State v. Pierce is in large part about the death penalty. 

For that reason, you may think that today's case is irrelevant, because in 2018, the Washington Supreme Court struck down the state's death penalty law.

But State v. Pierce is also in large part about race, which makes the case entirely relevant today in Washington. 

This is because, in April 2018, the Washington Supreme Court became the first court in the United States to implement a court rule specifically designed to eliminate both implicit and intentional racial bias in jury selection.  General Rule (GR) 37 applies in both civil and criminal jury trials.

During the jury selection process, lawyers can excuse prospective jurors for cause (i.e. they can't be fair) or then can excuse jurors through a peremptory challenge (i.e. excusing jurors without giving a reason). 

Under GR 37, however, a lawyer may object to the use of a peremptory challenge based on race.  At this point, the trial judge hears from both attorneys and decides whether the lawyer has a valid non-racially motivated basis for excusing the juror. 

Under GR 37, the following reasons are presumptively invalid reasons for a peremptory challenge:

• Juror has had prior contact with law enforcement
• Juror has expressed distrust with law enforcement or believes that some officers racially profile
• Juror has a close relationship with someone who has been stopped, arrested, or convicted of a crime
• Juror lives in a high-crime area, receives state benefits, or has a child outside of marriage
• Juror's demeanor, inattentiveness, failure to make eye contact or “exhibited a problematic attitude” without corroboration by judge or attorneys

Juror 6

The State charged Pierce and his co-defendant with first degree felony murder as a result of a robbery gone bad.

At some point during the jury selection process, Juror 6 was the only African-American potential juror in the courtroom. 

During voir dire (i.e. jury selection process), Juror 6 made the following statements:

• Her brother was convicted of attempted murder and the whole process “left a bad taste in her mouth”
• She had “strong opinions” about “parts of the system” that “did not treat her brother fairly”
• She said she would not feel comfortable imposing the death penalty or a sentence of life in prison

At the time, under Washington law, the trial judge and the attorneys could not inform potential jurors about the possible sentences the defendant faced, including life imprisonment or the death penalty. 

The State moved to excuse Juror 6 for cause.  The trial judge denied the request.  Later, the State exercised a peremptory challenge against Juror 6, which the trial judge granted.  In addition to statements listed above, the State relies on the fact that Juror 6 on several occasions said she could not be fair. 

The Court's Ruling

In Pierce, the Washington Supreme Court (in fractured opinion) ruled that the prosecutor's peremptory challenge against Juror 6 violated GR 37 because the statements listed above are presumptively invalid reasons.  Therefore, an “objective observer” could conclude that race was a factor in the prosecutor's decision. 

The Court also held that “death-qualification” questions (i.e. determining whether a juror is willing to impose the death penalty) is inherently race-based, because studies show support for the death penalty is linked to race. 

The Court also ruled that in death penalty cases jurors should be told that the death penalty is a possible punishment, but of course this part of the ruling may never be relevant again in Washington. 

Analysis

How easy is it apply to GR 37?

The majority and dissenting Justices read the same trial transcript and couldn't agree on whether Juror 6 was properly kicked off the jury.  And they spent dozens of pages analyzing the issue.  Trial judges get far less time to decide this consequential issue. 

What's clear is that this won't be the last GR 37 case that reaches the high court … though it may be the last death penalty case that does. 

About us:  Zuanich Law specializes in criminal and civil appeals, including DOL and family law appeals.  We also handle post-conviction relief, including vacating, expunging, and sealing criminal records.  Subscribe to our criminal law email newsletter.