Category Archives: Race & Law

Ending Money Bond

VICTORY: Illinois Just Passed the Pretrial Fairness Act and Ended Money Bail  – Chicago Council of Lawyers

Illinois is poised to become the first state in the country to end the use of wealth-based pre-trial detention. The change has been a long time in the making – so long that one of the first organizers working to change the Illinois bail system six years ago got elected to the state senate and became a co-sponsor of the Pre-trial Fairness Act.

In courtrooms across the US, pre-trial release payments, called bond or bail, create dual systems of justice – one for the wealthy who can pay their way out of pre-trial incarceration and another for those who can’t afford it. Studies have also shown that hundreds of thousands of Americans like Mayes end up pleading guilty or receiving harsher sentences because of unaffordable bonds, whether or not they are guilty.

My opinion? Let’s see what happens. Numerous studies have shown that bail does little to achieve its intended purpose of ensuring court attendance – people released on their own recognizance were just as likely to come back to court for their trials as people who posted money bond and no more likely to reoffend awaiting trial.

Wealth-based detention is at its core, a racial justice issue. Across the country, Black, Latino and indigenous people are detained pre-trial at far higher rates than people of other ethnicities. If given a money bail, Black people receive significantly higher bail than all other ethnic and racial groups and are less likely to be able to post the bail amount. Bail is usually set by judges in less than a minute and people with almost identical charges are often assigned bails that differ by tens of thousands of dollars.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Consequences of Arrest Leads to Different Outcomes for Black, White Youth

The criminal justice system is riddled with racial disparities | Prison  Policy Initiative

For black youth, the Consequences of Arrest by eighth grade predicts they will be arrested by young adulthood – but the same is not true for white youth, a new University of Washington study finds.

The study, titled, The Usual, Racialized, Suspects: The Consequences of Police Contacts with Black and White Youth on Adult Arrest, finds that Black young adults are 11 times more likely to be arrested by age 20 if they had an initial encounter with law enforcement in their early teens than Black youth who don’t have that first contact.

In contrast, white young adults with early police contact are not significantly more likely to be arrested later, compared with white peers without that history.

The study also found that Black youth are more likely than white youth to be treated as “usual suspects” after a first encounter with police, leading to subsequent arrests over time. Even as white young adults report engaging in significantly more illegal behavior, Black young adults face more criminal penalties, the study finds.

Researchers also said it’s not just the number of stops, but what transpires during a police stop that sets the tone for future interactions with police.

“What we know about police contacts and youth generally is that Black youth are more likely to be stopped by police to begin with, and are more likely to have a negative experience when that happens,” said first author Annie McGlynn-Wright, a postdoctoral fellow at Tulane University who led the study while pursuing her doctorate at the UW. “What we haven’t known previously is the long-term effects of police contacts in terms of criminal justice outcomes.”

Racial differences in who is stopped, why and for what penalty have been well documented, the researchers said. Also, police stops have been linked to individuals’ later run-ins with law enforcement.

While the data was collected in Seattle, researchers say the patterns they found are likely occurring in cities around the country — Seattle is “more like every other town” than some larger metro areas like Chicago and Philadelphia, where many criminal justice studies are located, noted co-author Robert Crutchfield, a professor emeritus of sociology at the UW.

“When police interact with communities, and young people in communities, they have to be especially mindful of the nature and substance of the encounters, and police really need training to avoid negative interactions. What we found is that contact matters. In this study, we couldn’t parse out the nature of the interactions, but I suspect most kids experienced the interaction in a negative way. The message is, cops need to do better to minimize unnecessary contacts, and when they do contact people, to treat them better.” ~Robert Crutchfield, UW Professor Emeritus of Sociology.

For this study, UW researchers wanted to examine the effects of the first stop on the lives of Black and white adolescents, and whether a stop in the early teen years is associated with “secondary sanctioning,” or a “usual suspects” treatment by police that plays out over future stops and/or arrests. The study is among the first to explore the racial differences in police contact over time.

It also comes during a period of significant reckoning over race and policing in the United States, after a series of law enforcement killings of Black people around the country. As communities grapple with how to address institutionalized racism, police procedures and accountability, many school districts, including Seattle, have ended their contracts with law enforcement agencies for school resource officers, the personnel who are assigned to specific school buildings. Research has shown that students of color are disproportionately subject to discipline and monitoring by school resource officers.

Please contact my office if you, a friend or family member are charged and arrested and race might play a factor in the charges. Hiring an experienced criminal defense attorney is the first and best step toward justice.

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Study Finds Police Misconduct Leads to Wrongful Convictions

Advocacy group speaks out against wrongful convictions

A recent study finds police misconduct leads to wrongful convictions. The misconducts included witness tampering, violent interrogations and falsifying evidence.

Titled, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, researchers from the National Registry of Exonerations studied 2,400 convictions of defendants who were later found innocent over a 30-year period and found that 35% of these cases involved some type of misconduct by police. More than half – 54% – involved misconduct by police or prosecutors.

The study comes as protests over racial injustice and police brutality spread across many cities for several months following the May 25 death of George Floyd in police custody.

Researchers found that misconduct by police and prosecutors is among the leading causes of disproportionate false conviction of Black defendants. For example, 78% of Black defendants who were wrongly accused of murder were convicted because of some type of misconduct. That number is 64% for white defendants, according to the study. An even wider gap: 87% of Black defendants later found innocent who were sentenced to death were victims of official misconduct vs. 68% for white defendants.

The study found that hiding evidence that is favorable to defendants is the most common type of misconduct.

Researchers cite five murder trials in which prosecutors concealed evidence about the cause of death. In one case, a woman was convicted of killing her boyfriend, but prosecutors did not disclose a medical report that found he had died of suicide.

“In a few rape exonerations, the authorities concealed evidence that the complainants had a history of making false rape allegations . . . And in at least a dozen child sex abuse cases, police, prosecutors and child welfare workers concealed statements by the supposed victims that they had not in fact been molested.” ~National Registry of Exonerations

In some cases – according to the study – police officers falsely claimed they were victims of assaults by defendants. In one such case, police officers from Chattanooga, Tennessee, beat a defendant at a reentry facility because he defended himself. Adam Tatum was sentenced to two years in prison for assaulting officers but was later exonerated after video showed that officers attacked him without provocation. Tatum sued and later settled for $125,000.

Also, police officers were disciplined or convicted of crimes in only 19% of exonerations that involved some type of misconduct, according to the study. That’s a rate five times higher than those for prosecutors, whose misconduct account for 30% of the cases.

Please contact my office if you, a friend or family member are charged with a crime and evidence appears to have been withheld. Hiring an experienced and effective criminal defense attorney is the best step toward justice. Experienced attorneys regularly file and argue Motions to Compel and/or a Brady Motions; both of which force the Prosecutor to give exculpatory evidence and release discovery that they otherwise wouldn’t.

Police Reform Legislation

House Democrats to propose reforms targeting police misconduct ...

Great article by Jacob Pramuk of CNBC reports that House Democrats unveiled a bill to overhaul police practices as Americans mass daily to protest excessive use of force and systemic racism.

Lawmakers in the House and Senate released the legislation two weeks after the death of George Floyd, the black, unarmed man who died after a Minneapolis police officer knelt on his neck for nearly nine minutes. The killing sparked nationwide furor over sustained brutality against black Americans. His death added to a string of recent killings of black men and women that has led to perhaps the biggest reckoning over racism in the U.S. in decades.

Before introducing the bill, Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, Congressional Black Caucus Chair Karen Bass (D-Calif.), Sens. Cory Booker (D-N.J.) and Kamala Harris (D-Calif.) and other top Democrats will first gather in the Capitol in silence for 8 minutes and 46 seconds, the amount of time an officer knelt of Floyd’s neck.

U.S. House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) and House Majority Leader Steny Hoyer (D-MD) kneel with Congressional Democrats during a moment of silence to honor George Floyd, Breonna Taylor, Ahmaud Arbery and othe

The Democratic legislation would make sweeping changes designed both to deter police use of force and hold officers more accountable for abuses. The federal bill comes as changes start at the local level: most of the Minneapolis city council committed to disbanding and replacing the city’s police force Sunday, while New York City will consider a range of law enforcement reforms.

The bill “establishes a bold, transformative vision of policing in America,” said Congressional Black Caucus Chair Rep. Karen Bass, D-Calif. She said Americans should not have to witness “the slow murder of an individual by a uniformed police officer.” Bass added that the bill has more than 200 co-sponsors in both chambers of Congress.

Here’s some of what congressional Democrats’ bill would do, according to summaries obtained by NBC News and the Associated Press:

  • Reform “qualified immunity” for officers, making it easier for people whose constitutional rights were violated to recover damages
  • Change the federal standard of criminal police behavior from “willful” to acting “knowingly or with reckless disregard,” to address the difficulty of prosecuting officers
  • Start a federal registry of police misconduct and require states to report use of force to the U.S. Justice Department
  • Ban police use of chokeholds and carotid holds, and condition funding for state and local departments on barring the practices
  • Stop the use of “no-knock” search warrants in drug cases in the U.S., while also making state and local money contingent on stopping use of the warrants
  • Give the Justice Department subpoena power to carry out “pattern and practice” investigations into police department conduct
  • Provide state attorneys general with grants to carry out pattern and practice probes and create a process for independent investigations into uses of force
  • Require training on racial bias and implicit bias at the federal level, and condition state and local funding on offering training
  • Curb transfers of military-grade weapons to state and local police
  • Classify lynching as a federal hate crime

According to NBC News, the legislation offers money for only two components: the requirement to track and report use of force and the investigations by state attorneys general, according to NBC News.  The Democratic plan did not meet many activists’ demands to slash — or entirely cut — police funding.

Senate Minority Leader Chuck Schumer said that “in the Senate, Democrats are going to fight like hell” to pass the legislation. He called on Senate Majority Leader Mitch McConnell to bring the bill to the Senate floor and hold a debate on it “before July.”

A White House spokesman did not immediately comment on whether President Donald Trump would back the legislation. On Monday, House Speaker Nancy Pelosi said “the president must not stand in the way of justice.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Guilty Verdicts Must Be Unanimous

In Louisiana, you can be convicted of a serious crime by a 10-2 ...

In Ramos v. Louisiana, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that guilty verdicts must be unanimous.

BACKGROUND FACTS

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts.

In this case, the defendant Mr. Ramos was convicted of second degree murder in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court, which reversed Ramos’s conviction on the basis that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.

First, the Court reasoned that a “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.

“Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified . . . Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.” ~Justice Gorsuch, United States Supreme Court

Second, the Court reasoned Louisiana’s and Oregon’s unconventional jury trial schemes had a long history of being viewed as unconstitutional. It stated that jury unanimity was essential to the right to a fair trial guaranteed by the Sixth Amendment. Furthermore, research has demonstrated that a unanimous jury requirement strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.

Finally, the Supreme Court overturned its deeply divided decision in Apodaca v. Oregon, which concluded that jury unanimity was required in federal criminal trials but not in state criminal trials. In short, the Court reasoned that modern empirical evidence and subsequent case law have undermined Apodaca’s reasoning and conclusions.

My opinion? The Court’s decision was a major victory for protecting the rights of criminal defendants. The Court recognized that jury unanimity has historically been an essential element of the Sixth Amendment right to an impartial trial by jury in criminal cases. Also, the potential impact of Ramos v. Louisiana extends far beyond issues of criminal procedure, as the justices’ spirited debate over when and whether to overturn precedent took center stage and illustrated deep divisions within the Court.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced and competent criminal defense attorney is the best step toward justice.

Reconsider Long Prison Sentences?

Image result for old man in prison

Excellent article in Inside Sources by director of Strategic Initiatives at The Sentencing Project argues our society must reconsider long prison sentences.

Gotsch writes that a measure of rationality has come to federal sentencing after President Trump signed the First Step Act. The legislation has led to almost 1,700 people receiving sentence reductions, most of whom have been freed. Ninety-one percent are African American. Douglas and dozens of others sentenced to die in prison are among the beneficiaries.

The U.S. Sentencing Commission reports that the resentencing provisions of the First Step Act reduced the average sentence of 20 years by an average of six years for those who qualified.

“The reductions, while modest, are profound for the people and families ensnared by long prison terms, and who have been generally left out of criminal justice reforms until now,” writes Gotsch.

“Congress should take its next step to address a broader cohort of incarcerated people with lengthy sentences.”

Gotsch’s arguments hinge on the fact that lengthy prison sentences seem inappropriate for prison populations that essentially “age out” of crime. Half of the people in federal prisons are serving sentences longer than 10 years. Almost 20 percent of the population is more than 50 years old.

“Criminal justice research has long confirmed that people generally age out of crime, so long sentences provide diminishing returns for public safety,” says Gotsch. “Tax dollars that could be used to invest in youth, improve schools, expand drug treatment and medical and mental health care, are instead invested in prisons to incarcerate a growing elder population despite their limited likelihood of recidivism. Policy should reflect the research.”

The Second Look Act, newly introduced sentencing reform legislation from Senator Cory Booker and Representative Karen Bass, follows the lead of experts on crime and punishment and offers a transformational approach. The bill seeks to curb long sentences by offering a sentencing review by a federal judge to people with sentences longer than 10 years. Individuals who have served at least 10 years must show they are rehabilitated and are not a threat to public safety to qualify for a sentence reduction. People who are 50 or older would have a presumption of release because of their substantially lower recidivism rates.

“For the bipartisan lawmakers in Washington, and the 2020 presidential candidates who have pledged to address the problems in the criminal justice system, a broader approach to challenge mass incarceration and promote public safety is long overdue,” says Gotsch.

Please contact my office if you, a friend or family member face criminal charges which could include a prison sentence. It’s very important to hire an experienced, competent competent attorney who can either prepare a strong case for jury trial or navigate a plea deal which avoids prison.

Are Long Prison Sentences Necessary?

Image result for free from prison

“For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer. We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence.”

Moreover, the authors argue that legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

LONG PRISON SENTENCES DO NOT REDUCE CRIME.

“We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety,” said the authors. “But sending people to prison for long periods does not reduce crime.”

In fact, longer sentences, if anything, create crimeDavid Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Additionally, the authors say that not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities. As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.” While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering. For example, U.S. prisons spend $16 billion per year on elder care alone. Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, the authors say, we need to pursue every option that would safely reduce our prison population. One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison. Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old. Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

And numerous studies have shown that decreasing sentences does not increase crime. A recent Brennan Center for Justice report documented 34 states that reduced both their prison population and their crime rates, the Sentencing Project concluded that unduly long prison terms are counterproductive for public safety, and the Justice Policy Institute found little to no correlation between time spent in prison and recidivism rates.

My opinion? Some crimes need punishment. However, we have forgotten that our justice system is supposed to rehabilitate people, not just punish them. Our policies should reflect the ability of people to change over the course of years—or decades—of incarceration.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Federal Government Seeks Death Penalty

The Trump Administration Announced It's Bringing Back the Federal Death  Penalty. Is It That Simple? – Mother Jones

Reporter of the New York Times wrote a compelling article stating the federal government seeks the death penalty of death row inmates after a nearly two-decade hiatus, countering a broad national shift away from the death penalty as public support for capital punishment has dwindled.

Attorney General William P. Barr announced that five men convicted of murdering children will be executed in December and January at the federal penitentiary in Terre Haute, Indiana, and additional executions will be scheduled later. The announcement reversed what had been essentially a moratorium on the federal death penalty since 2003.

Prosecutors still seek the death penalty in some federal cases, including for Dylann S. Roof, the avowed white supremacist who gunned down nine African-American churchgoers in 2015, and Dzhokhar Tsarnaev, the Boston Marathon bomber. Both were convicted and sentenced to death.

President Trump has long supported the death penalty, declaring last year that drug dealers should be executed. By applying it to inmates convicted of murdering children, he may make a more politically powerful argument for it amid diminishing public support.

But public attitudes toward the death penalty have changed in the ensuing decades. Support for it went from nearly 80 percent in 1996 to a two-decade low three years ago, when just under half of Americans polled backed it for people convicted of murder, according to the Pew Research Center. Public backing of capital punishment ticked back up to 54 percent last year, the center found.

Capital punishment fell out of favor as researchers questioned whether it deterred people from committing heinous crimes and as more defense lawyers proved that their clients had been wrongfully convicted. Fewer than two dozen executions have occurred annually in the United States in recent years, down from a high of 98 in 1999, according to the Death Penalty Information Center.

Civil rights advocates have also noted the racial disparity among inmates on death row and argued that capital punishment was disproportionately applied to black men.

“The death penalty is plagued by racial bias and geographic bias,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “Junk science has played an outsized role in who gets the death penalty and who does not,” she added, pointing to instances of experts overstating hair or fingerprint evidence in court testimony.

Please contact my office if you, a friend or family member are charged with a capital crime like murder or homicide and the Death Penalty is a possible consequence. Hiring an effective and competent defense attorney is the first and best step toward justice.

Overcoming Implicit Bias

Image result for implicit bias

In State v. Berhe, the WA Supreme Court held that a trial court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s first degree murder and first degree assault trial in 2016.

FACTUAL BACKGROUND

In 2016, a King County jury convicted Tomas Berhe, then 31, of murder and assault in a shooting in Seattle’s Eastlake neighborhood. Mr. Behre is African-American. He was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin. A second man who was in the Eastlake alley with Williams was also shot.

After the trial concluded with a guilty verdict in early 2016, the sixth juror contacted both defense attorneys and the court with concern, according to the opinion. Weeks later, Berhe asked the judge for a new trial and requested an evidentiary hearing to investigate the allegations of racial bias, among other concerns.

In a written declaration presented by the defense, the sixth juror said she was the only African American on the jury in the trial of an African American defendant and described being the last holdout among four jurors who had initially leaned against conviction.

By the trial’s end, the sixth juror said she only agreed to vote for a guilty verdict because she felt “emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors,” the opinion quotes the declaration as saying.

The juror said others had mocked her as stupid and illogical when she suggested that Berhe could have taken the murder weapon from someone else. She described two jurors as taunting her, saying that she would “let him walk,” and said she felt mocked after several jurors interpreted something she’d said as commentary on police misconduct toward African Americans.

Responding to the defense’s declaration, prosecutors sent questions to several jurors asking if they themselves, or another juror, had done anything to the sixth juror that was motivated by racial bias during deliberations. Results were not conclusive, and the Superior Court judge found insufficient evidence of juror misconduct and denied a request for a new trial.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Supreme Court described how racial bias harms trial verdicts:

“Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify.”

Second, the Court reasoned that Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict.

“Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record,” said the Court. “Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified.”

Third, the Court reasoned that the unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed. “Implicit racial bias is a unique problem that requires tailored solutions,” said the Court. “Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant’s motion for a new trial,” said the Court.

The Court concluded that the trial court abused its discretion by failing to exercise adequate oversight over the investigations into juror 6’s allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe’s motion for a new trial without an evidentiaiy hearing. “We therefore vacate the trial court’s order denying Berhe’s motion for a new trial and remand for further proceedings.”

My opinion? Excellent decision. Groundbreaking, even. In what could be a first-of-its-kind rule nationwide, the judges’ opinion establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.

This isn’t the first time our Supreme Court has openly exercised judicial activism. In April, the state Supreme Court published General Rule 37, a rule for courts saying that challenges during jury selection based on implicit, institutional and unconscious race and ethnic biases should be rejected, she noted. Now, similar protection from bias extends into the jury room.

Excellent decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.