Combating Bias in the Justice System
Courts in Washington State have long been at the forefront of combating bias. Washington State courts were the first in the nation to prohibit “implicit, institutional, and unconscious” bias in jury selection, and the U.S. District Court for the Western District of Washington was the first court in the nation to address implicit bias of jurors head-on by producing a video and drafting jury instructions to highlight and combat unconscious bias. Recently, the Washington Supreme Court took another large stride toward remedying juror bias in its decision in Henderson v. Thompson.
In that case, a defense attorney made arguments to the jury which the Supreme Court likened to racism dog whistles. The underlying case arose out of a car collision. In that collision, the defendant (a white woman) admitted fault for the collision. The plaintiff (a Black woman) alleged that she had significant injuries from the crash. There were no Black jurors, and the defense argument insinuated that the testimony of the only Black individuals in the courtroom (the Plaintiff and her witnesses) was orchestrated “almost like someone had told them to say that.” The insinuation was that they couldn’t be trusted. When the jury returned an unjustly small verdict, the plaintiff asked the trial court to order a new trial on the grounds that the defense argument had influenced the jury’s unconscious bias against plaintiff. The trial court flatly declined.
He her majority opinion, Justice Montoya-Lewis noted that the courts “owe a duty to increase access to justice, reduce and eradicate racism and prejudice, and continue to develop our legal system into one that serves the ends of justice.” Because jury verdicts affected by bias violate “fundamental concepts of fairness and equal justice under law,” the Court ruled that trial courts must hold evidentiary hearings to explore allegations of bias whenever the court is presented with evidence that an “objective observer” could conclude bias played any factor in a jury arriving at a verdict. The Court further ruled that trial courts must “focus on the effect of racially biased comments or actions, not the intent of the action, when evaluating whether a verdict has been affected by racism.”
While there is clearly a long way yet to go, this decision, like so many before it, is a giant leap toward eradicating bias in our justice system.