King County Superior Court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s assault and murder trial in 2016, the Washington Supreme Court said Thursday as it sent the man’s conviction back to the lower court.
A jury convicted Tomas Berhe, then 31, of murder and assault in a 2013 shooting in Seattle’s Eastlake neighborhood.
But after Berhe’s trial, a juror came forward and said that racial bias among other jurors during deliberations had influenced her vote and the verdict, according to the state Supreme Court’s opinion published Thursday.
The Supreme Court’s decision, to which all nine justices agreed, sends the case back to a lower court for an investigation of the alleged racism. And in what could be a first-of-its-kind rule nationwide, the judges’ opinion also establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.
“They’re indicating it’s just as bad to have implicit bias as it is explicit bias. I think that’s pretty groundbreaking,” said Ann Murphy, a Gonzaga University evidence law professor. “The court itself has to do the oversight.”
Erika Evans, the immediate past president of the Loren Miller Bar Association (LMBA) which wrote an amicus brief in the case, said she was proud that Washington courts were at the forefront of addressing implicit bias. The LMBA is the largest organization of African American attorneys in the United States, according to its website.
In April, the state Supreme Court published 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.
“It safeguards African Americans and people of color behind closed doors when jury deliberations begin,” she said.
Berhe’s trial, if a juror’s allegations are true, provides a stark example of how implicit racial bias could affect a case’s outcome.
Berhe was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin, according to Seattle police. 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. According to court records, Judge Mariane Spearman, who retired in 2018, oversaw the trial.
In its opinion, the Supreme Court justices said it was unlikely anyone would admit to their own, unconscious bias. They also said “racial bias is a common and pervasive evil that causes systemic harm to the administration of justice” and also acknowledged that it is “uniquely difficult to identify.”
When racial bias is raised as a concern, the opinion directs trial courts to investigate those claims on the record. Trial judges should consider implicit bias and whether an objective observer “could view race as a factor in the verdict.” If so, the court must hold an evidentiary hearing and then make a decision, the opinion says.
Prosecutors and defense attorneys, the opinion says, can too easily “taint the jurors and impede the fact-finding process.”
Murphy, the professor, said she agreed with the Supreme Court opinion, but said ferreting out bias is a difficult task for trial judges.
“I think the problem will be trial judges aren’t trained in this,” she said. “Hopefully, it will result in training of how to identify implicit bias.”
King County Superior Court Judge Judy Ramseyer said allegations of racial bias among jurors don’t seem to come up often, and she has not seen it in her courtroom during or after trial. With its ruling, the Supreme Court is directing trial judges to “take charge” and seriously investigate allegations of racial bias, said Ramseyer, who is the president-elect of the Washington State Superior Court Judges Association.
She said trial judges are asked to make challenging credibility decisions regularly, so questions of bias would be “within our trade.” Still, “a view held implicitly is going to be difficult to draw out” from jurors.
It’s not yet clear what will happen with Berhe’s case. Nancy Collins, an attorney who handled his appeals, said a new trial might be necessary.
She doubted an evidentiary hearing, which the Supreme Court opinion requires, would be possible because jurors might be difficult to contact and they were not likely to recall details from a trial more than three years ago.
She said she was pleased with the Supreme Court’s opinion.
“We have to take this seriously,” Collins said. “If true, it undermines the verdict and public perception of the fairness of the criminal justice process.”
King County Senior Deputy Prosecutor Dennis McCurdy, who argued the county’s appeals but not the original case, said the Supreme Court’s decision was “well-reasoned” and “something we were looking for in the broader sense.”
He added: “You always want to get a conviction upheld, but this case had bigger implications.”
The defense had not proven that racial bias played an influential role in the jury’s decision, McCurdy said, but the trial court’s process once the issue was raised “was not a good process for uncovering what really happened, uncovering the truth.”