In such

circumstances, the challenge is motivated at least in part by underlying racial bias, and

thus, is racially discriminatory.

       The racially discriminatory use of peremptory challenges is occurring regularly

throughout this state. Even after Batson, substantial portions of lawyers, judges, and

court personnel throughout Washington observed that, to varying degrees, attorneys

"use peremptory challenges systematically to eliminate minorities from juries."

WASHINGTON STATE MINORITY AND JUSTICE TASK FORCE, FINAL REPORT 45, 52,

216, 218, 220, 226-27, 234, 240 (Dec. 1990), available at

http://www.courts.wa.gov/committee/pdf/TaskForce.pdf. Most concerning is that a

full42.6 percent of surveyed lawyers reported that prosecutors in Washington either

"sometimes" or "often" use peremptory challenges to systematically exclude

minorities from juries. See id. at 226. This collective observation cannot be brushed

aside and is not surprising given the degree to which racial stereotypes and

generalizations are relied upon in jury selection generally and in the use of

peremptory challenges specifically. It would be na'ive to think that trial attorneys have

abandoned all race-related lore or completely excluded race as a factor when applying

social-scientific methods to jury selection. See, e.g., Michael E. Withey, The

                                            25
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Importance of Connecting with the Jury, in THE JURY: LATEST TECHNIQUES FOR

SELECTING AND PERSUADING JURIES 2, 2-3 (Wash. State Trial Lawyers Ass'n,

Continuing Legal Educ. May 16, 2001) (on file with the Washington State Law

Library) (set of legal education materials provided to lawyers throughout Washington

explaining the concept of a jury survey and noting that "[m]ost surveys will test

attitudes toward issues by certain demographic characteristics, including gender, age,

[and] race"). Race continues to play a significant role in the use of peremptory

challenges in Washington.

       Evidence from other jurisdictions confirms that racial discrimination in the use

of peremptory challenges is widespread. Numerous studies in other states have

consistently and uniformly shown a significant influence of race on the use of

peremptory challenges in actual practice. Racial disparities in peremptory usage have

been documented in the courts of Alabama, Georgia, Illinois, Louisiana, North

Carolina, Pennsylvania, and Texas. See EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL

DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 14 (2010) (noting

studies finding substantial racial disparities in peremptory usage in Alabama, Georgia,

and Louisiana); Catherine M. Grosso & Barbara O'Brien, A Stubborn Legacy: The

Overwhelming Importance ofRace in Jury Selection in 173 Post-Batson North

Carolina Capital Trials, 97 IOWA L. REV. 1531, 1538-40 & n.55 (2012) (discussing

studies of peremptory challenge usage finding racial disparities in Illinois, Louisiana,

North Carolina, Pennsylvania, and Texas). Many of these studies have found that

                                           26
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

even after controlling for numerous other potentially relevant factors, race remains

highly determinative of peremptory usage. See GROSSO & O'BRIEN, supra, at 1533,

1547, 1552-54 (review of capital trials in North Carolina finding that even after

controlling for 65 other variables, "a black venire member had 2.48 times the odds of

being struck by the state as did a venire member of another race"); STARR &

MCCORMICK, supra, at 17-7 to 17-8 (discussing a comprehensive review of criminal

trials in Dallas finding widespread racial disparities and also finding that '"no factor

reduced the importance of race"' (quoting Steve McGonigle et al., Jurors' Race A

Focal Point For Defense: Rival Lawyers Reject Whites at Higher Rate, THE DALLAS

MORNING NEWS, Jan. 24, 2006)); David C. Baldus et al., The Use ofPeremptory

Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. PA. J.

CONST. L. 3, 46, 60, 72, 121 (2001) (review of Philadelphia capital murder cases

finding that even after controlling for numerous variables "venire member race was a

major determinant in the use of peremptories").

       Laboratory studies provide even further evidence that racial discrimination

underlies the use of peremptory challenges. In one recent study, attorneys were

presented with a criminal trial scenario along with descriptions of two prospective

jurors and were instructed to decide as a prosecutor which of the two prospective

jurors to challenge peremptorily. See Samuel R. Sommers & Michael I. Norton,

Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of

Peremptory Use and the Batson Challenge Procedure, 31 LAW &HUM. BEHAV. 261,

                                            27
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

266-67 (2007). In one condition, the first prospective juror was depicted as white and

the second prospective juror as black; in a second condition, the races were reversed

but the underlying information remained the same. I d. When the first profile was

black, attorneys chose to challenge that prospective juror 79 percent of the time; when

that same profile was white, attorneys challenged that prospective juror only 43

percent of the time. Id. at 267. Likewise, when the second profile was depicted as

black, attorneys challenged that prospective juror 57 percent of the time; when that

same profile was white, attorneys challenged that prospective juror only 21 percent of

the time. Id. Thus the attorneys, acting as prosecutors, were significantly more likely

to challenge a juror profile when it was depicted as a black prospective juror as

opposed to a white prospective juror, all else being equal. The experimenters also

found similar effects among college students and law students. Id. Further, the

experimenters asked each participant to explain his or her choice of whom to strike.

A full 96 percent of participants cited relevant underlying substantive information

from either profile as "their most important justification," and only 8 percent of the

attorneys (and an even smaller proportion of college students and law students) cited

race as being influential at all. Jd. at 267-68 (explaining that respondents "cited as

their most important justification either Juror #1 's familiarity with police misconduct

or Juror #2's skepticism about statistics"). The experimenters rightly concluded that

their study "provides clear empirical evidence that a prospective juror's race can

influence peremptory challenge use and that self-report justifications are unlikely to

                                            28
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

be useful for identifying this influence .... " Id. at 269. The experimenters also noted

that the findings "are strikingly similar in direction as well as magnitude to

conclusions of archival analyses of real peremptory use." I d. (citations omitted).

Other laboratory studies have found similar effects of race on the use of peremptory

challenges. See GROSSO & O'BRlEN, supra, at 1536-38 (discussing studies).

      Case-by-case adjudication and appellate review under Batson cannot effectively

combat the widespread racial discrimination that underlies the use of peremptory

challenges throughout this state, and thus, such racial discrimination will continue

unabated under our current framework. Batson requires a complaining party to make

a prima facie case of unlawful discrimination, and whenever such a prima facie case

has been made, Batson requires the proponent of the challenge to identify his or her

reasons. See lead opinion at 9. If the proponent's alleged reasons are lawful, the trial

court then must adjudicate whether the challenge is in fact unlawfully discriminatory,

and that determination will be reversed on appeal only if it is clearly erroneous. See

lead opinion at 9-10, 22-23. For numerous reasons, this framework has been and will

continue to be largely ineffective at combating racial discrimination in the use of

peremptory challenges in Washington.

        First, many racially discriminatory peremptory challenges remain unchallenged

and are never subjected to judicial review. In some such cases, the presence of racial

discrimination remains entirely imperceptible to the opposing party and trial judge,

and thus, no objection is raised and the issue is never addressed. Even when racial

                                            29
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

discrimination becomes sufficiently apparent to warrant an objection, opposing parties

often decide not to object. See STARR & MCCORMICK, supra, at 17-15, 17-18, 17-19

(reporting results of a nationwide survey of trial attorneys, including Washington

attorneys); EQUAL JUSTICE INITIATIVE, supra, at 6. Some attorneys are concerned

about alienating other prospective jurors or upsetting opposing counsel or the judge;

others do not have strong feelings about keeping the challenged prospective juror on

the venire and thus accept the peremptory challenge; still others will not raise an

objection unless the racial discrimination is already sufficiently obvious to satisfy a

derilanding trial judge; and some attorneys do not raise a Batson objection because

they are engaging in racial discrimination themselves. See STARR & McCORMICK,

supra, at 17-18 to 17-19 ("'What's good for the goose is good for the gander. We're

taking off one race as fast as they can take off the other. If we challenge them, they

will challenge us."' (quoting survey answers)). Trial judges overseeing such cases

might remain unaware of the appearance of racial discrimination or might simply

want to avoid inviting substantial complications and administrative costs when no

party has objected and judicial review probably would be fruitless. All of this remains

deeply concerning, however, because racial discrimination in the use of peremptory

challenges harms not only litigants but also "the excluded jurors and the community at

large." Powers v. Ohio, 499, U.S. 400, 406, 111 S. Ct. 1364, 113 L. Ed. 2d 411

(1991). Under our current framework, many racially discriminatory peremptory

challenges evade review entirely.

                                            30
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       Second, even if an objection is made, plausible race-neutral reasons are quite

easy to conjure up in any given case, regardless of whether the peremptory challenge

is actually based on racial discrimination and regardless of whether such racial

discrimination is conscious or unconscious. See, e.g., STARR & MCCORMICK, supra,

at 17-11 (quoting one forthright prosecutor as saying, "Very frankly, any attorney

worth his salt can make up something to get over a Batson challenge. And, literally,

[prosecutors] do make it up. We do." (alterations in original) (quoting McGonigle, et

al., supra); SOMMERS & NORTON, supra, at 263 ("Many researchers have

demonstrated that people can offer compelling explanations for their behavior even

when unaware of the factors-such as race-that are actually influential."). Attorneys

are trained to identify distinctions and to provide explanations for conduct. To

overcome a Batson challenge based on alleged racial discrimination, an attorney

merely has to "be careful not to give a reason that also [applies to a prospective juror

of another race] against whom [the attorney does] not exercise a peremptory." Nancy

S. Marder, Batson Revisited, 97 IOWA L. REV. 1585, 1591 (2012); see also, e.g.,

People v. Randall, 283 Ill. App. 3d 1019, 1025-26, 671 N.E.3d 60 (1996) (deriding

"the charade that has become the Batson process," noting that "[t]he State may

provide the trial court with a series of pat race-neutral reasons," and citing numerous

 cases involving a slew of such reasons). Proffered reasons sometimes involve subtle

 observations about a prospective juror's appearance or demeanor, which are easily

 alleged but often extremely difficult to scrutinize. See EQUAL JUSTICE INITIATIVE,

                                            31
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

supra, at 18; Marder, supra, at 1591-92. Further, race often will be one of many

factors actually motivating a challenge, and thus, race-neutral reasons will be readily

available to be included in a true but incomplete explanation. See SOMMERS &

NORTON, supra, at 269. It would be naYve to think that attorneys do not rely on

readily available and plausible race-neutral reasons to circumvent Batson. Under our

current framework, plausible race-neutral reasons remain readily available and

regularly invoked.

       Third, there usually is no way for a trial court to accurately and reliably

determine whether a given peremptory challenge is racially discriminatory. As noted

above, proffered race-neutral reasons are almost always plausible, but not always real

or comprehensive. The circumstances surrounding a given challenge usually will not

resolve the inquiry, and trial judges may be hesitant to question the integrity or self-

awareness of counsel. See lead opinion at 20. Further, social science research tells us

that trial judges generally are unable to accurately and reliably determine credibility

based on demeanor alone, regardless of their confidence in doing so. See, e.g., Paul

Ekman & Maureen O'Sullivan, Who Can Catch a Liar?, 46 AM. PSYCHOLOGIST 913,

913-17 (Sept. 1991) (experimenters presented video clips of individual persons

describing feelings about a movie each was allegedly watching; trial judges performed

only slightly better than chance in determining who was lying about watching the

movie, and confidence was not correlated to performance); see also, e.g., Saul M.

Kassin, Human Judges of Truth, Deception, and Credibility: Confident But

                                            32
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Erroneous, 23 CARDOZO L. REV. 809 (2002). In addition, trial courts generally do not

have the time or resources to review the record in-depth or to conduct statistical

analysis prior to resolving a Batson objection. Such a review of the record rarely

would provide clarity anyhow. Cf SOMMERS & NORTON, supra, at 269 ("We

observed bias against Black venire members only when examining decisions made by

several participants; indeed, for any given participant, we are unable to determine

whether the peremptory was influenced by race or whether the justification provided

was valid. Only in the aggregate does evidence of racial bias emerge .... "). Under

our current framework, trial courts cannot reliably identify individual instances of

racial discrimination in the use of peremptory challenges.

        Fourth, there is no way for appellate courts to provide sufficiently meaningful

review on appeal. An appellate court is in an even worse position than the trial court

to determine whether a particular peremptory challenge was racially discriminatory.

Although an appellate court can conduct a searching review of the cold record and

undertake statistical analysis as appropriate, see lead opinion, App. A, such review

rarely will provide an answer. Even if the appellate court's searching review uncovers

inconsistencies between the race-neutral explanation and the proponent's treatment of

other prospective jurors, the comparable characteristics of the other prospective jurors

might have escaped not only the notice of the trial court but also the notice of the

attorney, who was faced with the complexities and pressures of navigating voir dire

 and jury selection. It will be difficult if not impossible to determine whether the

                                            33
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

attorney overlooked a comparable juror while crafting a post hoc explanation for the

challenge or instead, overlooked that same comparable juror when invoking the

challenge in the first place. Under our current framework, appellate review remains

ineffectual.

       Finally, too many unanswered questions remain under Batson, which will

continue to cause much confusion and impose substantial litigation costs, all without

addressing the underlying problem. See, e.g., DONNER & GABRIEL, supra, at 23-30

("Since Batson was decided, the trial and appellate courts have struggled with the

scope of its application."). For example, it remains unclear exactly which groups are

to be protected from discrimination in jury selection. To date, the United States

Supreme Court has applied the Batson framework only to discrimination "on the basis

of race, ethnicity, or sex." Rivera, 556 U.S. at 153. The extent to which such

protection extends to other groups remains to be determined. See, e.g., DONNER &

GABRIEL, supra, at 3-17 to 3-18,23-46 (age, disability, religion); Mary A. Lynch, The

Application ofEqual Protection to Prospective Jurors with Disabilities: Will Batson

Cover Disability-Based Strikes?, 57 ALB. L. REV. 289 (1993) (disability); Kathryne

M. Young, Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of

Modern Voir Dire, 48 WILLAMETTE L. REv. 243 (2011) (sexual orientation); Maggie

Elise O'Grady, A Jury of Your Skinny Peers: Weight-Based Peremptory Challenges

and the Culture ofFat Bias, 7 STAN. J. C.R. & C.L. 47 (2011) (weight); Note, Due



                                           34
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Process Limits on Prosecutorial Peremptory Challenges, 102 HARV. L. REV. 1013,

1020 (1989) (noting that "courts have pointedly disagreed" on these issues).

       As a second example, it remains unclear how to determine whether a prima

facie case has been established, and in particular, how that determination should be

reviewed on appeal. The United States Supreme Court has explained that a prima

facie case is established whenever the circumstances "permit the trial judge to draw an

inference that discrimination has occurred." Johnson v. California, 545 U.S. 162,

170, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). The Court in Johnson emphasized

that trial courts should not be "engaging in needless and imperfect speculation when a

direct answer can be obtained by asking a simple question." !d. at 172, 173. Thus, it

would appear that a trial court's discretion is relatively limited at the first step of the

Batson inquiry: technically, discrimination is inferable any time that the eventual

composition of the jury could change in a relevant way as a result of the disputed

challenge. But the Court in Johnson did not explicitly spell out such a lenient

standard, and in dicta we have since interpreted the prima facie case requirement as

being more demanding and have emphasized that the trial court's determination at

step one of Batson is discretionary. See State v. Thomas, 166 Wn.2d 380, 397-98, 208

P.3d 1107 (2009); State v. Hicks, 163 Wn.2d 477,490-93, 181 P.3d 831 (2008).

Understandably, we have had some difficulty determining the precise outer limits of

that discretion, see State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010), and such

struggles are bound to continue under our current framework with no end in sight, see,

                                              35
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

e.g., State v. Meredith, 173 Wn.2d 1031, 275 P.3d 303 (2012) (accepting review "on

the issue of the scope of the bright line rule articulated in [Rhone]").

       As a third example, it remains unclear just how direct or substantial the

influence of race must be in order to render a peremptory challenge racially

discriminatory under Batson. Mere reliance on "statistical support" does not

immunize a peremptory challenge from attack, and any attorney using peremptory

challenges must "look beyond the surface before making judgments about people that

are likely to stigmatize as well as to perpetuate historical patterns of discrimination."

J.E.B.v. Alabama, 511 U.S. 127, 139 n.11, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).

But if a detailed and complex statistical juror profile includes race among a wide

variety of other factors, is a resulting challenge necessarily racially discriminatory

under Batson? What if the attorney would have challenged the same prospective juror

even if the prospective juror's race had not matched the complex and otherwise

matching profile? Or more generally, what if the attorney has two separate and

independently sufficient reasons for the challenge, only one of which is based on

race? See Kurtis A. Kemper, Annotation, Adoption and Application of "Tainted"

Approach or {(Dual Motivation" Analysis in Determining Whether Existence of Single

Discriminatory Reason for Peremptory Strike Results in Automatic Batson Violation

When Neutral Reasons Also Have Been Articulated, 15 A.L.R.6TH 319 (2012). What

if the attorney investigates race but race does not end up as a factor on the eventual

statistical profile used? Or what if the attorney considers the potential significance of

                                             36
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

race in order to identify other relevant characteristics that eventually guide her

peremptory usage? Cf STARR & McCORMICK, supra, at 16-25 ("[L]ook at race and

its subcategories and at the case issues to identify any life experience or attitude that

might cause concern in jury selection." (emphasis omitted)). What if, based on a

statistical profile, an attorney focuses some of his voir dire questioning on members of

a particular race, and then unearths compelling race-neutral reasons to challenge some

of them, as predicted by the profile? These questions all reflect the complex nature of

peremptory challenges in actual practice and present difficulties that our current

framework may not be equipped to handle.

       As a final example, it remains unclear whether unconscious racial

discrimination is prohibited under Batson. See lead opinion at 19-20 & n.8.

Unconscious racial discrimination is extremely inequitable, harmful, and unjust-but

also fairly ubiquitous and relatively blameless at an individual level. Unconscious

bias is not easily deterred, because the biased individual is not aware of its presence.

Further, it is nearly impossible for any observer to identify the presence of

unconscious bias in any particular instance. See, e.g., SOMMERS & NORTON, supra, at

269. That said, if peremptory challenges based on unconscious racial bias are

prohibited, and if trial courts are made aware of the prevalence of unconscious bias in

general, they might be relatively more likely to scrutinize proffered race-neutral

explanations and to fully appreciate the potential presence of racial discrimination in

the use of peremptory challenges. See lead opinion at 21. Still, any gains would be

                                             37
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

modest at best. And regardless, the distinction between conscious and unconscious

bias would remain largely irrelevant on appeal, because circumstantial evidence of

unconscious bias and circumstantial evidence of conscious bias generally is the same

evidence, and only in the rarest of cases will a finding of unconscious bias (or lack

thereof) be compelled while a finding of conscious bias (or lack thereof) is not. It

should be clear by now that unconscious bias is simply one problem among many.

Focusing on any such secondary problem simply distracts from the overarching need

to abolish peremptory challenges entirely.

       In sum, our current framework will continue to engender confusion and

needless administrative and litigation costs, while racial discrimination in the use of

peremptory challenges-both conscious and unconscious-continues unabated.

    4. The Additional Costs ofPeremptory Challenges

       The use of peremptory challenges is harmful in this state not only because of

the ongoing racial discrimination involved, but also because of a wide variety of other

resulting injustices-with no substantiated benefits. In particular, the use of

peremptory challenges contributes to the historical and ongoing underrepresentation

of minority groups on juries, broadly increases administrative and litigation costs,

results in less effective and less socially beneficial juries, and amplifies resource

disparities in litigation. On the other hand, the use of peremptory challenges produces

no substantiated systemic benefits.



                                             38
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       First, the use of peremptory challenges contributes to the underrepresentation

of minority groups on juries, even in the absence of purposeful discrimination. Racial

minorities in particular are underrepresented on juries for a wide variety of reasons,

including the use of peremptory challenges. See, e.g., HIROSHI FUKURAI ET AL.,

RACE AND THE JURY: RACIAL DISENFRANCHISEMENT AND THE SEARCH FOR JUSTICE

3-4, 34,40-42 (1993) (collecting studies and identifying various causes that have a

"cumulative effect"); WASHINGTON STATE CENTER FOR COURT RESEARCH, JUROR

RESEARCH PROJECT: REPORT TO THEWASHINGTON STATE LEGISLATURE 5-6, 18

(Dec. 24, 2008) (showing underrepresentation of various racial minorities injury

pools in Clark, Des Moines, and Franklin counties), available at

http://www .courts. wa.gov/wsccr/docs/Juror%20Research%20Report%20Final. pdf.

This ongoing underrepresentation reflects a history of complete exclusion from jury

service and subsequent resistance to efforts at inclusion. See Rosencrantz, 2 Wash.

Terr. at 278 (Turner, J., dissenting) (noting that "trial by jury at common law"

required "'free and lawful men'" as jurors, and "if he be a slave or bondman, this is

defect of liberty"); James Forman, Jr., Juries and Race in the Nineteenth Century, 113

YALE L.J. 895, 910 (2004) ("It is believed that 1860 was the first year in which

African Americans served on juries, in either the North or the South."); Fukurai et al.,

supra, at 14-15 ("Over the next 100 years, litigated cases overwhelmingly viewed

blacks as inferior, and this inferiority was ensured by structural conditions imposed in

the jury selection process to limit the number of black jurors."). More recently, the

                                            39
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Washington State Jury Commission reported that there remains in Washington "a

perception that jury service has been reserved for certain segments of our society,"

which "increases alienation of the excluded segments and increases resentment by

those who [believe] they are summoned too many times." WASHINGTON STATE JURY

COMM'N, REPORT TO THE BOARD FOR JUDICIAL ADMINISTRATION 3 (July 2000),

available at http://www .courts. wa.govIcommittee/pdf/Jury_Commission_Report. pdf.

The commission concluded that "special efforts should be made to increase

participation in jury service by sectors of society that traditionally have not

participated fully, particularly young people and minority communities." !d. Yet the

use of peremptory challenges only contributes to the recognized and continuing

underrepresentation of minority groups. Each peremptory challenge leveled against a

member of a minority group has a relatively greater exclusionary effect because each

such challenge removes a greater percentage of that minority group from jury service.

Further, many characteristics or life experiences that attorneys perceive as

unfavorable, but which do not render a prospective juror unqualified for service, may

be relatively more common (or seen as more common) among various minority

groups. See, e.g., GRosso & O'BRIEN, supra, at 1541 & n.63 (noting that striking all

persons with a relative in prison could disproportionately exclude racial minorities).

Especially when combined with ongoing racial discrimination, these factors show that

peremptory challenges are a powerful contributor to the ongoing underrepresentation

of minority groups on juries.

                                            40
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       Second, peremptory challenges impose substantial administrative and litigation

costs. More prospective jurors must be called upon to appear for service, disrupting

the lives of many who never actually serve on a jury. Litigants spend much time and

money determining how best to exercise peremptory challenges, not in order to ensure

the constitutional requirement of an impartial jury, but rather to obtain as favorable a

jury as possible. See, e.g., Stevenson, supra, at 1654 n.39 (noting the exorbitant cost

of jury consultation). Further, courts and litigants continue to spend inordinate

amounts of time and money, both at trial and on appeal, adjudicating myriad claims

and arguments under the generally unwieldy and ineffective Batson framework.

Allowing the use of peremptory challenges imposes all of these costs on our justice

system.

       Third, peremptory challenges result in juries that are less effective and less

productive. Allowing the use of peremptory challenges tends to exclude people with

diverse viewpoints and experiences who are qualified to serve as jurors. See, e.g.,

GOBERT & JORDAN, supra, at 272. Yet inclusion and diversity should be considered

extremely important goals of the jury system at a systemic level, in addition to the

fundamental requirement of impartiality. See WASHINGTON STATE JURY COMM'N,

supra, at 3. As the lead opinion rightly points out, such inclusion and diversity is

highly beneficial, advancing fairness and the appearance of fairness, and promoting

more effective and reflective juries. See lead opinion at 17-18; see also Marder,

supra, at 1604 & nn.l19-21 ("[T]hey can correct each other's mistaken notions,

                                            41
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

broaden each other's perspectives, and suggest different ways of looking at the

evidence."). Increased diversity and inclusion on juries also has the potential to

motivate civic engagement in the community. See Andrew E. Taslitz, The People's

Peremptory Challenge and Batson: Aiding the People's Voice and Vision Through the

"Representative" Jury, 97 IOWA L. REV. 1675, 1709-10 (2012) (discussing "one of

the largest studies on juries and democracy"). Allowing the use of peremptory

challenges takes us further away from the important goals of inclusion and diversity.

       Fourth, the use of peremptory challenges amplifies underlying resource

disparity among litigants in a way that brings fundamental fairness into question. This

problem arises because thorough jury consultation is quite expensive and available

only to wealthy litigants. See, e.g., Strier & Shestowsky, supra, at 474-76. Although

the actual efficacy of jury consultation is somewhat dubious, insofar as even a modest

advantage can be obtained in the use of peremptory challenges, the result is a

potentially slanted jury and a widening of"the already-substantial advantage ofthe

wealthy." Id. at 463-64, 474. Such an imbalance injury selection is especially

antithetical to the notion of an impartial jury and "creates an untoward public

perception of the jury being manipulated by psychological devices, in essence, high-

tech jury tampering." Jd. at 472-73 (footnote omitted); see also STARR &

MCCORMICK, supra, at 5.1-34; GOBERT & JORDAN, supra, at 118, 453. Normally,

resource disparity affects each side's ability to convince the adjudicator of its position,



                                            42
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

not the ability to select the adjudicator in the first place. The latter is a far more

fundamental, and in this context an entirely avoidable, problem.

       In stark contrast to the numerous and substantial harms resulting from the use

of peremptory challenges, the procedure has no material benefits. Various benefits

have been identified in theory, but these alleged benefits remain unsupported,

specious, or de minimis and clearly outweighed by related costs. See, e.g., Morris B.

Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective,

64 U. CHI. L. REV. 809, 812-13 (1997) ("Although there is no shortage of academic

and judicial generalizations about the importance of the peremptory challenge, there

have been remarkably few efforts to articulate precisely why the peremptory

challenge is so important." (footnote omitted)).

       The primary benefit alleged to result from the use of peremptory challenges is

jury impartiality. But as already discussed, attorneys use peremptory challenges to

exclude unfavorable jurors, not to obtain an impartial jury. Peremptory challenges are

used to remove prospective jurors who are qualified but who the attorney believes will

be relatively unfavorable in what is probably a close case. This has nothing to do with

furthering impartiality in our justice system.

        Moreover, peremptory challenges are generally ineffective even for the

adversarial purpose of excluding unfavorable jurors. Regardless of their intentions,

and notwithstanding attorneys' collective confidence in their own ability to identify

unfavorable or secretly partial jurors, studies of actual peremptory usage show that

                                              43
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

attorneys generally are ineffective at doing so, and laboratory experiments confirm

that finding. See Raymond J. Broderick, Why the Peremptory Challenge Should Be

Abolished, 65 TEMP. L. REV. 369,413 (1992) (citing studies); Marder, supra, at 1596-

98 (same).

       In one preeminent study of actual peremptory usage in real criminal trials,

prospective jurors who were removed by peremptory challenge were then formed into

shadow juries to observe the trials from which they had been excused. See Hans

Zeisel & Shari Seidman Diamond, The Effect ofPeremptory Challenges on Jury and

Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491, 498-500

(1978). The experimenters were then able to determine whether the attorneys had

reliably excused those jurors who would have voted against them entering

deliberations. See id. at 513-18. The results were "not impressive." I d. at 517.

Overall, "attorney performance was highly erratic," with substantial fluctuations from

one case to the next. Id. In the aggregate, prosecutors "made about as many good

challenges as bad ones," defense counsel fared only "slightly better," and the results

brought into question "the role of peremptory challenges in furthering the

constitutionally prescribed goal of trial by an impartial jury." Id. at 517-18.

        In another prominent experiment, a mock criminal trial was first conducted and

then numerous practicing attorneys (primarily prosecutors and defense counsel asked

to take up their usual roles) were presented with video of the voir dire. See Norbert L.

Kerr et al., On the Effectiveness of Voir Dire in Criminal Cases with Prejudicial

                                            44
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

Pretrial Publicity: An Empirical Study, 40 AM. U. L. REV. 665, 672-79 (1991). The

attorneys then reported "how likely they were to use a peremptory challenge" on

individual prospective jurors, estimated "which way the juror[ s] would lean in the

trial," and then were asked to guess how many of their own predictions were correct.

I d. at 677-78. The attorneys reported that the simulation was fairly realistic. See id. at

679. But a comparison of attorney ratings to actual juror performance in the mock

trial found that "defense attorneys would have done no worse in exercising their

peremptory challenges had they simply flipped coins," while prosecutors' ratings

"were weakly, but only marginally, correlated with juror behavior," and both groups

"grossly overestimated their actual rate of success." Id. at 685, 688-89.

       These results should not be surprising. As noted, most lawyers rely on

intuition, lore, and anecdotal experience in exercising peremptory challenges. But in

practice attorneys rarely if ever can actually confirm the effectiveness of their

decisions concerning peremptory challenges. Thus, anecdotal experience and lore in

this context are based on nothing more than intuition, which is entirely arbitrary,

erratic, and unreliable without any sort of regular experiential validation. See Marder,

supra, at 1596-97. Over time, well-established psychological tendencies-such as

confirmation bias (the tendency to look for confirmation but not falsification of our

hypotheses) and selective information processing (the tendency to readily accept

confirming evidence but devalue contradictory evidence)-likely entrench attorneys'

preexisting biases, including closely held racial stereotypes and generalizations, and

                                             45
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

give attorneys false confidence in the effectiveness of their decisions concerning

peremptory challenges. See, e.g., Burke, supra, at 1480-81.

       Even the use of jury consultation shows only mixed results, probably because

of the various subjective judgments that must be made and the unreliability of using

superficial statistical analysis to make individual judgments about complex human

beings. See supra, pp. 20-21. And insofar as jury consultation actually can provide a

modicum of relative advantage to a litigant, it remains available only to the most

wealthy, and thus, works against fairness and impartiality rather than for it.

       The notion that impartiality is furthered by allowing litigants to exercise

arbitrary and unsupported juror challenges, based on nothing more than whim or

generalization, is a farce. We must recognize that it is difficult if not impossible to

detect juror bias except in clear cases, that most biases do not render jurors

unqualified, and that the solemnity of the proceedings and substance of deliberations

will help to ensure just verdicts from our juries. See Marder, supra, at 1601-06;

DONNER& GABRIEL, supra, at 10-18; Taslitz, supra, at 1709-10. Ifthere is sufficient

evidence that a juror is unqualified, that evidence should be presented to the trial court

and ruled upon. Otherwise, the juror should be allowed to serve.

        The remaining arguments in support of peremptory challenges fare no better.

For example, some have argued that the peremptory challenge "provides a ready

corrective for errors by a judge in refusing to grant a challenge for cause." GOBERT &

JORDAN, supra, at 217. Yet a trial judge refusing to grant a challenge for cause


                                            46
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

abuses his or her discretion only if the juror's partiality is abundantly clear, which will

be relatively rare, and an abuse of discretion in such circumstances will be rarer still.

If appropriate, the standards governing challenges for cause can be addressed directly.

But allowing litigants to make unsupported and arbitrary challenges to prospective

jurors in order to avoid the mere potential for unreasonable decisions by our trial

courts would be senseless.

       Others have seen potential value in peremptory challenges as a way to "remove

a juror whom [the attorney] has offended by a probing voir dire or by an unsuccessful

challenge for cause .... " Ginger, supra, at 1054 n.16. But this argument assumes

that attorneys must alienate prospective jurors in order to conduct effective voir dire,

which is false. Any relevant concerns can be adequately addressed with questioning

from the trial court, more delicate questioning or ingenuity from the attorneys, or

proceedings outside the presence of the jury, when appropriate. Regardless, both

sides remain on equal footing, and the attorneys can be expected to effectively

navigate the process. Even if an attorney happens to alienate a prospective juror

during voir dire, an alienated juror is not necessarily biased to any material degree.

        Similarly, some have noted that allowing peremptory challenges permits

"attorneys to choose jurors about whom they feel comfortable," thus allowing the

attorneys to be more effective advocates. GOBERT & JORDAN, supra, at 272. But

someone who works as a trial advocate should be able to overcome performance

anxiety, and any subtle increase in attorney discomfort in a given case is of no

                                            47
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

moment. Again, both sides remain on equal footing, and attorneys can be expected to

advocate effectively-even before jurors whom they perceive as hostile.

       Still others have advocated for peremptory challenges on the ground that

parties are "consequently more likely to be accepting of the jury's verdict." GOBERT

& JORDAN, supra, at 271. But allowing causal challenges provides litigants more than

enough involvement in jury selection and adequately ensures fairness and impartiality.

The argument also ignores that peremptory challenges interfere with the appearance

of fairness in numerous respects, are essentially capricious, and engender disrespect

for the legal system in part due to the ongoing presence of racial discrimination and

underrepresentation of minority groups on juries. See, e.g., EQUAL JUSTICE

INITIATIVE, supra, at 28-30; Marder, supra, at 1609 & n.144; James H. Coleman, Jr.,

The Evolution of Race in the Jury Selection Process, 48 RUTGERS L. REV. 1105, 1108

(1996); WASHINGTON STATE JURY COMM'N, supra, at 3.

       Yet another argument in favor of peremptory challenges is that without them

attorneys will spend more time asserting and arguing causal challenges, thus

increasing administrative and litigation costs. But attorneys already have more than

enough incentive to argue causal challenges whenever possible, in order to conserve

the limited number of peremptory challenges available to them. Further, attorneys are

able to raise causal challenges only when there is some objective reason to believe

that a juror cannot be impartial, and trial courts can easily control the process to avoid

unnecessary costs and delays. This argument also ignores the relatively greater costs

                                            48
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

that peremptory challenges impose, including the need to call more prospective jurors

who never serve, the needless time and money litigants spend on determining how to

exercise peremptory challenges, and the ongoing costs of litigating the Batson

framework.

       A final argument in favor of peremptory challenges is that they prevent

extremists from getting onto juries and thus, avoid more hung juries and the need for

costly retrials. But true extremists are excused for cause if there is evidence to

establish their extremism, and if such extremism remains hidden, the unreliable and

inaccurate use of peremptory challenges will fare no better at removing the extremism

from the jury. Moreover, the solemnity of the proceedings and the substance of

deliberations might help to overcome the initial presence of extremism on the jury. In

any event, hung juries are relatively rare, notwithstanding the fact that most trials

present close cases. See PAULA L. HANNAFORD-AGOR ET AL., ARE HUNG JURIES A

PROBLEM? 25 (National Center for State Courts, National Institute of Justice, 2002)

(finding average hung jury rate of 6.2 percent in 30 jurisdictions across the United

States), available at

http://ncsc. contentdm. oclc. org/cdm/single item/co llecti on/j uries/id/2 7/rec/2.

        In sum, the substantial costs of allowing the use of peremptory challenges are

numerous, well-established, and deeply concerning, while the alleged benefits are

unsupported, specious, or de minimis.




                                               49
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

   5. A BriefHistory of the Peremptory Challenge

       The case for abolishing peremptory challenges becomes even more compelling

after considering the origin of the procedure and its history in Washington.

       The peremptory challenge first appeared in England during the 13th century.

See William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 AM.

CRIM. L. REv. 1391, 1412 (2001); see also Hoffman, supra, at 817-19. Historians

believe that the practice originated in English criminal trials because causal challenges

made by the King were deemed royally infallible; in response, criminal defendants

were provided with a reasonable number of challenges of their own for which no

cause would be required. See Pizzi & Hoffman, supra, at 819; Broderick, supra, at

371-72; Pizzi & Hoffman, supra, at 1412. Others have also suggested that

peremptory challenges originally were "actually a kind of shorthand challenge for

cause in small English villages and towns, where it was commonplace for ... cause

disqualifications to be obvious to all." Pizzi & Hoffman, supra, at 1412. In either

case, "peremptory challenges antedated the notion of jury impartiality by some 200

years .... " Id. at 1439. Although the need to offset royal infallibility eventually

became outdated, the practice of allowing litigants in each case a limited number of

peremptory challenges remained a long standing tradition in England that eventually




                                            50
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

was adopted in the United States without much debate or fanfare. See Hoffman,

supra, at 823-25?

       The peremptory challenge was adopted in the Washington Territory shortly

after the territory's formation, without any record of substantive debate on the topic.

The first legislature of the territory passed comprehensive codes of civil and criminal

procedure, both of which provided for the use of peremptory challenges among

myriad other procedural matters. See LAWS OF 1854, at 100-29, 129-221; see also id.

at 118, 165. The legislative journals reveal that these comprehensive procedural

codes were discussed primarily in legislative committees; both codes were passed

swiftly, with only "sundry amendments" made during the legislative process. See

HOUSE JOURNAL, 1st Sess., at 71, 73, 77-78, 80 (Wash. Terr. 1854); COUNCIL

JOURNAL, 1st Sess., at 134-35, 137, 149, 150-51, 153, 160 (Wash. Terr. 1854). There

is no record of any debate or deliberations regarding peremptory challenges. At the



3
  Although the peremptory challenge became a long standing tradition in England, the
practice was eventually abolished in that country in 1988. See, e.g., Nancy S. Marder,
Two Weeks at the Old Bailey: Jury Lessons from England, 86 CHI.-KENT L. REv. 537,
553 & n.50 (2011) ("England had the peremptory and eliminated it, and does not seem
any worse off for having eliminated it." (footnote omitted) (citing Criminal Justice
Act, 1988, ch. 33, § 188(1) (Eng.)). The comparison is informative, but it is
admittedly imperfect because the English jury system does not strictly require jury
unanimity for a guilty verdict. See id. at 579-80 ("After the jury has deliberated for at
least two hours and has reported to the judge that it is having difficulty reaching a
unanimous verdict, the judge can decide to accept a [super-majority] verdict ... if
there is a vote of 11-1 or 10-2."). English prosecutors may also use a "standby"
procedure that is in effect similar to a peremptory challenge, but prosecutors rarely
exercise standbys. Nancy S. Marder, Beyond Gender: Peremptory Challenges and the
Roles of the Jury, 73 TEX. L. REV. 1041, 11 02-03 & n.262 ( 199 5).
                                            51
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

time, racial minorities and women were completely excluded from participation on

juries. See Forman, supra, at 910; Aaron H. Caplan, The History of Women's Jury

Service in Washington, in WASH. ST. B. NEWS, Mar. 2005, at 13.

       The original code provisions from the Washington Territory governing the use

of peremptory challenges have remained essentially unchanged and unquestioned

from the time they were adopted until now. These procedural provisions were still in

place when Washington became a state, at which point they were ostensibly adopted

by our state constitution as part of a broad incorporation of territorial laws in force at

the time. See CONST. art. XXVII,§ 2. The sole substantive alteration to these

provisions came in 1969 and related to the number of peremptory challenges available

to multiple parties on the same side of a case. See LAWS OF 1969, 1st Ex. Sess., ch.

3 7, § 1, ch. 41, § 1. There is no record of any related discussion or debate concerning

the wisdom of maintaining the peremptory system generally. See, e.g., HOUSE

JOURNAL, 41st Leg., Reg. Sess.,at 162-63 (Wash. 1969) (debate concerned equal

distribution of challenges among parties and extent of judicial review).

        In 1973, this court adopted its first set of comprehensive criminal court rules,

including a provision allowing for the exercise of peremptory challenges. See former

CrR 6.4(a) (1973). The Criminal Rules Task Force, which originally drafted and

recommended the rules for adoption, provided substantial commentary and

explanation regarding many of its proposed rules. See generally CRIMINAL RULES

TASK FORCE, WASHINGTON PROPOSED RULES OF CRIMINAL PROCEDURE (May 15,

                                             52
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

1971 ). Regarding the sole provision allowing for the continued use of peremptory

challenges, however, the task force simply cited to the relevant preexisting statutes,

without further discussion. See id. at 102. Thus, the use of peremptory challenges in

this state was allowed to continue, but once again, without substantive debate or

discussion concerning the propriety of the procedure.

       It is time to consider whether peremptory challenges actually should be part of

our jury selection process.

    6. The Need To Abolish: Preventing Constitutional Violations

       Peremptory challenges must be abolished in order to put an end to the racial

discrimination that underlies their use throughout this state. The exercise of a

peremptory challenge based on race violates the constitutional requirement of equal

protection of laws. See, e.g., Powers, 499 U.S. at 409. Specifically, a defendant has

"the right to be tried by a jury whose members are selected by nondiscriminatory

criteria," id. at 404, and a prospective juror has "the right not to be excluded from [a

jury] on account of race," id. at 409. Peremptory challenges based on race directly

violate these constitutional rights.

        As already discussed, judicial review of individual peremptory challenges is

ineffective and cannot address the ongoing constitutional violations occurring

throughout this state. Because this court has plenary authority over trial procedures,

we should abolish peremptory challenges in order to deter those violations.



                                            53
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       Abolishing peremptory challenges is constitutionally required, given the need

to prevent racial discrimination and the lack of any justification for allowing

peremptory challenges. When a given policy creates a systematic risk of racial

discrimination, the "question is at what point that risk becomes constitutionally

unacceptable." Turner v. Murray, 476 U.S. 28, 36 n.8, 106 S. Ct. 1683, 90 L. Ed. 2d

(1986); McCleskey v. Kemp, 481 U.S. 279, 308-09, 107 S. Ct. 1756, 95 L. Ed. 2d 262

(1987). The point at which such a risk becomes constitutionally unacceptable

obviously depends upon the ostensible justifications and need for the given policy or

practice. Compare McCleskey, 481 U.S. at 311,313 (risk that some juries were

discriminating in capital sentencing held constitutionally acceptable because of the

importance of trial by jury, the need to maintain discretion in the criminal justice

system, and the presence of safeguards), with United States v. Jackson, 390 U.S. 570,

581-83, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) (policy held unconstitutional,

regardless of intent, because it posed risk of chilling the exercise of basic

constitutional rights and did so "needlessly"). In this case, the policy of allowing

peremptory challenges creates a substantial risk of racial discrimination, has the

"inevitable effect" of excluding some citizens from jury service on the basis of race,

and has no substantiated benefits. Jackson, 3 90 U.S. at 581. There is simply no need

for litigants to be able to exclude prospective jurors without reason. But we need not

even decide whether the policy of allowing peremptory challenges is unconstitutional



                                            54
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

in itself because our plenary authority in this area already obliges us to abolish

peremptory challenges in pursuit of justice.

    7. The Need To Abolish: Preventing Other Injustices

       In addition to the need to prevent racial discrimination, this court must abolish

peremptory challenges in order to eliminate all of the other substantial costs the

practice imposes upon our justice system. The disproportionate exclusion of minority

groups from jury service, for example, is of great concern. Jury participation is

critically important to the functioning and legitimacy of our government. The use of

juries validates the justice system through community participation, provides a check

against governmental abuses of power, educates citizens and promotes civic

engagement, and promotes integration and mutual understanding across social groups.

See Powers, 499 U.S. at 406-07; Taslitz, supra, at 1685, 1687, 1698, 1700, 1709-10

("A racially diverse jury ... will [] humble criminal-justice-system leaders and their

agents before subordinate group members, who are treated for the moment as full and

equal members of the People. In this way, [inclusion] amplifies the egalitarian effects

of ocular justice."). All of these purposes are substantially thwarted when minority

groups are disproportionately excluded from jury service. Members of excluded

groups also can be emotionally harmed, and the appearance of fairness is considerably

eroded. See supra p. 48. The elimination of peremptory challenges is also needed to

reduce wasteful administrative and litigation costs, to promote more effective juries,



                                            55
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

and to prevent the amplification of resource disparity in jury selection. See supra pp.

40-42. To further all of these purposes, we must abolish peremptory challenges.

   8. Going Forward

       Abolishing peremptory challenges will bring us only one step closer to justice.

As a general matter, we must continue to oversee the rules of procedure in this state,

ensure that such rules are fair and effective, and see that justice is done in each and

every case within our jurisdiction. If we finally abolish peremptory challenges and

thus resolve the myriad problems associated that procedure, we should then turn our

attention to whether our overarching framework of causal challenges needs

improvement or clarification. We should also engage in our formal rule-making

process in order to consider additional proposals for improving jury selection,

including ways to further the goals of inclusion and diversity.

       But we should not leave the current system in place while trying to devise such

solutions. The use of peremptory challenges in our legal system has never been

shown to be beneficial in any way. In stark contrast, the grave problems the practice

causes are ongoing, before us, and must be addressed. Such grave problems will

continue even if we begin a formal attempt to devise a better solution. Further, a

better solution is highly unlikely to ever appear; numerous alternatives to abolishing

peremptory challenges already have been proposed, but none appear promising. See,

e.g., Jean Montoya, The Future of the Post-Batson Peremptory Challenge: Voir Dire

by Questionnaire and the "Blind" Peremptory, 29 U. MICH. J.L. REFORM 981 (1996)

                                            56
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

(proposing entirely written voir dire and peremptory challenges); Jeb C. Griebat,

Peremptory Challenge by Blind Questionnaire: The Most Practical Solution for

Ending the Problem ofRacial and Gender Discrimination in Kansas Courts While

Preserving the Necessary Function of the Peremptory Challenge, 12 KAN. J.L. & PUB.

PoL'Y 323 (2003) (proposing written questionnaires and peremptory challenges prior

to live voir dire); Brian W. Stoltz, Rethinking the Peremptory Challenge: Letting

Lawyers Enforce the Principles ofBatson, 85 TEX. L. REV. 1031, 1034, 1047 (2007)

(proposing a convoluted "peremptory block system"). Even if we do eventually

identify and adopt a better solution, the current system simply cannot stand and thus,

should not be maintained in the meantime.

        If we do not abolish peremptory challenges, we should at least take steps to

augment the effectiveness of the current jury selection process under Batson. For

example, we could require trial courts to conduct questioning directly and to impose a

strict relevance requirement for any questions submitted by the attorneys, with an

exception for special circumstances or when the trial judge has established her or his

own declared rules to govern the relevant interests at stake. Cf State v. Roberts, 142

Wn.2d 471, 519, 14 P.3d 713 (2000) (litigants not entitled to conduct "their own voir

dire of every prospective juror"); STARR & McCORMICK, supra, at 2-21 ("In federal

cases, 70 percent of voir dire is conducted by judges."). There are numerous costs and

benefits associated with greater control and questioning by trial judges, see, e.g.,

GOBERT & JORDAN, supra, at 326-27; STARR & MCCORMICK, supra, at 19-4, but

                                            57
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

greater control will at least limit the ability of attorneys to go fishing for pretextual

race-neutral reasons and will also generally limit the availability of such reasons and

properly shift the focus to causal as opposed to peremptory challenges. That said,

limiting available information might also promote the greater use of stereotypes and

generalizations-underscoring once again the need to eliminate peremptory

challenges entirely.

       In sum, the need to abolish peremptory challenges is abundantly clear.

                                   III.   APPLICATION

       Although the allowance of peremptory challenges at Saintcalle's trial should be

considered trial error, Saintcalle himself is not entitled to reversal of his conviction.

Because trial courts throughout this state have been allowing peremptory challenges

in good faith until now, and because a peremptory challenge is only a small part of the

entire trial process and is not innately harmful or pernicious, the erroneous allowance

of a peremptory challenge does not warrant reversal in every case. See Creech, 44

Wash. at 73-74; Rivera, 556 U.S. at 157; cf N Pac. Ry. v. Herbert, 116 U.S. 642,

646, 6 S. Ct. 590, 29 L. Ed. 755 (1886) (erroneous allowance of causal challenge held

harmless); State v. Larkin, 130 Wash. 531, 533, 228 P. 289 (1924) (same); State v.

Williams, 132 Wash. 40, 46,231 P. 21 (1924) (same). Reversal is warranted on

appeal only if the trial court (1) acted in bad faith in failing to follow the law or (2)

allowed a peremptory challenge in good faith but failed to comply with the Batson

framework.

                                              58
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       In Saintcalle's case, the trial court acted in good faith and did not commit clear

error in allowing the peremptory challenge of prospective juror Tolson. First, the trial

court clearly acted in good faith because at the time of Saintcalle's trial, peremptory

challenges were allowed under the law. Second, the record does not compel a finding

that the prosecutor's challenge of prospective juror Tolson was racially

discriminatory. The record discloses that the parties obtained written questionnaires

from the prospective jurors prior to voir dire and that the written responses contained

substantive information. See Verbatim Report of Proceedings (VRP) (Mar. 10, 2009)

at 119. The record also reveals that the prosecutor was aware of certain facts about

Ms. Tolson that were not divulged during voir dire-including some facts related to

the recent death of her friend. See Transcript of Proceedings (TP) (Mar. 9, 2009) at

66, 68; VRP at 101-02. If Ms. Tolson revealed in her questionnaire that her friend

had recently been murdered, that would reasonably explain why she was questioned

extensively. And once thoroughly questioned, Ms. Tolson expressed serious doubts

about her ability to serve on the jury-doubts that were far more substantial than those

of any other juror. See TP at 70 ("I like to think that I am fair and can listen ... but I

don't know. I have never been on a murder trial and have just lost a friend two weeks

prior to a murder."); VRP at 43 ("I don't know how I'm going to react. ... [A]s we

go through it, and I hear the testimony, and I see the pictures, I don't know.").

Unfortunately, the questionnaires were not made part of the record. With that

material omission in mind, we must affirm the trial court's decision because the

                                            59
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

burden of proof is on Saintcalle and the record "fails to affirmatively establish an

abuse of discretion." Sisouvanh, 175 Wn.2d at 619 (citation omitted).

       The trial court did subsequently find that the prosecutor attempted to strike a

different prospective juror based on race, which the trial court should have considered

as relevant to the previous challenge against Ms. Tolson. However, Saintcalle did not

ask the trial court to reconsider its prior ruling. Further, even keeping in mind the

prosecutor's subsequent racial discrimination, it still was not clear error for the trial

court to find that the earlier challenge to Ms. Tolson was race-neutral.

       Based on a review of the record, I cannot say that the trial court clearly erred in

allowing the prosecutor's peremptory challenge and excusing Ms. Tolson from the

jury. Applying the appropriate legal framework to this case-that is, reviewing the

allowance of a peremptory challenge as error, subject to reversal only in cases

involving bad faith or failure to comply with Batson-Saintcalle is not entitled to

reversal of his conviction.

                                   IV.   CONCLUSION

        The time has come to abolish peremptory challenges. The use of this procedure

propagates racial discrimination, contributes to the historical and ongoing

underrepresentation of minority groups on juries, imposes needless administrative and

litigation costs, results in less effective juries, amplifies resource disparity in jury

selection, and mars the appearance of fairness in our justice system. It provides no

material benefits.

                                             60
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

       The compelling need to abolish peremptory challenges is no secret. Numerous

jurists throughout the nation repeatedly have recognized the need to eliminate this

"anathema to our democracy." Broderick, supra, at 371; Mark W. Bennett,

Unraveling the Gordian Knot of Implicit Bias in Jury Selection, 4 HARV. L. & POL'Y

REV. 149, 166 (2010) (N.D. Iowa); Rice v. Collins, 546 U.S. 333, 342, 126 S. Ct. 969,

163 L. Ed. 2d 824 (2006) (Breyer and Souter, JJ., concurring); Morgan v.

Commonwealth, 189 S.W.3d 99, 115 (Ky. 2006) (Graves, J., concurring), overruled

on other grounds by Shane v. Com., 243 S.W.3d 336 (Ky. 2007); John Paul Stevens,

Foreword, 78 CHI.-KENT L. REV. 907 (2003) (U.S.); Commonwealth v. Maldonado,

439 Mass. 460, 468, 788 N.E.2d 968 (2003) (Marshall, C.J., Greaney and Spina, JJ.,

concurring); Wamget v. State, 67 S.W.3d 851, 860 (Tex. Crim. App. 2001) (Meyers,

J., concurring); State v. Buggs, 581 N.W.2d 329, 343 (Minn. 1998) (Page, J.,

dissenting); Minetos v. City Univ. ofNew York, 925 F. Supp. 177, 183 (S.D.N.Y.

1996); Hoffman, supra; Parker v. State, 219 Ga. App. 361, 364,464 S.E.2d 910

(1995) (Pope, J., concurring); Thorson v. State, 653 So. 2d 876, 896 (Miss. 1994)

(Sullivan, Pittman, and Banks, JJ., concurring); Gilchrist v. State, 97 Md. App. 55, 78,

627 A.2d 44 (1993) (Wilner, C.J., concurring); People v. Bolling, 79 N.Y.2d 317, 325,

591 N.E.2d 1136 (1992) (Bellacosa, J., Wachtler, C.J., and Titone, J., concurring);

A len v. State, 596 So. 2d 1083, 1086 (Fla. Dist. Ct. App. 1992) (Hubbart, J.,

concurring); Theodore McMillian & Christopher J. Petrini, Batson v. Kentucky: A

Promise Unfulfilled, 58 UMKC L. REv. 361, 374 (1990); State v. Johnson, 722

                                           61
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

S.W.2d 62, 66 (Mo. 1986) (Donnelly, J., concurring); Batson, 476 U.S. at 102

(Marshall, J., concurring).

       At the same time, no jurisdiction in the United States has been willing to be the

first to take the necessary step of abolishing peremptory challenges. See Flowers, 947

So. 2d at 938 (Miss. 2007). But mere idle threats will not curb any of the myriad

problems associated with peremptory challenges-problems which are ongoing and

significant. Cf id. at 939 ("While we neither abolish peremptory challenges, nor

adopt a limited voir dire n1le, nor make any specific changes to our peremptory

challenge system, we are inclined to consider such options if the attorneys of this

State persist in violating the principles of Batson by racially profiling jurors."). The

same can be said of"wait[ing] for another case" or some future better rule to come as

the court does here. Lead opinion at 24; concurrence (Madsen, C.J., joined by J.M.

Johnson, J.) at 1, 3; concurrence (Stephens, J.,joined by C. Johnson and Fairhurst, JJ.)

at 1, 5. It appears true that "overcoming negative sentiment among judicial actors

might present the biggest hurdle to implementation of this proposed reform." Maisa

Jean Frank, Challenging Peremptories: Suggested Reforms to the Jury Selection

Process Using Minnesota as a Case Study, 94 MINN. L. REV. 2075, 2101 (2010). This

court should not be blinded by tradition, see J.E.B., 511 U.S. at 142 n.15, and must

recognize that "a single courageous state" is always first to act, New State Ice Co. v.

Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371,76 L. Ed. 747 (1932) (Brandeis, J.,




                                            62
State v. Saintcalle, No. 86257-5
Gonzalez, J. concurring

dissenting). The time has come for Washington to finally abolish the peremptory

challenge.




                                         63
No. 86257-5




                   (




              64
State v. Saintcalle (Kirk Ricardo)




                                       No. 86257-5

          CHAMBERS, J.* (dissenting) -Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 (1986), was a great, symbolic step forward in providing
equal justice under law. But Batson, sadly, has remained primarily symbolic. In
practice, Batson merely requires the machinery of justice pause, consider whether a
preemptory challenge was racially motivated, find a plausible sounding,
nondiscriminatory reason to dismiss a juror, and move on. 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. This has proved to be an impossible barrier. Further, Batson, by design,
does nothing to police jury selection against unconscious racism or wider
discriminatory impacts. I am skeptical-given that we have never reversed a
verdict on a Batson challenge-that it does much to police discriminatory purpose

itself.
          Batson ignores the fact that discrimination is discrimination whether it is
purposeful or not. It ignores the fact that discrimination is real whether it is done
with racist intent or not. It ignores the fact that the minority juror who is removed
because of discrimination is denied the right to participate in one of the two most
fundamental democratic processes of our nation. We have learned something from
history, and this case gives us an opportunity to show it.

*Justice Tom Chambers is serving as a justice pro tempore ofthe Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
State v. Saintcalle, No. 86257-5




      I believe Justice Alexander was right in State v. Rhone, 168 Wn.2d 645, 229

P.3d 752 (2010). Following his dissent, I would hold that a prima facie case of

discrimination is established when the sole remaining venire member of a

constitutional cognizable racial group is peremptorily challenged. Id. at 661

(Alexander, J., dissenting). I would do this, not under Batson, but under our

inherent supervisory power and based on our own understanding of the pernicious

effect of unconscious racism on a fair system of justice. See State v. Bennett, 161

Wn.2d 303, 305, 165 P.3d 1241 (2007); Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1, 149 Wn.2d 660, 674-75, 72 P.3d 151 (2003) (citing State ex rel.

Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 128-29, 492 P.2d

536 (1972) (finding the difference between de facto and de jure discrimination

constitutionally insignificant), overruled on other grounds by Cole v. Webster, 103

Wn.2d 280, 288, 692 P.2d 799 (1984))).

      I do not believe it would be wise of this court to abandon peremptory

challenges altogether. Peremptory challenges are important in ensuring fair trials

because jurors are sometimes not candid or fail to understand they have deep

seated prejudices that may not be easily developed during voir dire to support a

for-cause challenge.

       In this case, I am simply not convinced that Kirk Saintcalle received a fair

trial before a truly representative jury. I would reverse and remand for a new trial.

       I respectfully dissent.




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State v. Saintcalle, No. 86257-5




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