Racial bias can infect the criminal justice system and, like a virus, eats away and damages the body. 

Racial bias in the jury room can be even more insidious because juror deliberations are usually secret. Juror secrecy is generally a good thing, because it permits jurors to deliberate freely without being subjected to outside pressure or influence. For this reason, juror misconduct based on race may be even harder to diagnose.

But what happens when lawyers and judges get that rare chance to look inside the jury room and see what looks like a possible infection?

What is Implicit Racial Bias?

Under the state and federal constitutions, a defendant has a right to an impartial jury. At a minimum, an impartial jury means an unbiased or unprejudiced jury. A racially biased jury—even one racially biased juror—violates a defendant's constitutional right under the Sixth Amendment and the Washington Constitution.  

Explicit racial bias is easy to spot, but you rarely see it, because it's “socially unacceptable to be overtly racist,” as the Washington Supreme Court put it. Implicit racial bias is harder to spot, because certain stereotypes and prejudices may operate at an unconscious level, deep within an individual.  

This definition is somewhat amorphous, but a well-known psychology study illustrates this concept more clearly. In this study, test subjects are shown a black or white face followed quickly by an object (either a harmless tool or a weapon). Subjects are told to ignore the faces and respond only to the objects, but subjects falsely claimed to see a gun more often when the face was black than when it was white.

The distressing story of Juror 6

In March 2016, a King County Superior Court jury convicted Tomas Berhe of murder. Later that month, however, one of the jurors (Juror 6) said she didn't agree with the verdict and was a victim of racial bias during jury deliberations. She filed a written declaration with the trial court detailing her experiences on the jury.

Juror 6 was the only black member of Berhe's 12-person jury. She said she was the “last hold-out” for a conviction. Initially, 3 other jurors were on the fence, but Juror 6 alleged that she “was the only one accused of being partial and close-minded because of my views … because I was only the African-American on the juror on the panel in a trial with an African-American defendant.” She said she was “personally ridiculed in a way the other dissenting jurors were not.”

She also said she was mocked for being “stupid” and “illogical” when she brought up evidence showing that Berhe might be innocent. And other jurors also mocked her for making a “comment on police misconduct towards African-Americans.” Ultimately, she only voted to convict because she felt “emotionally and mentally exhausted from the person and implicit race-based derision from other jurors.”

Berhe Files a Motion for a New Trial

Based on Juror 6's declaration, Berhe filed a motion for a new trial and requested an evidentiary hearing on the issue of alleged jury misconduct.

The State opposed the motion, and filed its own declarations that prosecutors had obtained from other jurors after reviewing Berhe's motion. All of these jurors denied observing or doing anything to Juror 6 that was motivated by racial bias.

But some of the jurors' comments were troubling. Juror 11 said that “during deliberations I appreciated some of the insights that juror #6 had, specifically around the norm in hop-hop culture of baggy pants without a belt.” Juror 11 wrote about being “uncomfortable by the frustration” that some of the other jurors expressed toward Juror 6. And Juror 13 said that another juror had accused Juror 6 of being biased “based on her history of the law,” because her nephew apparently received what Juror 6 thought was too harsh a sentence after being convicted of breaking and entering.

The Trial Judge Denies the Motion

The trial judge denied Berhe's motion for new trial. She ruled that the only evidence of racial bias come directly from Juror 6's own declaration and that declarations from the other jurors “refuted” many of Juror 6's claims. For these reasons, the judge also denied Berhe's request for an evidentiary hearing.

The Washington Supreme Court orders further investigation 

The Washington Supreme Court reversed the trial court. The Court's opinion in State v. Berhe is lengthy—appropriately so given the topic. Here are the key rulings:

1. A court must conduct a “thorough inquiry” before deciding whether there is a prima facie showing of racial bias

A prima facie showing means that the “evidence, if true, permits an inference that an objective observer … could view race as a factor in the jury's verdict.” If the evidence is unclear or unequivocal—by definition, almost always in cases of implicit racial bias—the court must conduct a further inquiry. This may include directly questioning a juror in open court about the allegations to provide more information or clarify ambiguous statements.

In this case, based on the declarations, the Court held that the “evidence in the record is at least sufficient to require further inquiry.”

2. If there is prima facie evidence of racial bias, the court must hold an evidentiary hearing before ruling on a motion for a new trial

This the trial judge will need to do if finds prima facie evidence of bias based on further investigation.

Does that mean racial bias did influence the jury's verdict? Not necessarily.

And does that mean that the trial judge should grant D's motion for a new trial and reverse his conviction? Not necessarily.

But the trial judge has more work to do before answering these questions.

3. The trial court (not the lawyers) needs to control the investigation

Once it learned of Juror 6's allegations of racial bias, the trial judge should not have let the prosecutor reach out to other jurors. Instead, the court should have conducted a hearing on the record. That is because the prosecutors gathered declarations from other jurors only after learning about juror 6 allegations, which made it more likely that the other jurors would deny any allegations of racial bias.

For these reasons, the Court held that the trial court abused its discretion by failing to control the investigation into racial bias in this case and by failing to sufficiently investigate the allegations. The Court reversed the order denying Berhe's motion for a new trial and ordered the trial judge to conduct further inquiry.