NEWS | CRIMINAL JUSTICE “OF HIS PEERS,” CONTINUED...
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14 INLANDER NOVEMBER 30, 2017
only two convictions based on the “Batson test,” according to state Supreme Court documents. The Spokane case, while not an especially egregious example, offers a window into attempts in Washington state to rid jury selection of prejudice. This year, the state Supreme Court tried to sharpen the “Batson test” for Washington state courts, though some argue the court did not go far enough. Still, the new rules gave Cook’s attorney, Jeremy Schmidt, a stronger case to cry foul when Juror No. 15 was sent home earlier this month. Spokane Superior Court Judge Julie McKay called a mistrial — a rarity in these cases — though she stopped short of ruling that the prosecutor was racially biased. Both Judge McKay and the prosecutor, Preston McCollam, declined to comment for this article because the case against Cook is still pending. Schmidt emphasizes that he does not believe the prosecutor is racist, but he says he had an ethical duty to raise the issue. By doing so, Schmidt forced a difficult conversation about implicit racial discrimination. “There’s nothing that flies against our justice system as much as racism,” Schmidt says. “We have this idea of due process and of looking at an individual based on the evidence and not anyone’s preconceived notions.”
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n 1982, a Louisville, Kentucky, man by the name of James Batson was accused of a burglary he says he didn’t commit. The first trial ended in a hung jury. The only holdout, Batson recently recounted on the podcast More Perfect, was a black woman, who believed he was innocent. She told him as much after the trial, he says on the podcast. During the second trial, the prosecutor used “peremptory challenges” to eliminate all four black people from the jury pool. He was then convicted by the all-white jury and sentenced to 20 years in prison. But in 1986, the U.S. Supreme Court vacated Batson’s conviction, and established the three-step “Batson test” to protect against racial discrimination in the future. The test works like this: First a lawyer for one side must show the judge that, at first blush, a “peremptory challenge” looks to be racially motivated. Typically, that has meant showing a pattern of racial discrimination. The dismissal of a single juror wouldn’t necessarily cut it. (The state Supreme Court’s ruling this year changes that; now, if a lawyer dismisses the only juror of a particular racial group, you automatically move on to the second step.) Next, the other side must provide a “raceneutral” explanation for why a particular juror could not be impartial. In the past, those reasons have included distrust of law enforcement, living in a high-crime neighborhood, having a child outside of marriage and speaking English as a second language. One U.S. Supreme Court decision from 1995 even said it was OK for judges to accept “silly or superstitious” reasons, such as “curly, unkempt hair,” and “a mustache and goatee type beard.” Finally, it’s up to the judge to decide whether
Public defender Jeremy Schmidt: “There’s nothing that flies against our justice system as much as racism.” the lawyer intentionally discriminated based on race. This final step essentially requires a judge to call the lawyer a racist or sexist. “That is a fundamental flaw in the Batson standard,” says Mungia, the Tacoma attorney. “For me to make the challenge, I have to say the lawyer struck a juror for a discriminatory purpose, and then to sustain my challenge, the judge has to be the bad guy and find a discriminatory purpose. That’s a very harsh thing to find.” When the U.S. Supreme Court first created the three-step test, then-Justice Thurgood Marshall warned that it would not be strong enough to root out explicit, much less implicit, bias. Marshall argued that the “peremptory challenge” should be eliminated. Current U.S. Supreme Court Justice Stephen Breyer, and Washington State justices Steven Gonzalez and Mary Yu have since joined in that thinking. Within months of the 1986 decision, lawyers began learning how to pass the “Batson test.” One infamous lesson from a prosecutor in Philadelphia still lives on YouTube. During an hourlong lecture, Jack McMahon stands in front of a room full of young prosecutors. He instructs them to ask more questions of black people during jury selection “so it gives you more ammunition to make an articulable reason as to why you’re striking them not for race.” Since 1986, courts have expanded the “Batson test” to include discrimination based on sex, ethnicity and, in some states, sexual orientation. But peremptory challenges are still the rule, and the American justice system is still reckoning with them. Studies have shown that even one black juror can make a difference. Research from Duke University in 2012 found that all-white juries convict black defendants 16 percent more often than white defendants. The study drawing from 700 felony trials over 10 years in Florida concluded that adding even one black juror eliminates that gap.
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n court, McCollam, the prosecutor in the Spokane case, cited one conversation with Juror No. 15, as well as the man’s reaction to