Personal Trial Experience Involving Race-Based Juror Removal, Then Discussion of State v. Tesfasilasye 200 Wn 2d 345

I was just in a Rape of a Child 1 trial. Hung jury. Mistrial. 10-2 to acquit. “Let’s start all over again.” Jury selection is always tough. The Court wisely used a questionnaire for voir dire, and individual questioning of any juror who had particular difficulties with a RoC case. Defense peremptories focused on potential jurors who struggled with classic concepts of “fairness” and “keeping an open mind”. This writer utilized two out of four peremptories for persons who were frank that they struggled with the accusation so much that “thought they could be fair but had reservations.” Both were Asian females. On both, the State challenged the Defense use of a peremptory. Fortunately, the Court was taking good notes and remembered the ambivalence of each declarant’s answer. The peremptories were allowed, but only after the Defense had to explain in detail why it was “utilizing a peremptory,” since General Rule 37 involves an objective standard, including race. The Defense explanation included pointing out that another Asian woman was not going to be challenged; the challenges were based upon the declarant’s ambivalent, equivocal responses. The Court accepted the Defense challenges, but only after this writer’s explanations. It was clear to the Defense that the State preferred jurors who would be emotionally impacted by emotional testimony from an adolescent.

Which leads into discussion of a recent “Batson” challenge appellate case.

Mr. Amanuel Tesfasilasye was convicted of Rape in the Third Degree, and sentenced to 12 months in the King County Jail. Mr. Tesfasilasye is black, and an immigrant from Eritrea, West Africa. During jury trial selection, the State excused from the panel an Asian woman and Latino male, utilizing “peremptory” challenges. “Peremptory” challenges are allowed due to “tradition, statutes and court rules” Tesfasilasye, at 356. The State and Defense “may use peremptory challenges to strike a limited number of otherwise qualified jurors from the venire without providing a reason. These challenges however have a “history of being used based largely or entirely on racial stereotypes or generalizations.” Tesfasilasye, at 356.

Washington General Rule (“GR”) 37 was our supreme court’s attempt to “effectively combat racial discrimination during jury selection.” Id. 356. Defense counsel for Mr. Tesfasilasye objected to peremptory removal of the Asian woman and Latino man, citing GR 37. The rule states that if an objective observer could view race or ethnicity as a factor in the use of peremptory challenge, then the peremptory challenge shall be denied. GR 37(e) [emphasis added]. The Court of Appeals upheld Mr. Tesfasilasye’s conviction, but the Supreme Court reversed by a unanimous 9-0 court!

The review standard for the challenged juror peremptories was “de novo” (Latin for “anew”), meaning the Washington Supreme Court was not bound by the considerations and conclusions on the peremptory challenge by the trial judge. The Supreme Court looked at whether an “objective” observer, which is defined in GR 37(f) as one who “is aware that implicit, institutional, and unconscious biases, in additional to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State,” could have been the bases for removal. The Court held that the standard was whether an objective observer “could view the peremptory challenge as racially motivated, rather than whether the observer “would view it as such,” Id. 356.

The trial judge actually used “would view” in its’ analysis, concluding the State’s use of peremptories were supportable without regard to race. The Washington Supreme Court considered “would view” as a higher, more difficult standard to prove, analogous to the federal standard known as the “Batson test”. The Washington Supreme Court looked at whether the State prosecutor made challenges against other jurors who had made similar comments to the challenged jurors who were “persons of color”. For instance, the Latino male expressed concerns about the necessary proof in a swearing match case, desiring documentable evidence like DNA. However, this person indicated he would follow the instructions on the law. The State prosecutor did not question other potential jurors who had similar misgivings about trial evidence.

The Asian woman shared with the State that allegations about sexual assault are common in caregiver settings. Mr. Tesfasilasye worked as a driver for people with disabilities; the alleged victim was visually impaired, with balance problems sometimes requiring a wheelchair. The Supreme Court viewed this comment not only does not disclose bias, but open-mindedness. The State also had problems with the Asian woman’s comments concerning her son not being treated fairly by the criminal justice system when he was prosecuted as a juvenile. The State claimed this was a non-racially motivated reason to exercise a peremptory. The Supreme Court held this was a “presumptively invalid justification for a peremptory challenge,” specifically citing preclusion of such a reason by GR 37(h). The Defense actually cited GR 37(h) when objecting to the State’s peremptory.

There are seven presumptive reasons ”highly correlated with race and have been used to historically exclude people of color from jury service.” Id. at 358. “People of color communities are arrested, searched, and charged at significantly higher rates than white communities, and therefore are more likely to know someone who has a close relationship with someone who has had contact with the criminal legal system.” Id. at 358. The Washington Supreme Court held that neither State peremptory should have upheld, when objected to by the Defense.

Mr. Tesfasilasye’s conviction was reversed and his matter returned to the trial court. A real injustice is that Mr. Tesfasilasye could not get out of custody during the appeal, and had already been in custody for more than 12 months!

This writer submits that a juror peremptorily “removed” from a prospective panel who is a “person of color” will usually be challenged, often by the State unless the prospective juror makes clear statements that he or she is too biased to follow the law or hear the evidence fairly for either side.