City of Seattle v. Erickson

Opinion

This opinion was filed for record

at. 8~00 ~ onJ IA~ ~) 1,oJ'/ Cl&r-ci.&~ SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF SEATTLE, ) ) Respondent, ) No. 93408-8 ) V. ) En Banc ) MATTHEW ALEX ERICKSON, ) ) Filed - -JUL -- 6 2017 O- ---- Petitioner. ) __________ )

OWENS, J. - In 2013, Matthew Erickson, a black man, was charged in Seattle

Municipal Court with unlawful use of a weapon and resisting arrest. After voir dire, the

city of Seattle (City) exercised a peremptory challenge against the only black juror on

the jury panel. After the jury was empaneled and excused from the courthouse with the

rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was

racially motivated. The court found that there was no prima facie showing of racial

discrimination and overruled Erickson's objection.

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),

guarantees a jmy selection process free from racial animus. Yet, we have noted that our City ofSeattle v. Erickson No. 93408-8

Batson protections are not robust enough to effectively combat racial discrimination

during jury selection. We have repeatedly signaled our desire to better effectuate the

equal protection guaranties espoused in Batson. However, we had not yet found the

opportunity to do so. Now, by explicitly asking this court to amend our Batson analysis

and squarely briefing the issue, Erickson has provided that opportunity. As a threshold

matter, we find that Erickson's Batson challenge was timely. We further adopt the

bright-line rule first espoused by the dissent in State v. Rhone, 168 Wn.2d 645, 652 n.5,

229 P.3d 752 (2010) (plurality opinion). We amend our Batson framework and hold

that the peremptory strike of a juror who is the only member of a cognizable racial

group constitutes a prima facie showing of racial discrimination requiring a full

Batson analysis by the trial court.

FACTS AND PROCEDURAL HISTORY

In June 2013, Officer Kevin Oshikawa Clay observed Erickson near Westlake

Park in Seattle, Washington. He testified that Erickson was walking down the

sidewalk backward and with a knife drawn, followed by several other individuals.

Clay and his partner followed Erickson into the Pacific Place shopping center, drew

their weapons, and ordered Erickson to drop the knife. Erickson complied, but

refused to follow the officers' instructions to lay facedown on the floor. After a

prolonged physical struggle throughout which Erickson refused the officers'

commands and resisted their physical efforts to restrain him, the officers subdued him

2 City ofSeattle v. Erickson No. 93408-8

and took him into custody. He was charged in Seattle Municipal Court with unlawful

use of a weapon and resisting arrest.

After voir dire, each party exercised three peremptory strikes. The City used

one of those strikes against juror 5, the only black juror on the panel, and Erickson

made no objections at the time. 1 The six-person jury was subsequently seated, the rest

of the venire excused, the jury sworn in, and the jury dismissed for the day. Erickson

then objected to the striking of juror 5 pursuant to Batson, noting it was the first

opportunity he had to do so without being "directly in front of the jury." 1 Verbatim

Report of Proceedings (VRP) (Oct. 21, 2014) at 180.

Erickson argued that the City violated Batson when it struck juror 5. He

claimed that the striking of the only juror from a cognizable racial group made a

prima facie case that the juror was struck based on race. The City rebutted that

Erickson had waived his right to a Batson challenge, claiming the objection was

brought after the venire had been dismissed and the jury excused for the day, thereby

making the objection untimely. It further argued that Erickson had not made a prima

facie case of discrimination because Batson stands for the "proposition that there

1 The trial court noted it could not conclude with certainty that juror 5 was the only black individual in the venire. However, the trial court and the parties could specifically remember four other "people of color" who were seated on the panel as well as another in the venire; they identified none of them as African American. 2 Verbatim Report of Proceedings (Oct. 22, 2014) at 193-95, 206-07.

3 City of Seattle v. Erickson No. 93408-8

needed to be a pattern or practice of discrimination." 2 VRP (Oct. 22, 2014) at 200-

01. It claimed the act of striking a single juror could not constitute such a pattern.

The municipal court found that Erickson had not waived the Batson challenge.

However, it also found that Erickson had not presented a prima facie case for

discrimination. Though juror 5 may have been the only black juror, there were a

number of other jurors from "constitutionally cognizable groups" who remained on

both the panel and venire after juror S's strike. 2 VRP (Oct. 22, 2014) at 206-07. The

court and the parties specifically identified five other individuals as "people of color,"

but did not explicitly speculate about those individuals' racial backgrounds or

identities. Id. at 193-95, 205-07.

The court conceded that striking a single juror of a particular race could, under

certain circumstances, rise to the level of prima facie discrimination. However, the

court noted that it saw no such circumstances in this case. Because the municipal

court ruled against Erickson on the first step of the Batson analysis, it terminated the

analysis and allowed the trial to move forward. Erickson was convicted on both

counts.

Erickson appealed the municipal court's decision to King County Superior

Court. The superior court affirmed the municipal court, finding that the circumstances

surrounding the challenge did not raise any inference that the juror was stricken

because of his race. The judge did not address whether Erickson's motion was timely.

4 City of Seattle v. Erickson No. 93408-8

Erickson then petitioned the Court of Appeals for discretionary review, which it

denied. His motion to modify the commissioner's ruling was similarly denied. He

finally petitioned this court for discretionary review, which was granted. City of

Seattle v. Erickson, 187 Wn.2d 1008, 386 P.3d 1098 (2017).

ISSUES

1. Did Erickson waive his right to a Batson challenge when he objected after the

jury was empaneled and both the jury and venire excused?

2. Did the trial court err in finding that Erickson did not make a prima facie

showing of racial discrimination when the City struck juror 5?

STANDARD OF REVIEW

On one level, this case hinges on a procedural question about the appropriate

timing for a challenge to a peremptory strike under Batson. On another level, this

case represents the struggle to defend our equal protection guaranties and to continue

fighting against racial discrimination in the jury selection process.

Batson created a three-part test to replace the "'crippling burden of proof"'

previously required when attempting to prove a racially motivated strike. State v.

Saintcalle, 178 Wn.2d 34, 43-44, 309 P.3d 326 (2013) (plurality opinion) (quoting

Batson, 476 U.S. at 92). First, the defendant must establish a prima facie case that

"gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 94.

Second, if a prima facie case is made, the burden shifts to the prosecutor to provide an

5 City ofSeattle v. Erickson No. 93408-8

adequate, race-neutral justification for the strike. Id. Finally, if a race-neutral

explanation is provided, the court must weigh all relevant circumstances and decide if

the strike was motived by racial animus. Johnson v. California, 545 U.S. 162, 168,

125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (quoting Purkett v. Elem, 514 U.S. 765,

767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam)).

Though the United States Supreme Court provided this framework, it left the

states to establish rules for the "particular procedures to be followed upon a

defendant's timely objection to a prosecutor's challenges." Batson, 476 U.S. at 99.

These local rules can define when an objection is timely. Ford v. Georgia, 498 U.S.

411,423, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). A trial judge's decision under the

original Batson test is entitled great deference and will be reversed only if the

defendant can show it was clearly erroneous. Hernandez v. New York, 500 U.S. 352,

364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). However, this court has great

discretion to amend or replace the Batson requirements if circumstances so require.

See Saintcalle, 178 Wn.2d at 51.

As a threshold matter, we first must decide whether Erickson can bring a

Batson challenge after the jury is empaneled and the rest of the venire excused. We

then decide whether the municipal court erred when it found that Erickson had not

established a prima facie case of racial discrimination in violation of equal protection.

WASH. CONST. art. I, § 12. We find that Erickson's objection was timely and that the

6 City ofSeattle v. Erickson No. 93408-8

municipal court erred when it failed to infer racial bias from the dismissal of the only

black juror on the jury panel.

1. Erickson Did Not Waive His Right to a Batson Challenge When He Objected to the Striking of a Juror after the Jury Was Empaneled but before . Testimony Was Heard

As noted above, the United States Supreme Court has left it to state courts and

legislatures to determine the procedure surrounding Batson challenges. Ford, 498

U.S. at 423. This court has not yet ruled on when a defendant may bring an objection

under Batson. However, objections must generally be raised "at a time that will

afford the [trial] court an opportunity to correct [the error]." State v. Wicke, 91 Wn.2d

638, 642, 591 P.2d 452 (1979) (citing State v. Fagalde, 85 Wn.2d 730, 539 P.2d 86

(1975)). In the past, this court has reviewed a Batson challenge brought after the jury

was empaneled, though we declined to review the timeliness issue. Rhone, 168

Wn.2d at 652 n.5. We now choose to address it.

Several state and federal jurisdictions allow Batson challenges even after a jury

has been selected and sworn in. Virginia has developed a statutory rule that allows a

challenge after the jury has been sworn "with leave of court." Lewis v.

Commonwealth, 25 Va. App. 745,749,492 S.E.2d 492 (1997) (citing VA. CODE ANN.

§ 8.01-352). Texas, too, has developed a rule allowing a defendant to bring a

challenge after the jury is empaneled if the claim is "so novel" or the law "so well

7 City ofSeattle v. Erickson No. 93408-8

settled" as to require it. Jones v. Martin K. Eby Constr. Co., 841 S.W.2d 426,428

(Tex. Ct. App. 1992).

A number of federal courts also allow Batson challenges after the jury has been

sworn. In United States v. Thompson, the Ninth Circuit upheld a Batson challenge as

timely even though it came after the swearing-in of the jury, noting the objectionable

action "might not have been apparent until the jury was selected." 827 F.2d 1254,

1257 (9th Cir. 1987). That court later clarified its ruling, indicating that Batson

challenges can be proper after a jury is sworn, but "must occur as soon as possible."

Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (citing Thompson, 827 F.2d

at 1257). The Seventh Circuit similarly allows Batson challenges after the swearing

of a jury ifit is the party's earliest opportunity. United States v. Williams, 819 F.3d

1026, 1029 (7th Cir. 2016). In contrast, the Eight Circuit gives deference to the trial

courts in determining whether a Batson challenge brought after jury selection is

appropriate. See Reynolds v. City of Little Rock, 893 F.2d 1004, 1009 (8th Cir. 1990).

We have not ruled on the timeliness of Batson challenges. However, finding

the above approaches persuasive, we now hold that Erickson's Batson challenge was

timely. Read together, the above decisions have adopted rules requiring that a Batson

challenge be brought at the earliest reasonable time while the trial court still has the

ability to remedy the wrong. These cases recognize that judges and parties do not

have instantaneous reaction time, and so have given both trial courts and litigants

8 City of Seattle v. Erickson No. 93408-8

some lenience to bring Batson challenges after the jury was been sworn. This is in

line with our own jurisprudence. Objections should generally be brought when the

trial court has the ability to remedy the error, and allowing some challenges after the

swearing in of the jury does not offend that ability. Wicke, 91 Wn.2d at 642.

In this case, Erickson did not bring his objection until just after the jury had

been excused for the day and the venire dismissed. He noted that this was the first

time the parties had been out of the presence of the jury. As the municipal court

acknowledged, this limited the court's remedial options, but it did not remove them

completely. Had the challenge been brought sooner and had the judge sided with

Erickson, the judge may have placed the stricken juror back on the panel or dissolved

the venire and called a new jury pool. Though these options were unavailable once

the jury was sworn in, the judge could still declare a mistrial to address any error on

the prosecution's part. When Erickson made his challenge, no other motions had been

filed, no testimony heard, and no evidence admitted. The timing was not ideal, but

the challenge was raised when the trial court still had an opportunity to correct it. We

find that even though Erickson brought his challenge after the jury was empaneled,

the trial court still had adequate ability to remedy any error. Therefore, Erickson

made a timely challenge and we continue to the second issue for review.

9 City of Seattle v. Erickson No. 93408-8

2. The Municipal Court Erred When It Found That Erickson Had Not Provided a Prima Facie Case ofRacial Discrimination in the Removal of Juror 5

As noted above, the United States Supreme Court has left it to the states to

provide Batson procedures. Ford, 498 U.S. at 423. Washington trial courts have

traditionally given great discretion to findings of prima facie discrimination under

Batson, and we review such traditional findings for abuse of that discretion. State v.

Hicks, 163 Wn.2d 477, 490-91, 181 P.3d 831 (2008). However, we also have the

power to determine, under appropriate circumstances, whether the traditional Batson

analysis should be amended or replaced to ensure the promise of equal protection.

Saintcalle, 178 Wn.2d at 51.

A. This Court Has Not Foreclosed the Possibility of Adopting a Bright- Line Rule under Batson

This court recognized a trial court's discretion in finding prima facie

discrimination in Hicks. There, the trial court found a prima facie showing of

discrimination after the sole black jury member was struck. 163 Wn.2d at 491. We

found that the trial court was "well within [its] discretion" to make such a finding,

noting that Batson affords broad leeway to trial courts when it comes to prima facie

showings. Id. at 490-91. We reaffirmed this holding in State v. Thomas, 166 Wn.2d

380, 397, 208 P.3d 1107 (2009).

We later signaled that this rule could be subject to change under particular

circumstances. In Rhone, the defendant made a Batson challenge after the State

10 City ofSeattle v. Erickson No. 93408-8

struck the last remaining African American member of the jury panel. 168 Wn.2d at

648-50. Five justices held that the trial court did not err in not finding a prima facie

case when the sole black juror was struck. Id. at 655-56. In so doing, we declined to

adopt a bright-line rule that the striking of the sole member of a particular race is a per

se prima facie showing of discrimination. Id. at 653.

However, four dissenting justices and one concurring justice suggested that a

bright-line rule would be appropriate. Id. at 661 (Alexander, J., dissenting), 658

(Madsen, C.J., concurring). The dissent reasoned that such a rule would not only lead

to greater protection from racial discrimination, but would help effectuate

Washington's elevated right to a fair jury trial. Id. at 661 (Alexander, J., dissenting).

Those justices disagreed with the lead opinion that such a rule would change "a shield

against discrimination into a sword cutting against the purpose of a peremptory

challenge." Id. at 654 (C. Johnson, J., lead opinion). Rather, they believed it would

"merely require the State to offer a race-neutral explanation for its peremptory

challenge." Id. at 662 (Alexander, J., dissenting). Then Chief Justice Madsen's

concurrence added that although applying such a rule would be inappropriate in the

case before her, it could legitimately be applied "going forward." Id.

Justice Madsen clarified this statement in State v. Meredith, 178 Wn.2d 180,

306 P.3d 942 (2013). She reasoned that because the parties were not on notice of a

bright-line rule in Rhone itself, it was inappropriate to apply such a rule under

11 City ofSeattle v. Erickson No. 93408-8

Rhone's facts. Id. at 186 (Madsen, C.J., concurring). However, she explained that

"this alternative method of establishing the prima facie case [i.e., the bright-line rule]

should be available once trial courts, prosecuting attorneys, and defendants and their

counsel are on notice that this rule may be followed." Id. at 186.

This court also used the majority opinion in Meredith to clarify the Rhone

decision. 178 Wn.2d at 184. We stated that despite the chief justice's concurrence

expressing intent to adopt a bright-line rule going forward, it did not provide a

binding, five-justice (or mon;) precedent. Id. We did not foreclose the possibility of

eventually adopting such a rule. Rather, "[u]ntil [at least] five justices agree to

actually adopt such a bright-line rule, the previous rule remains in effect." Id.

We most recently declined to alter the Batson framework in Saintcalle. There,

the lead opinion noted that although this court has power to alter or replace the Batson

framework, it ought not to do so when "[n]either party has asked for a new standard or

framework" and when the trial court and the Court of Appeals did not consider such

an argument. Saintcalle, 178 Wn.2d at 55. In this case, however, Erickson does ask

for a reworking of Batson. He requests that we alter the standard framework to adopt

a bright-line rule. Though this court declined to do so in Saintcalle, Meredith, and

Rhone, the possibility of altering Batson's framework is not closed to us. Erickson's

case presents the circumstances Rhone alluded to, allowing us to amend our Batson

analysis.

12 City of Seattle v. Erickson No. 93408-8

B. We Adopt the Bright-Line Rule First Articulated in the Rhone Dissent

We now follow our signal in Rhone and adopt a bright-line rule. The purpose

of Batson is to ensure that jury selection proceedings are free from racial

discrimination. To create a prima facie case of racial discrimination, a defendant must

first demonstrate that the struck juror is a member of a "cognizable racial group."

Batson, 476 U.S. at 96. Though a pattern of striking multiple jurors may demonstrate

racial animus, "' [t ]he Constitution forbids striking even a single prospective juror for

a discriminatory purpose."' Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203,

170 L. Ed. 2d 175 (2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902

(9th Cir. 1994)).

Here, the trial court erred in the first step of its Batson analysis. The court

noted that it could not discern a pattern of discriminatory strikes in part because other

people of color remained on the jury. It found further that because there were other

people of color, the jury was "diverse." With these findings, the court ruled Erickson

had not provided a prima facie showing of discrimination.

The trial court improperly applied the first step of the Batson analysis. First, it

is misguided to infer that leaving some members of cognizable racial groups on a jury

while striking the only African American member proves the prosecutor's strike was

not racially motivated. Batson is concerned with whether a juror was struck because

of his or her race, not the level of diversity remaining on the jury. Saintcalle, 178

13 City ofSeattle v. Erickson No. 93408-8

Wn.2d at 42. In addition, a Batson violation can occur if even one juror is struck. We

have noted that "'[a] single invidiously discriminatory governmental act is not

immunized by the absence of such discrimination in the making of other comparable

decisions."' Hicks, 163 Wn.2d at 491 (alteration in original) (internal quotation marks

omitted) (quoting Batson, 476 U.S. at 95). Though a pattern is informative, it is not

necessary.

In addition, Erickson made his prima facie showing of discrimination. He

challenged the prosecutor's peremptory strike based on the fact that juror 5 was the

only black juror on the panel. The municipal court should have followed the example

of the trial court in Hicks, at the least finding a prima facie case out of '"an abundance

of caution."' Id. at 484. This single strike, absent other circumstances showing

legitimate grounds, was enough to trigger a prima facie finding. The trial court

improperly relied only on the absence of a pattern and the presence of other nonwhite

jurors to come to its conclusion. We find the trial court erred in its first step of the

Batson analysis and Erickson properly made a prima facie showing of racial

discrimination.

In light of these errors, we have broad discretion to alter the Batson framework

to more adequately recognize and defend the goals of equal protection. Saintcalle,

178 Wn.2d at 51. In the past, this court has provided great discretion to the trial court

when it comes to the finding of a prima facie case pursuant to a Batson challenge. To

14 City of Seattle v. Erickson No. 93408-8

ensure a robust equal protection guaranty, we now limit that discretion and adopt the

bright-line Rhone rule. We hold that the trial court must recognize a prima facie case

of discriminatory purpose when the sole member of a racially cognizable group has

been struck from the jury. The trial court must then require an explanation from the

striking party and analyze, based on the explanation and the totality of the

circumstances, whether the strike was racially motivated. Batson, 476 U.S. at 94;

Saintcalle, 178 Wn.2d at 42.

This alteration does not change the basis for a Batson challenge. The evil of

racial discrimination is still the evil this rule seeks to eradicate. Rather, this alteration

provides parties and courts with a new tool, allowing them an alternate route to defend

the protections espoused by Batson. A prima facie case can always be made based on

overt racism or a pattern of impermissible strikes. Now, it can also be made when the

sole member of a racially cognizable group is removed using a peremptory strike.

This court has long discussed a change to the Batson framework. In Rhone, we

signaled our intent to change our analysis, putting both courts and parties on notice of

that change. In Meredith, we declared that once at least five justices agree, a bright-

line rule could be adopted. In Saintcalle, we lamented the inadequate state of our

Batson inquiry but declined to alter it because neither party had raised the issue.

Here, the circumstance is different. Erickson explicitly advocates for a change to the

Batson test. Both parties have briefed the issue and placed it squarely before us. We

15 City of Seattle v. Erickson No. 93408-8

are not hampered with the same constraints that weighed us down in previous cases.

We first find that Erickson has made a prima facie case of discrimination. We further

take this opportunity to alter the Batson framework and adopt the bright-line rule

described in the Rhone dissent.

3. Remand for a New Trial Is the Appropriate Remedy

Traditionally, the remedy for this error would be to remand to the trial court for

a complete three-part analysis as the United States Supreme Court did in Batson itself.

476 U.S. at 100. But Erickson urges that ifwe adopt a new bright-line rule and find a

prima facie case of discrimination, we should remand for a new trial. We agree. The

trial court's in-person examination of the credibility and demeanor of the prosecutor

and jury is essential in a Batson analysis. Hicks, 163 Wn.2d at 493. Here, the passage

of time since the ruling would make this analysis problematic. Erickson's presiding

judge has left the Seattle municipal bench. Even if he had not, he heard the original

challenge in October 2014, two and a half years ago. It would be unreasonable to

require the trial court to recall and evaluate the prosecutor's demeanor and credibility

after that passage of time, let alone recall and evaluate the jury. It would also be

inappropriate to dismiss Erickson's charges outright. See State v. Grenning, 169

Wn.2d 47, 60, 234 P.3d 169 (2010) ("[O]utside of reversal for insufficiency of the

evidence ... , outright dismissal is rarely granted."). However, remand for a new trial

is generally appropriate when other rights, including trial rights, have been violated.

16 City of Seattle v. Erickson No. 93408-8

See id. at 61; State v. Brightman, 155 Wn.2d 506,518, 122 P.3d 150 (2005); State v.

Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991); State v. Russell, 101 Wn.2d 349,

354, 678 P.2d 332 (1984). Because of the unavailability of the original trial judge and

the stretch of time since the original challenge, we remand the case for a new trial.

CONCLUSION

We have repeatedly recognized that Batson is a particularly difficult hurdle to

overcome. As Justice Wiggins noted in Saintcalle, "Batson ... appears to have

created a 'crippling burden,' making it very difficult for defendants to prove

discrimination even where it almost certainly exists." 178 Wn.2d at 46. This

underscores the need to amend our procedures and ensure that jury selection is more

secure from the threat of racial prejudice. As a threshold matter, we find that

Erickson's Batson challenge was timely. More significantly, we adopt Rhone's

bright-line rule. We hold that the peremptory strike of a juror who is the only member

of a cognizable racial group on a jury panel constitutes a prima facie showing of racial

motivation. The trial court must ask for a race-neutral reason from the striking party

and then determine, based on the facts and surrounding circumstances, whether the

strike was driven by racial animus.

We reverse and remand to the trial court for a new trial.

17 City of Seattle v. Erickson No. 93408-8

WE CONCUR:

18 City ofSeattle v. Erickson (Matthew Alex)

93408-8

STEPHENS, J. (concurring)-! find myself once again sounding "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." State v.

Saintcalle, 178 Wn.2d 34, 65, 309 P.3d 326 (2013) (Stephens, J., concurring). I

continue to believe "there are better avenues than judicial opinions" for addressing

this problem. Id at 69. While I have no opposition to the majority's decision to

embrace the bright-line rule articulated in the Rhone dissent, 1 it is neither necessary

nor particularly likely to transform the Batson2 analysis into a useful tool for

combatting racial bias in jury selection.

· The majority's new rule is unnecessary because Matthew Erickson made a

prima facie showing of intentional discrimination under the first prong of the Batson

1 State v. Rhone, 168 Wn.2d 645, 658-64, 229 P.3d 752 (2010) (Alexander, J., dissenting). 2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). City of Seattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

analysis by proving "'something more' than a peremptory challenge of a member of

a racially cognizable group." State v. Rhone, 168 Wn.2d 645, 653, 229 P.3d 752

(2010) (plurality opinion) (emphasis added). Indeed, reversal under the traditional

Batson framework was the sole argument raised in Erickson's motion for

discretionary review. 3 See Mot. for Disc. Review (July 25, 2016) at 10-11 ("Because

Mr. Erickson has shown 'something more'-that Juror 5 was stricken from the

venire for sharing a relevant life experience steeped wholly in racism and racial

tension-he has made the prima facie case for discrimination necessary to satisfy

the first prong of Batson."). He further demonstrated that the trial court erred by

considering his challenge in light of "whether there were members of any

constitutionally protected group on the jury." Id. at 11.

Not only is the majority's new rule unnecessary to the resolution of this case,

it is also unlikely to significantly reduce racial bias in jury selection because the

ultimate inquiry under Batson remains whether the peremptory strike against a sole

member of a constitutionally protected group evidenced intentional race

discrimination. Both the majority and Erickson recognize that presuming

3 Erickson first asked the court to embrace the Rhone dissent' s approach in his supplemental brief after review was granted. Suppl. Br. of Pet'r at 16-18. Amici also advocated for this approach. Br. of Amici Curiae Am. Civil Liberties Union of Wash., et al. at 15-16.

-2- City of Seattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

discrimination under the first step in the analysis is relatively unambitious. See

majority at 11 (quoting Rhone dissent that its rule "'merely require[s] the State to

offer a race-neutral explanation for its peremptory challenge,"' 168 Wn.2d at 662);

Suppl. Br. of Pet'r at 18 (noting "such a bright-line rule does not create a substantial

burden to any party" because "it would merely eliminate the first step of the Batson

analysis"). Considering the range of justifications that have traditionally been

recognized as race-neutral reasons for striking a juror under the second step of

Batson, taking the first step may not represent much progress. See, e.g., J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 143 & n.16, 114 S. Ct. 1419, 128 L. Ed. 2d 89

(1994) (noting peremptory strikes based on juror experiences disproportionately

affecting minority groups remain race neutral absent a showing of pretext);

Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)

(accepting bilingual status as race-neutral reason for striking Latino juror). We are

unlikely to see different outcomes unless courts are willing to more critically

evaluate proffered race-neutral justifications in future cases.

Pending before this court in our administrative rule-making capacity is a

proposed court rule that would alter the method for evaluating claims of race-based

peremptory challenges so that the intentional discrimination that must be proved

under Batson is no longer required. See Proposed General Rule (GR) 37 (Wash.

-3- City of Seattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

2017), 4 http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDis-

play&ruleid=537 [https://perma.cc/YB3Q-U4ZK]. In addition to moving away

from Batson's intentional discrimination inquiry, the proposed rule also recognizes

that many frequently proffered race-neutral reasons for striking jurors "have

operated to exclude racial and ethnic minorities from serving on Juries in

Washington." Id. at cmt. 4. It would therefore create a presumption against the

validity of justifications such as "expressing a distrust oflaw enforcement or a belief

that law enforcement officers engage in racial profiling," or "not being a native

English speaker." Id. at cmt. 4(b ), (g). The proposed rule was formally published

for comment from November 2016 through April 2017, and numerous individuals

and organizations have commented on the rule. See Comments for GR 37 5 (Wash.

2017), http://www.courts.wa.gov/court_rules/?fa=court_rules.commentDisplay&

ruleld=537. The comments address not only the merits of the proposed rule, but also

possible modifications, expansions or alternatives to the rule, and practical

challenges to implementation. The debate has been robust and informative, and has

underscored two truths: (1) Batson has largely failed in its promise to eliminate bias

4 The rule was published as GR 36, but was renumbered as GR 37 due to the court's adoption earlier this year of a court security rule numbered GR 36 (effective April 25, 2017). 5 See note 4.

-4- City of Seattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

in jury selection and (2) finding a meaningful solution goes well beyond simply

tinkering with the first prong of the Batson analysis.

The court has convened a work group to carefully examine the proposed court

rule with the goal of developing a meaningful, workable approach to eliminating

bias in jury selection. That process will be informed by the diverse experiences of

its participants and will be able to consider far broader perspectives than can be heard

in a single appeal. Unconstrained by the limitations of the Batson framework, the

rule-making process will be able to consider important policy concerns as well as

constitutional issues. It would be unfortunate if today's decision adopting the Rhone

dissent's bright-line rule were perceived as somehow signaling that the court has

"fixed the problem." I hope instead that our decision sends the clear message that

this court is unanimous in its commitment to eradicate racial bias from our jury

system, and that we will work with all partners in the justice system to see this

through.

-5- City of Seattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

-6- City of Seattle v. Erickson, No. 93408-8 (Yu, J., concurring)

No. 93408-8

YU, J. (concurring)- I concur with the majority's effort to address the

equal protection concerns expressed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986), and I applaud the adoption of a bright-line rule.

However, I write separately because I am concerned that our solution assumes too

much and falls short on ensuring that no juror is removed solely because of race,

gender, sexual orientation, or religious beliefs. I am unable to say with certainty

that every peremptory challenge by the State against a person of color is motivated

by racial animosity, and adopting a bright-line rule that does not extend to

members of other cognizable groups does not address discrimination on any basis

other than race.

In my view, the basic framework of Batson does not work, and the record in

this case demonstrates the awkwardness and impracticability of the so-called

Batson challenge. Thus, I now join Justice Gonzalez in calling for the complete

abolishment of peremptory challenges. State v. Saintcalle, 178 Wn.2d 34, 69-118,

1 City of Seattle v. Erickson, No. 93408-8 (Yu, J., concurring)

309 P.3d 326 (2013) (Gonzalez, J., concurring). Too many qualified persons are

being excluded from jury service for no reason at all, and tinkering with court rules

or issuing incremental decisions a decade at a time are unsatisfactory solutions. As

Justice Gonzalez wisely stated in his concurrence in Saintcalle,

[T]he 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. The peremptory challenge is an antiquated procedure that should no longer be used.

Id. at 69-70 ( citation omitted).

We should assume that all members of the public who adhere to a summons

to appear for jury service are qualified to hear a case unless otherwise shown. Our

system of jury selection provides a meaningful method for any party to remove a

juror ''for cause" when there is a showing that a particular juror cannot be fair or

impartial. Id. at 77. Because jury selection is such an important part of trial, it

may be time for us to require that counsel be afforded ample time for thoughtful

questioning of prospective jurors, and that removal of jurors must rest solely on

causal challenges.

I respectfully concur.

2 City of Seattle v. Erickson, No. 93408-8 (Yu, J., concurring)