Prosecutor Rejects Juror Because of Race

Here are some of the highlights from the recent King County Prosecutor’s Office case where it was found that they rejected a juror based on race:

— The KCPO showed its awareness of racial disparities by asking potential jurors if they had knowledge of racial disparities and if this knowledge would make them more lenient to black defendants.  So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.  Certainly this is not what UW Law administration means by using the clinic to familiarize us students with racial disparities.

— Among its various excuses, the KCPO also said it rejected the juror because he had been on a jury previously that failed to reach a verdict.  As it turned out, that was the other potential black juror.  KCPO had confused the two black potential jurors–a fact which they admitted in their briefs and then denied in their oral argument.

— KCPO then said that they rejected the juror because he raised his hand to indicate that he did not think past conduct would have a bearing on determining guilt or innocence; however, the KCPO did not strike 15 jurors who answered the same way.

—  KCPO said that they rejected the juror because he used the term “brother;” the Division I Court of Appeals wisely held that this “explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Yet these are the people UW Law has chosen to teach us about racial disparities.

On to the full story…

Last summer, the King County Prosecutor’s Office (KCPO) was called out for rejecting jurors because they were African American.  In under 10 pages, the Division I Court of Appeals considered the excuses proffered by the KCPO and found that:

“the proffered reasons for the strike are unsupported by the record, appear ‘pretextual’ because similar jurors were not excused from sitting, or appear to be mere “proxy” reasons for racially motivated excusal.”

To put it in legal terms, the KCPO lost a Batson case.*

This decision came just two months after UW Law administration decided to host a prosecution clinic with the KCPO.  When students and community members suggested it was not a good use of resources, the administration began to describe the clinic as one that would help sensitize students to issues of racial disparities.

But according to many of us students, UW Law has not shown an interest in racial justice. In fact, students at UW Law have been asking for a Critical Race Theorist and a Diversity Plan for years; we have neither.  Then, after just two months of emails between faculty and prosecutors, we have a Prosecution Clinic claiming to be concerned with racial justice.

We already had evidence that KCPO and UW Law are hostile toward or chronically disinterested in racial justice, and this case gives us another perspective on the culture at KCPO and less directly, the culture at UW Law, as the school insists on staying the course with its hurtful plan to team-teach a prosecution clinic with KCPO.

In the decision, State of Washington v. Misty Lou Cook and Pierre Daniel Spencer-Wade, we get to see a bit more into the culture of the prosecutor’s office which is teaming up with our own UW Law.

The KCPO said that they rejected this juror (Juror No. 34) not because of race but due to a variety of reasons, including that he used the term, “brother.”  The Division I Court of Appeals wrote that the term’s “use by the State in its purported race-neutral explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Another KCPO explanation: Juror No. 34 had set on a jury that had been unable to reach a verdict.  However, the record showed that it was Juror No. 5, the only other black juror.  In “its briefing, the State conceded that the prosecutor confused Juror No 34 with the other African-American juror, No. 5, but at oral argument the State retracted this concession.”  So in brief the KCPO actually admitted that it could not discern between the two black potential jurors.  And then they unadmitted in court.  We students believe this further indicates that KCPO cannot teach UW Law students about racial disparity because they have a culture more concerned with winning than with justice.

Another reason the King County Prosecutor claimed to have stricken No. 34 was that he “missed a simple corroboration question.”  In fact 15 other potential jurors answered similarly, and 5 of them were selected for the jury.  (And what’s more is that No. 34’s reply was correct and in line with the rules of evidence.)  Citing precedent, the court quoted: “if the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination…”

Interestingly, the Court of Appeals wrote that “it was the State who first raised the issue of Spencer-Wade’s race.  The prosecutor spoke of racial inequities suffered by African-Americans and inquired into any bias the jurors might have that would make them more lenient toward [the defendant] because of his race.” So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.

So, again, please write the decision makers and let them know that this clinic is an awful idea, for many reasons, including the culture at KCPO and UW Law’s reluctance to act on diversity issues students have pushed for years. See previous blog entries for ideas on what your letter could look like.  The decision makers can be contacted at:

Dean Testy <lawdean@uw.edu>, Prof. Maranville <maran@uw.edu>, UW President Michael Young <pres@uw.edu>, UW Provost <provost@uw.edu>, Board of Regents <regents@uw.edu>

Please tell them why UW Law needs a Critical Race Theorist and a Diversity Plan; tell them to cancel the prosecution clinic and to commit to clinics that address unmet legal needs. And if you like, Cc us at uwlawracialjustice@gmail.com  Please be kind and respectful; the administration has been both, and anyway, honey attracts more bees than vinegar.

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*In Batson v. Kentucky, the United States Supreme Court set forth a three-part analysis to determine whether a member of the venire was peremptorily challenged pursuant to discriminatory criteria. First, a defendant must establish a prima facie case of purposeful discrimination. Second, if the defendant establishes a prima facie case, then the burden shifts to the State to articulate a race-neutral explanation for challenging the juror. Third, the trial court considers the explanation of the State and determines whether the defendant has established purposeful discrimination.

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