A sharply divided Washington Supreme Court has ordered a new trial for two men convicted in a 2012 Seattle homicide, finding that the prosecutor was improperly allowed to remove the only Black person from the prospective jury panel.
The 5-4 majority, joining an opinion authored by Justice Steven Gonzalez published Thursday, sent the prosecution of Karl Pierce and Michael Bienhoff back to King County Superior Court, finding race-based fatal flaws in jury selection.
Pierce and Bienhoff were convicted in 2015 of the shooting death of 31-year-old Precious Reed, a father of four, during a drug rip-off on Feb. 20, 2012 in Woodland Park. Bienhoff was sentenced to life without possibility of parole for being a persistent offender. Pierce received a 45-year prison sentence. Prosecutors had not asked for the death penalty in the case.
“An objective observer could conclude that race was a factor in the state’s … challenge” that removed the juror from the panel, the majority justices concluded.
In sending the case back to the lower court, the majority also took the opportunity to abandon a 19-year precedent that has prohibited courts from telling prospective jurors whether a case they might have to decide carries a death penalty. The state’s prosecutors had asked for the justices to strike down the prohibition, arguing that it was no longer relevant — the death penalty in Washington was struck down last year — and was actually preventing the courts from empaneling more diverse juries.
The King County Prosecuting Attorney’s Office said in a statement that it intended to retry Bienhoff and Pierce.
“We appreciate that the court has now changed the law, and will allow potential jurors to be informed that the death penalty is not at issue in a case,” the office said in a statement. “This change will avoid the problems that the trial court and the parties struggled with during this jury selection.”
The minority justices would have reinstated the convictions and argued it was wrong for the majority to use the case to ditch a precedent that has been made moot by the court’s decision last year finding the state’s death penalty unconstitutional.
The majority justices agreed that the rule — which stemmed from a 2001 case called State vs Townsend — was “harmful because of the unnecessary pressure it puts on potential jurors” by leaving them in the dark in cases where the death penalty isn’t applicable. Some prospective jurors are disqualified over their qualms about capital punishment, which given the current state of Washington law isn’t an issue. As a result, “many more jurors must be summoned in homicide cases than would otherwise be necessary to get a fair jury,” Gonzalez wrote.
The justices pointed to evidence showing when courts exclude jurors who oppose the death penalty, they “disproportionately exclude people of color.”
“Hewing to a rule that has a disproportional effect of eliminating people of color undermines our commitment to fostering juries that reflect our society,” Gonzalez wrote. He wrote that the rule has been causing “ongoing harm” by complicating jury selection, and needed to be struck down.
The Supreme Court’s decision to order a new trial upheld an earlier Washington State Court of Appeals decision, but for different reasons.
The Court of Appeals had recommended a new trial because the prosecutor “committed misconduct by eliciting a conversation about the death penalty in a noncapital case and that the trial court abused its discretion in not curtailing the conversation,” the opinion said. The majority justices addressed the issue by throwing out the precedent that prohibited those conversations in the first place.
However, the majority — including opinion author Gonzalez and justices Mary Yu and Charles Wiggins — focused more on the impact of the decision by Senior Deputy King County Prosecutor Wyman Yip to use a so-called “peremptory challenge” to remove the only Black person from the jury. That woman had expressed deep ambivalence about whether she could serve as a juror at all, but she said that she, for certain, would not be able to decide a case where the death penalty would be in play, according to the Supreme Court opinion.
She was the only Black person on a panel of 138 prospective jurors. The majority found that under the circumstances, “an objective observer could conclude that race was a factor ” in the prosecutor’s decision, in violation of court rules. Chief Justice Debra Stephens, in a concurring opinion joined by Justice Sheryl McCloud, agreed with that conclusion, but would have found fatal error in the discussion of the death penalty during jury selection as well.
Stephens said the judge should have granted a defense motion for a mistrial made at the time. “Things simply went awry,” the chief justice wrote. “It was incumbent on the trial court to recognize the problem and its impact on fairly selecting a jury.“
Since Townsend was decided in 2001, judges and attorneys have been prohibited from talking to prospective jurors about the possible sentences faced by the defendant in the case.