The Washington Supreme Court tasked trial court judges with being aware of “implicit, institutional and unconscious biases” and to conduct a “searching inquiry” into allegations of racial bias and juror misconduct tainting a criminal defendant’s right to a fair trial. In the case State v. Berhe, the sole African-American serving on a jury for an African-American defendant raised issues of racial bias in jury deliberations post-verdict. The trial court judge, however, did not conduct an evidentiary hearing on the allegations before denying defendant’s motion for a new trial. The trial judge reasoned that “that there is insufficient evidence to conclude that juror misconduct occurred with respect to racism-implicit or explicit”. The Washington Supreme Court held that this was an abuse of discretion and vacated the order denying the motion for a new trial.
Justice Mary Yu, the author of the unanimous Washington Supreme Court decision, wrote that “as our understanding and recognition of implicit bias evolves, our procedures for addressing it must evolve as well.” Similar to the recently adopted GR 37 “objective observer” standard applied to peremptory challenges in jury selection, the “ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington state) could view race as a factor in the verdict.” This puts a clear duty on trial court judges to identify implicit bias and to thoroughly investigate allegations of racial bias. As Ann Murphy, a Gonzaga University law professor pointed out, hopefully this ruling will result in training of trial court judges to identify implicit bias.
MBE Law Group assisted with amicus briefing in State v. Berhe submitted on behalf of ACLU of Washington Foundation, ACLU Foundation, South Asian Bar Association and Loren Miller Bar Association.