In State v. Tesfasilasye, the WA Supreme Court reversed a sex offense conviction under GR 37 because the prosecutor failed to give race-neutral reasons for striking two minority jurors.
A brief explanation of GR 37 is necessary. When the WA Supreme Court adopted GR 37 in 2018, it became the first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection. The rule expanded the prohibition against using race based peremptory challenges during jury selection. Not only was intentional race discrimination outlawed, but also challenges based on “implicit, institutional, and unconscious” race and ethnic biases were rejected.
FACTUAL BACKGROUND
The defendant Mr. Tesfasilasye is a Black Eritrean immigrant whose primary language is Tigrigna. Tesfasilasye worked for Solid Ground as a driver for people with disabilities. C.R.R. used Solid Ground’s services. The alleged victim, C.R.R. is visually impaired. She sometimes uses a wheelchair due to balance issues.
The day after Tesfasilasye drove C.R.R. home, C.R.R. reported that Mr. Tesfasilasye assaulted her the day before. The State charged Tesfasilasye with third degree rape. During voir dire, the State brought peremptory challenges against Juror #25, an Asian woman, and Juror #3, a Latino.
The State sought to use a peremptory strike against Juror #25, an Asian woman. Tesfasilasye raised a GR 37 objection. The State denied it was striking Juror #25 because she was an Asian woman. The State called the court’s attention to the fact it was not seeking to strike the other Asian woman in the panel. Instead, the State contended it wanted to strike Juror# 25. The trial court overruled the GR 37 objection and granted the peremptory challenge.
Next, the State sought a peremptory challenge against Juror #3, the Latino. The court granted the peremptory challenge. However, the trial judge’s oral ruling was not based on
whether a reasonable juror could view race as a factor as required by GR 37.
The jury found Tesfasilasye guilty of third degree rape. Tesfasilasye appealed. He alleged that an objective observer could have viewed race as a factor for striking Juror #25 and Juror #3 as prohibited by GR 37. The Court of Appeals affirmed Tesfasilasye’s conviction. The WA Supreme Court granted review.
COURT’S ANALYSIS & CONCLUSIONS
“Our constitutions require a fair and impartial jury,” wrote Justice Gonzalez. “The parties and the jurors themselves have the right to a trial process free from discrimination.” Next, Justice Gonzalez discussed the nefarious use of peremptory challenges to strike qualified jurors without providing a reason. “These challenges however have a history of being used based largely or entirely on racial stereotypes or generalizations,” he said.
Justice Gonzalez explained how GR 37 was an attempt to address the shortcomings of Batson v. Kentucky. Batson was a landmark case prohibiting the use of peremptory challenges to automatically exclude potential members of the jury because of their race. “The protections under Batson were not robust enough to effectively combat racial discrimination during jury selection,” said Justice Gonzalez. In short, Batson failed to require a trial judge to make rulings without considering systemic and unconscious racial bias.
Justice Gonzalez explained that under GR 37, a peremptory challenge shall be denied if an objective observer could view race or ethnicity as a factor in the use of a peremptory challenge. He described at great length why both Juror #25 and Juror #3 were wrongfully struck by the State and concluded as follows:
“We hold that under these facts, an objective observer could view race as a factor for striking both Juror #25 and Juror #3. Tesfasilasye asks this court to reverse his conviction. The State does not dispute that the remedy for a GR 37 violation is reversal. Accordingly, we reverse the Court of Appeals and remand for a new trial.” Chief Justice Steven Gonzalez, WA Supreme Court.
My opinion? Good decision. The State has another opportunity for trial. Next time, let’s hope they avoids striking jurors for race-based reasons.
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