Today in a hopeful expression of self-awareness, all nine justices of the Washington State Supreme Court signed an open letter recognizing that injustices against Black Americans are still present in the criminal justice system, and stating that, “The systemic oppression of black Americans is not merely incorrect and harmful; it is shameful and deadly.” The Court goes on to write:
We cannot undo this wrong–but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.
The Sheridan Law Firm responds.
The Court needs to do better not just in the criminal realm, but also in the civil realm. Race discrimination has not waned in Washington, it has simply gone underground. Implicit bias is in every White American and the Court cannot continue to ignore the underlying unfairness in almost every trial litigating race discrimination in Washington, because of the utter failure of trial judges and appellate judges to ensure that persons of color are in the jury pool in a race case so that a fair trial may be had. Justice Wiggins famously noted:
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. Id. at 41. “By every deliberation measure, … heterogeneous groups outperformed homogeneous groups.” Id. (alteration in original) (quoting Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition in Jury Deliberation, 90 J. Personality & Soc. Psychol. 597, 608 (2006)). These studies confirm what seems obvious from reflection: more diverse juries result in fairer trials.
In 2018, the Sheridan Law Firm brought two related cases to the Supreme Court, but were denied review. In Johnson v. City, the plaintiffs were mostly black, and the jury pool was white. The trial judge denied plaintiffs’ request to pick a new group of potential jurors to ensure some diversity, and the Court of Appeals affirmed. The Supreme Court denied review and ignored this serious problem.
The wheels of justice turn slowly when it comes to change. Hopefully, in 2020, this Court will take cases involving juror diversity and examined the inequities in the environment they now accept is flawed. We wish them well, and we hope to see more change and enlightenment in the opinions that will be written in the future.
*In March 2020, the Washington State Supreme Court granted direct review of a case addressing these issues in the civil realm. In Henderson v. Thompson, a Black American plaintiff received an inadequate verdict from the jury (well under the damages the insurance company advocated for in defense). The court below denied a new trial and evidentiary hearing even though racial bias was injected into the trial in closing argument and the jurors wanted the Black American plaintiff out of the courtroom before they exited. Attorneys at the Sheridan Law Firm will be writing an amicus (friend of the court) brief on behalf of the Loren Miller Bar Association in support of reversal and encouraging the Court to exercise its inherent authority by requiring a jury instruction on implicit bias in all cases.
First Row (left to right): Carmelia Davis-Raines, Luisa Johnson, Toni Williamson, Cheryl Muskelly
Second row: Pauline Robinson, Elaine Seay-Davis, (Lynda Jones not present)
July 6, 2018
Seattle, WA
Johnson et.al. v. City of Seattle
Today one Asian American and six African-American former employees at SPU filed a petition with the Washington State Supreme Court asking the justices to grant them a new trial because the jury panel for their race and age discrimination trial lacked racial and economic diversity. At trial in the King County Superior Court, the plaintiffs objected to the venire (the juror pool) and asked the Honorable Suzanne Parisien to dismiss that venire and bring in another panel of potential jurors that contained some black persons. Judge Parisien denied the request. They also asked Judge Parisien to reconstitute the venire because after Judge Parisien granted requests for hardship dismissals based on financial concerns of lower wage earners whose employers would not pay them to sit on the jury for three weeks, those not dismissed constituted an elite cross-section of the citizenry, including non-working retirees and persons who worked for big companies in higher paying salaried jobs who would be paid through a three-week trial. The plaintiffs argued that Judge Parisien should create a trial schedule which may permit more economic diversity in the panel, such as holding court fewer days in a work week. Judge Parisien denied that request as well. The petitioners consider these rulings to be denials of their constitutional rights to equal protection and to a jury trial.
As to the economic diversity issue, if review is granted by the Supreme Court, petitioners will suggest possible solutions include paying jurors at least the minimum wage to enable low-income workers to be jurors, or to have court fewer days each week so hourly workers can still work and earn a living wage. Jack Sheridan said, “we have to find a way to allow all citizens, regardless of their income levels, the right to participate in jury service. It’s the only time that the average citizen has a chance to fight back against abuses by big companies and big government, and we have to make sure that the jury is a jury of our peers. We can’t let the right to a fair trial be diluted.”
As to the racial diversity issue, the petitioners rely on the results of the 2016 juror survey done for the courts showing that white jurors in King County are systematically “overrepresented” in the juror pool, while black jurors are systematically “underrepresented.” See petition at A-50. Supreme Court Justice Wiggins has written that in the criminal context, studies suggest that when comparing a diverse jury to an all-white jury:
All-white jurors tend to spend less time deliberating, make more errors and consider fewer perspectives. . . . In contrast, diverse juries were significantly more able to access reliability and credibility and avoid presumptions of guilt and fairly judge criminally accused in a criminal case. By every deliberation measure heterogenous groups outperformed homogenous groups. These studies seem to confirm what seems obvious from reflection: A more diverse group of juries has a result of fairer trials.
Jack said, “What good is the right to a jury trial if the deck is stacked against you at the start, and the deck is stacked against black plaintiffs in King County and in most counties in the state. The Supreme Court needs to step in and create rules to ensure the juror pool is diverse racially and economically.”
Click here to see copy of Supreme Court Petition
Click here to see Supreme Court letter
Below is a video on race and juries in America
Click below for link to Court of Appeals website to hear Johnson v. City of Seattle oral argument
https://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showOralArgAudioList&courtId=a01&docketDate=20180228
September 5, 2018
Seattle WA
Monroe v. City of Seattle
Today, Cita Monroe filed a petition for review with the State Supreme Court. This is from the introduction of the Supreme Court Petition. See if you feel differently about your own views after reading this. We all have implicit bias, and these two petitions seek to address that issue head on, and other important issues so that black plaintiffs can get a fair trial.
At the recommendation of a City retained doctor, a disabled white woman with a documented history of anxiety and depression, was transferred from one City of Seattle department to another as an accommodation, because the City’s doctor opined that in her then current assignment, “her increase in anxiety and depression symptoms would limit her ability to adequately concentrate, withstand day-to-day usual work stresses and interact appropriately with supervisors and coworkers.” So the disabled white woman was transferred to the City’s Department of Transportation, and was assigned to work under the supervision of a six foot two, 305-pound black male supervisor with a history of aggressive behavior at work.
One day her black supervisor cornered the disabled white woman in a women’s restroom at work. He stood outside the restroom door pounding with his fist and yelling for her to get out. He wanted her to take a fitness for duty exam off site, and she said she would go, but she wanted her sister, also an employee, to accompany her, because the disabled white woman was afraid to be alone with this large, black man. Her anxiety peeked in the women’s restroom; she had soiled herself in fear; she called her shop steward from inside the restroom. Through the telephone, the white shop steward heard the yelling and banging, and after the disabled white woman handed the black manager the phone through a partially opened restroom door, she proposed having a third party join them. The black manager yelled at the shop steward saying, “It’s too late” [for the disabled white woman to get the fitness for duty exam now]. The disabled white woman left the workplace after her security badge was taken.
The disabled white woman was then terminated for leaving her work place and for refusing the fitness for duty exam despite testimony to the contrary.
The facts stated above describe the case of the petitioner with one vital exception—Petitioner Aloncita Monroe is not white; she is black.
Many white readers of these paragraphs may have been horrified and outraged by the black manager’s treatment of the disabled white woman in the workplace. Yet for reasons they may not be able to explain, they may find that the effect of knowing now that the female employee is actually black, has somewhat diminished the outrage and horror felt in hearing the facts.[1] This is the nature of implicit bias: bias held by all of us including by the jury, the judge, and all persons present at trial.
In recent history, in some states, lesser conduct by a black man, if directed against a white woman, could have led to a lynching.[2] In those same states, this author knows of no instance in which the same alleged conduct by a black or white man against a black woman, ever led to a lynching. It may be that white society discounts the significance of violence against black women.[3]
A means of fighting against such bias in the courtroom is through the use of an implicit bias jury instruction. The petitioner proposed two, but the Respondent City of Seattle vehemently objected to their use, and the Honorable John Erlick agreed with the respondent. He also excluded a pretext instruction proposed by the petitioner, a continuing duty to accommodate instruction proposed by the petitioner, and included an essential functions element in the disability discrimination instruction even though the trial court admitted its inclusion made little sense and was confusing.
During deliberations, Mr. Willie J. Neal, Jr., the only black juror out of the twelve deliberating jurors, left the deliberations to visit the restroom. Judge Erlick had cautioned the jury not to deliberate unless everyone was in the room. At the time of his departure, he and two white jurors had voted in favor of plaintiff’s failure to accommodate claim. While in the restroom, he could hear talking. When he came out, without further discussion, a new vote was taken, and without explanation or discussion, one of the two white jurors changed her vote now voting against liability. Immediately, the Asian American foreperson pressed the button to summon the clerk and to present their decision. The jury was polled and confirmed a 10-2 verdict for the City on the failure to accommodate claim and 11-1 verdicts on the other claims. Two days later, Mr. Neal completed a sworn statement outlining these troubling facts. He concluded that improper deliberations occurred while he was in the restroom. CP 972-74 (Appendix at 1-3).
The Neal Declaration became the focus of plaintiff’s motion for a new trial, but the uncontradicted sworn statement by Mr. Neal, the only black juror, was not enough to overturn the verdict. The City submitted no contradictory evidence from any other juror or any other source. Judge Erlick denied the motion and asked, “How do we know that it wasn’t the African American juror’s implicit bias towards your client?” See RP (1/27 Albino) 17 (emphasis added). The following exchange followed:
SHERIDAN: Well, that is the difficulty, Your Honor, is that we — we have to be mindful that our own implicit biases don’t infect the proceedings here today. And the whole purpose — the whole purpose of the implicit bias jury instruction and the whole purpose of the ABA’s . . . 2016 guidance[4] on how we should conduct jury trials is that this exists in everything we do, and it exists in whites against blacks. That’s what the studies say. And the terrible part about not giving that instruction, given the fact that the ABA says to give it, is that it’s not like, you know, the global warming argument where you an find 1 percent of the scientific community say, ‘There’s no evidence.’ We have a situation where every single scholarly article — including Judge Doyle’s article, which I just happened to see yesterday — they all say that it is helpful to address implicit bias head-on. And — and —
THE COURT: And you did.
SHERIDAN: — yes.
THE COURT: You addressed it in voir dire. You addressed in the opening — your opening statement. You addressed it in your closing argument. You raised it throughout this entire trial.
. . . .
SHERIDAN: … [S]ometime in our lives, Judge, it is going to be a no-brainer that implicit bias is examined, and maybe those — maybe that test is going to be given during jury — during — you know, during jury orientation to sensitize people. But also, to get back to what you said, which is the idea of Sheridan got to argue it; what’s the harm? Well, we have extensive citation in our briefs where courts have said there’s a big difference between having an instruction and having a defense — a plaintiff’s or defense lawyer argue something. The instruction is — carries the weight. The lawyers arguments — remember the first thing out of [defense counsel] Mr. Johnson’s mouth when he — when he stood up was — in closing was, ‘Well, good thing this is argument. You don’t have to believe what Sheridan said.’ And that’s the difference between you saying it and me saying it. And, basically, the cases that – you’ll see them in our reply brief and other places — but it’s — basically says that, you know — the Townsend case, it says, ‘It’s unreasonable to expect jurors, aided only by arguments of counsel, will intuitively grasp a point of law until recently eluded by both judge . . . — ’
RP (1/27 Albino) 17; see also RP (12/19 Moll) 1916.
This exchange with this highly respected white trial judge demonstrates that implicit bias infects us all, and that failure to give an implicit bias jury instruction in this case is a constitutional violation and an abuse of discretion, because an implicit bias jury instruction promotes consciousness and introspection, which are methods of fighting those biases.[5] The uncontested sworn statement of the only black juror should have been enough to support a new trial. His sworn factual testimony was strong circumstantial evidence of juror misconduct in violation of the Washington State Constitution and the failure to grant a new trial was an abuse of discretion.
Today more than ever, we need a frequent recurrence to fundamental principles because—today more than ever—it is essential to the security of individual rights and the perpetuity of free government. Const. art. I, § 32. The overarching issue is, what Supreme Court actions are needed to ensure that a black person gets a fair trial in Washington State? If this Court does nothing, injustice will prevail and discontent will ferment in all affected communities.
This petition for review should be accepted by the Supreme Court because the petition raises significant questions of law under the Constitution of the State of Washington; and involves issues of substantial public interest that should be determined by the Supreme Court. RAP 13.4(b) (3) and (4). Additionally, once the juror misconduct is confirmed, the petition demonstrates that the Court of Appeals decision is in conflict with Supreme Court precedent. RAP 13.4(b) (1). Upon review, the jury verdict should be set aside and a new trial granted with new rules requiring an implicit bias instruction when requested and for evaluating juror misconduct.
[1] According to prominent scholar and expert witness Dr. Anthony Greenwald, “seventy percent of Americans hold implicit prejudiced views based on race, color, national origin and ethnicity.” Samaha v. Washington State Dep’t of Transp., No. CV-10-175-RMP, 2012 WL 11091843, at *1 (E.D. Wash. Jan. 3, 2012).
[2] See Equal Justice Initiative, “Lynching In America: Confronting The Legacy Of Racial Terror,” Third Edition, available at: https://lynchinginamerica.eji.org/report/.
[3] “The legal and social double standard that allowed white men to commit sexual violence against black women with impunity, while the most baseless fear of sexual contact between a black man and white woman resulted in deadly violence, continued after emancipation. Nearly one in four black people lynched from 1877 to 1945 were accused of improper contact with a disabled white woman.” Equal Justice Initiative, available at https://eji.org/history-racial-injustice-sexual-exploitation-black-women.
[4] See American Bar Association, Principles for Juries and Jury Trials, Principle 6(c) (2016), filed at CP 1127 (Appendix at 26).
[5] “Research on the role of attention in weakening the effects of implicit cognition . . . supports consciousness raising as a strategy for avoiding unintended discrimination. That is, when a decision maker is aware of the source and nature of a bias in judgment, that bias may effectively be anticipated and avoided. Consciousness raising may also have some value in attenuating implicit bias when the source of implicit bias is not properly identified, as suggested by findings that attentional effort reduces effects of weak cues.” Greenwald, A. G., & Banaji, M. R. (1995). “Implicit social cognition: Attitudes, Self-Esteem, and Stereotypes.” Psychological Review, page 16. Available at: http://faculty.washington.edu/agg/pdf/Greenwald_Banaji_PsychRev_1995.OCR.pdf.
Click here to see a copy of the Monroe Supreme Court Petition
Click below for link to Court of Appeals website to hear related case of Monroe v. City of Seattle oral argument
https://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showOralArgAudioList&courtId=a01&docketDate=20180605
State Court judges are elected by the people at every level. They campaign for election and reelection. Attend forums where the candidates speak and ask:
That’s a good start. Dialogue is the first step toward change. The Sheridan Law Firm and other law firms throughout the State that focus on civil rights will continue to bring these issues to the attention of trial judges and judges at the appellate level until our judiciary recognizes that black civil rights matter, and until they do something about it.
