The State of Washington, Respondent, v. Kirk Ricardo Saintcalle, Petitioner, 178 Wash. 2d 34

Wiggins, J. ¶1 This appeal raises important questions about race discrimination in our criminal justice system. Kirk Saintcalle, a black man, challenges his conviction for first degree felony murder because the State used a peremptory challenge to strike the only black venireperson in his jury pool. Saintcalle claims the peremptory strike was clearly racially motivated in violation of the equal protection guaranty enshrined in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We disagree.

Batson requires a finding of purposeful discrimination, and the trial court’s finding that there was no purposeful discrimination here is not clearly erroneous. Accordingly, we affirm Saintcalle’s conviction. ¶2 However, we also take this opportunity to examine whether our Batson procedures are robust enough to effectively combat race discrimination in the selection of juries. We conclude that they are not. Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant injury selection.

In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination. ¶3 But we will not create a new standard in this case because the issue has not been raised, briefed, or argued, and indeed, the parties are not seeking to advance a new standard. Applying Batson, we affirm the Court of Appeals.

FACTS ¶4 Kirk Saintcalle was convicted of one count of first degree felony murder and three counts of second degree assault, all with firearm enhancements. Saintcalle was accused of entering an apartment in the city of Auburn with two companions, holding three people at gunpoint, and shooting and killing Anthony Johnson. Saintcalle was sentenced to 579 months in prison. ¶5 During jury selection at Saintcalle’s trial, the prosecution used a peremptory challenge to strike the only black juror in the venire, juror 34, Anna Tolson.

This challenge came after the prosecution questioned juror 34 extensively during voir dire — far more extensively than any other juror. Indeed, most of the prosecution’s interactions with jurors were quite brief, usually consisting of only a few short questions, but not the interaction with juror 34. The State began questioning juror 34 after another juror made a comment about race: [JUROR. 72]: I feel there are some areas of unfairness in our system.

I am aware, for example, that a jury of their peers [sic], yet as you look around this panel, all of the faces are white. [JUROR 34]: No, not quite. (Laughter.) [PROSECUTOR]: You know what, you kind of bring a very important topic to light. If you were seated here in this chair and you looked out at this panel, would you have any concern about whether or not people are going to be able to relate to you or listen to you or feel for you? Juror number — What is your number? Juror number 34, I am going to ask you a little bit about your background.

You work at the YMCA? [JUROR 34]: I work in a middle school. [PROSECUTOR]: So tell me how that works. So you are a counselor? [JUROR 34]: Yes. [PROSECUTOR]: Which means you see a whole lot. [JUROR 34]: Yes. [PROSECUTOR]: And where do you work? What school do you work in? [JUROR 34]: Do I really need to say that? [PROSECUTOR]: How about you just tell me the city.

Is it an inner city school? [JUROR 34]: Yes. [PROSECUTOR]: You see a whole lot? [JUROR 34]: Yes. [PROSECUTOR]: I am interested to hear from you — I mean, do you have impressions about the criminal justice system? [JUROR 34]: Yes. [PROSECUTOR]: You are not going to hurt my feelings if you talk about them a little bit. What are your thoughts? [JUROR 34]: Gosh, I feel like I am on the spot here. But being a person of color, I have a lot of thoughts about the criminal system.

I see — I have seen firsthand — and a couple people have already mentioned that if you have money, you tend to seem to work the system and get over. And regardless if you are innocent or guilty, if you want to be innocent, your money says you are innocent. And a person of color, even if you do have an affluent lawyer who has the background, the finance to get you off, because you are a person of color, a lot of times you are not going to get that same kind of opportunities. And especially with this person being a person of color and being a male, I am concerned about, you know, the different stereotypes.

Even if we haven’t heard anything about this case, we watch the news every night. We see how people of color, especially young men, are portrayed in the news. We never hardly ever see anyone of color doing something positive, doing something good in their community. So kind of like what the person behind me is saying, since most of the people in this room are white, I am wondering what’s running through their mind as they see this young man sitting up here. [PROSECUTOR]: Right.

How about for you, do you think — I mean, you’ve got a whole lot that you are feeling as you sit here and that you are going to be asked to sit in judgment of somebody. How do you think you are going to be able to handle that? [JUROR 34]: I think number one, because I am a Christian, I know I can listen to the facts and, you know, follow the judge’s instruction. But also it’s kind of hard, and I haven’t mentioned this before because none of those questions have come up for me to answer, but I lost a friend two weeks ago to a murder, so it’s kind of difficult sitting here.

Even though I don’t know the facts of this particular case, and I would like to think that I can be fair because I am a Christian, I did lose someone two weeks ago. [PROSECUTOR]: Was that in Seattle? [JUROR 34]: Yes. [PROSECUTOR]: Was that [the] Tyrone case? [JUROR 34]: Yes. Report of Proceedings (RP) (Mar. 9, 2009) at 65-68. After a stretch break, the prosecutor resumed questioning juror 34: [PROSECUTOR]: Juror number 34,1 am going to move on to the group, but I wanted to close the loop with you.

You have a lot that is going through your mind currently both that would give you a lot of empathy for someone who is charged with a crime and also empathy for someone who may be a victim of a crime. In that way, you may be representative of the perfect juror. At the same time, we don’t put people in a position where it’s going to cause them a lot of emotional pain.

At this point do you think you could sit in this case and listen to the facts and make a decision based solely on the evidence presented in trial here and be fair to both sides? [JUROR 34]: I’d like to think that I could be, but kind of what you just mentioned just with the freshness and the rawness of the death of a Mend, I am wondering if that would kind of go through my mind. I like to think that I am fair and can listen, be impartial, but I don’t know. I have never been on a murder trial and have just lost a Mend two weeks prior to a murder. [PROSECUTOR]: What I am going to do, I am going to ask questions.

I am going to kind of move on to the rest of the group so that you have time to think, and then we’ll come back and ask you maybe tomorrow to make your final decision about whether or not you think you can be fair. I am sorry for your loss. Id. at 69-70. The next day, a different deputy prosecuting attorney followed up with juror 34: [PROSECUTOR]: Go back to [a] couple [of] people juror number 34 sorry [to] focus on you again after yesterday but I just want to try and go back [and] touch base with you.

I know[ ] you mentioned yesterday that you had some recent events in your life that may make it difficult for you to serve as jurors [sic] in [this case]. Have you done anymore thinking about that? How are you feeling today? [JUROR 34]: Yes. I thought about it last night as well as this morning. And, you know, my thought is I don’t want to be a part of this jury because of the situations, and the circumstances that I just went through.

But I’m thinking if ever I was put in a situation where I needed twelve people who could be honest and look through all the facts or I guess I’m saying who could be like me I would want me. So sometimes you have to do things that you don’t want to do. [PROSECUTOR]: I guess my only concern is do you feel like maybe some of the emotions that dredge up could cloud your judgment at all on either side.

Either you know against the defendant, against the State or I’m just concerned about that particular issue? [Court inquires whether juror 34 would like to answer the question in private, but juror 34 declines.] [PROSECUTOR]: So is that something you can set aside or worried at all about the emotions kind of clouding in? I mean, it’s just so new in terms of your life? [JUROR 34]: I mean, I have never been in this situation where I have lost someone. You just went to the funeral. He is young. Only 24. And to be called to jury duty to perhaps be on a jury of a murder suspect. I don’t know how I’m going to react.

You know, I don’t know. I’m — I’m not an emotional person, but I’m thinking as we go through it, and I hear the testimony, and I see the pictures, I don’t know. I mean, I’m just being honest. I don’t know how I’m going to feel. RP (Mar. 10, 2009) at 41-43. ¶6 After this exchange, the prosecution challenged juror 34 for cause. The judge denied the challenge, and the prosecution announced its intent to exercise a peremptory strike. At that point, Saintcalle raised a Batson challenge. ¶7 As required by Batson, the judge first found that Saintcalle had made a prima facie showing of purposeful discrimination.

Next, the prosecution presented race-neutral reasons for striking juror 34: the reasons were (1) juror 34’s “inattention” during voir dire and (2) the recent death of juror 34’s friend. Id. at 101-02. The prosecutor claimed to have spent “a lot of time watching juror 34” and asserted that juror 34 was “very checked out.” Id. at 101. ¶8 The judge denied the Batson challenge, stating on the record that he accepted the recent death of juror 34’s friend as a proper race-neutral reason for the strike.

Near the end of jury selection, the prosecution peremptorily struck juror 34, excusing her from the jury. ¶9 The prosecution also attempted to exercise a peremptory challenge against the sole Mexican-American juror in the venire, juror 10, but the judge sustained Saintcalle’s Batson challenge to that strike, rejecting each of the prosecutor’s proffered reasons as pretextual. Id. at 119-20. ¶10 After Saintcalle was convicted, he appealed, alleging that the peremptory strike of juror 34 (Ms. Tolson) violated the United States Constitution’s Fourteenth Amendment guaranty of equal protection.

The Court of Appeals rejected his argument, finding there was no purposeful discrimination and accepting the State’s race-neutral explanation. State v. Saintcalle, noted at 162 Wn. App. 1028, 2011 WL 2520000, 2011 Wash. App. LEXIS 1463. We granted review only on the Batson issue. State v. Saintcalle, 172 Wn.2d 1020, 268 P.3d 224 (2011). STANDARD OF REVIEW ¶11 We review Batson challenges for clear error, deferring to the trial court to the extent that its rulings are factual. State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008) (quoting State v.

Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991))). Clear error exists when the court is left with a definite and firm conviction that a mistake has been committed. E.g.,Ass’n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 196, 4 P.3d 115 (2000). ANALYSIS ¶12 Race discrimination in courtrooms “raises serious questions as to the fairness of the proceedings conducted there.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

Discrimination “mars the integrity of the judicial system and prevents the idea of a democratic government from becoming a reality.” Id. ¶13 It is crucial that we have meaningful and effective procedures for identifying racially motivated juror challenges because “[r] acial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try”; it also shamefully belittles minority jurors who report to serve their civic duty only to be turned away on account of their race. Batson, 476 U.S. at 87.

Perhaps most damaging, racial discrimination “undermine [s] public confidence in the fairness of our system of justice.” Id. at 87-88. Racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts, and permitting such exclusion in an official forum compounds the racial insult inherent in judging a citizen by the color of his or her skin. Edmonson, 500 U.S. at 628. ¶14 Batson sets forth a three-part analysis for determining whether a peremptory strike unconstitutionally discriminates based on race.

First, the person challenging the peremptory strike must “make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94. Second, “the burden shifts to the State to come forward with a [race]neutral explanation” for the challenge. Id. at 97. Third, “the trial court then [has] the duty to determine if the defendant has established purposeful discrimination.” Id. at 98.

If the trial court finds purposeful discrimination, the challenge should be granted and the peremptory strike disallowed. ¶15 As part of the “purposeful discrimination” analysis, the Supreme Court has established a comparative juror analysis. This entails examining whether the proffered race-neutral explanation could apply just as well to a nonminority juror who was allowed to serve. Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).

A corollary is that disparate questioning of minority jurors can provide evidence of discriminatory purpose because it creates an appearance that an attorney is “fishing” for a race-neutral reason to exercise a strike. Id. at 244-45; Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). We do not allow prosecutors to go fishing for race-neutral reasons and then hide behind the legitimate reasons they do find.

This disproportionately affects minorities. ¶16 Similarly, a proffer of pretextual reasons gives rise to an inference of race discrimination, and a court’s finding of discrimination against one juror is evidence of discrimination against other jurors. Snyder v. Louisiana, 552 U.S. 472, 485, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008). I. Batson in context ¶17 Since 1879, the United States Supreme Court has recognized that race discrimination in the selection of jurors violates the Fourteenth Amendment’s guaranty of equal protection. See Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 309-10, 25 L.

Ed. 664 (1879). But to contextualize Batson we must look to its origins. ¶18 Two decades before Batson, the United States Supreme Court held in Swain v. Alabama that purposeful discrimination in the use of peremptory challenges violates the equal protection clause. 380 U.S. 202, 223-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), overruled by Batson, 476 U.S. 79. Under Swain, a single act of racism was not sufficient to make out an equal protection claim; a person alleging race discrimination had to prove a long-running pattern of purposefully discriminatory acts.

Id. at 221-22. ¶19 Swain did little to curb racial discrimination, establishing a “crippling burden of proof” and leaving peremptory challenges “largely immune from constitutional scrutiny.” Batson, 476 U.S. at 92-93. Batson reexamined Swain in light of this reality, rejecting Swain’s “crippling burden” and establishing the now-familiar three-part test for scrutinizing peremptory challenges. Id. at 92-93, 97-98. ¶20 Twenty-six years later it is evident that Batson, like Swain before it, is failing us.

Miller-El, 545 U.S. at 270 (Breyer, J., concurring) (“[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before”). A growing body of evidence shows that Batson has done very little to make juries more diverse or prevent prosecutors from exercising race-based challenges.

Justice Breyer explains, concurring in Miller-El and citing a laundry list of sources concluding the same thing: Given the inevitably clumsy fit between any objectively measurable standard and the subjective decisionmaking at issue, I am not surprised to find studies and anecdotal reports suggesting that, despite Batson, the discriminatory use of peremptory challenges remains a problem. See, e. g., [David C.] Baldus, [George] Woodworth, [David] Zuckerman, [Neil Alan] Weiner, & [Barbara] Broffitt,The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const.

L. 3, 52-53, 73, n. 197 (2001) (in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors; and race-based uses of prosecutorial peremptories declined by only 2% after Batson); [Mary R.] Rose, The Peremptory Challenge Accused of Race or Gender Discrimination?

Some Data from One County, 23 Law and Human Behavior 695, 698-699 (1999) (in one North Carolina county, 71% of excused black jurors were removed by the prosecution; 81% of excused white jurors were removed by the defense); [Neely] Tucker, In Moore’s Trials, Excluded Jurors Fit Racial Pattern, Washington Post, Apr. 2, 2001, p. Al (in D.

C. murder case spanning four trials, prosecutors excused 41 blacks or other minorities and 6 whites; defense counsel struck 29 whites and 13 black venire members); [George E.] Mize, A Legal Discrimination; Juries Aren’t Supposed to be Picked on the Basis of Race and Sex, But It Happens All the Time, Washington Post, Oct. 8,2000, p. B8 (authored by judge on the D. C. Superior Court); see also [Kenneth J.] Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L.

Rev. 447, 462-464 (1996) (finding Batson challenges’ success rates lower where peremptories were used to strike black, rather than white, potential jurors); [Jeffrey S.] Brand, The Supreme Court, Equal Protection and Jury Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511, 583-589 (examining judicial decisions and concluding that few Batson challenges succeed); [Eric N. Einhorn,] Note, Batson v. Kentucky and J. E. B. v. Alabama ex rel. T. B.: Is the Peremptory Challenge Still Preeminent? 36 Boston College L.

Rev. 161, 189, and n. 303 (1994) (same); [Jean] Montoya, The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the “Blind” Peremptory, 29 U. Mich. J.L. Reform 981, 1006, nn. 126-127, 1035 (1996) (reporting attorneys’ views on the difficulty of proving Batson claims). Id. at 268-69. A recent report by the Equal Justice Initiative reaches the same dire conclusion: peremptory challenges have become a cloak for race discrimination.

Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Aug. 2010) (hereinafter Equal Justice Initiative Report), available at http://eji.org/eji/files/EJI %20Race%20and%20Jury%20Report.pdf. ¶21 It would be naive to assume Washington is somehow immune from this nationwide problem.

Our Race and Equal Justice Task Force concluded that “[t]he fact of racial and ethnic disproportionality in [Washington’s] criminal justice system is indisputable.” Task Force on Race & Criminal Justice Sys., Preliminary Report on Race and Washington’s Criminal Justice System 1 (2011) (hereinafter Task Force Report), available at http://www.law.washington.edu/About/RaceTask Force/preliminary_report_race_criminaljustice_030111.pdf. ¶22 In over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court’s erroneous denial of a Batson challenge. See Suppl.

Br. of Pet’r at 2, App. A (collecting cases). Saintcalle’s brief cites 42 Washington Batson cases, all of which affirm a trial court’s denial of a Batson challenge. Of those 42 cases, 28 involve the prosecution removing every prospective juror of the same race as the defendant — usually one or two black jurors. In only 6 of these cases were minority jurors permitted to serve, and in 8 it is unclear from the record whether minorities were permitted to serve or not. This is rather shocking and underscores the substantial discretion that is afforded to trial courts under Batson.

And while this alone does not prove that Batson is failing, it is highly suggestive in light of all the other evidence that race discrimination persists in the exercise of peremptory challenges. ¶23 In short, Batson, like Swain before it, appears to have created a “crippling burden,” making it very difficult for defendants to prove discrimination even where it almost certainly exists. II. The changing face of race discrimination ¶24 In part, the problem is that racism itself has changed. It is now socially unacceptable to be overtly racist.

Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them. Racism now lives not in the open but beneath the surface — in our institutions and our subconscious thought processes — because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus. ¶25 Many scholars have written on the topic of unconscious prejudice and implicit bias. In one representative article, Antony Page, Batson’s Blind-Spot: Unconscious Stereotyping and The Peremptory Challenge, 85 B.U. L.

Rev. 155,181 (2005), the author explains how unconscious biases are formed, why they persist, and how they affect our decision-making: In the late 1970s, ... as part of the “cognitive revolution,” psychologists began to explore the notion that discrimination and other forms of biased intergroup judgment may result from ordinary, routine and completely normal cognitive mental processes.

The results of this research suggest that a basic way in which people try to understand their world — categorization— can, of its own accord, lead to stereotyping and discrimination. (Footnotes omitted.) Explaining how race discrimination results from ordinary cognitive processes, he notes that “ ‘[t]he human mind must think with the aid of categories .... We cannot possibly avoid this process. . . . Life is just too short to have differentiated concepts about everything.’ ” Id. at 185 (alterations in original) (quoting Gordon W. AlLlport, The Nature of Prejudice 20, 173 (1954)).

So we use schemas, categories, and cognitive shortcuts that lead us to unknowingly discriminate: Once stereotypes have formed, they affect us even when we are aware of them and reject them. Stereotypes can greatly influence the way we perceive, store, use, and remember information. Discrimination, understood as biased decision-making, then flows from the resulting distorted or unobjective information.

The attorney exercising the peremptory challenge will be unaware of this biased information processing and so will be unaware of her gender- or race-based discrimination____ To put it simply, good people often discriminate, and they often discriminate without being aware of it. Id. at 160-61 (footnotes omitted). Compounding this problem is that stereotyping is often part of our so-called “social heritage”: [Stereotypes about ethnic groups appear as a part of the social heritage of society. They are transmitted across generations as a component of the accumulated knowledge of society.

They are as true as tradition, and as pervasive as folklore. No person can grow up in a society without having learned the stereotypes assigned to the major ethnic groups. Howard J. Ehrlich, The Social Psychology of Prejudice 35 (1973). ¶26 Unconscious stereotyping upends the Batson framework. Batson is equipped to root out only “purposeful” discrimination, which many trial courts probably understand to mean conscious discrimination. See Batson, 476 U.S. at 98. But discrimination in this day and age is frequently unconscious and less often consciously purposeful. That does not make it any less pernicious.

Problematically, people are rarely aware of the actual reasons for their discrimination and will genuinely believe the race-neutral reason they create to mask it. See Page, supra, at 175-77. Since Batson’s third step hinges on credibility, this makes it very difficult to sustain a Batson challenge even in situations where race has in fact affected decision-making. Id. ¶27 More troubling for Batson is research showing that people will act on unconscious bias far more often if reasons exist giving plausible deniability (e.g., an opportunity to present a race-neutral reason).

In one fascinating study, researchers tested peoples’ unconscious desire to avoid contact with handicapped persons. “In a carefully designed experiment, researchers found that when offered a choice of two rooms in which movies were playing, people avoided the room with a handicapped person, but only when doing so could masquerade as a movie preference.” Task Force Report, supra, at 19 (citing Melvin L. Snyder et al., Avoidance of the Handicapped: An Attributional Ambiguity Analysis, 37 J. Personality & Soc. Psychol. 2297, 2297, 2304 (1979)).

But when offered outright the choice of sitting next to a handicapped or nonhandicapped person, people chose to sit by the handicapped person to conceal their prejudice. Id. ¶28 None of this means we should turn a blind eye to the overwhelming evidence that peremptory challenges often facilitate racially discriminatory jury selection. Nor does it suggest we should throw up our hands in despair at what appears to be an intractable problem. Instead, we should recognize the challenge presented by unconscious stereotyping in jury selection and rise to meet it. III.

The constitutional value of a diverse jury ¶29 We should also recognize that there is constitutional value in having diverse juries, quite apart from the values enshrined in the Fourteenth Amendment.

Article I,

section 21 of our state constitution declares, “The right of trial by jury shall remain inviolate.” ¶30 We have juries for many reasons, not the least of which is that it is a ground level exercise of democratic values. The government does not get to decide who goes to the lockup or even the gallows. Ordinary citizens exercise that right as a matter of democracy. In England, the jury developed into juries of one’s peers, coming from one’s community.

This is the grand heritage of the jury system. ¶31 But equally fundamental to our democracy is that all citizens have the opportunity to participate in the organs of government, including the jury. If we allow the systematic removal of minority jurors, we create a badge of inferiority, cheapening the value of the jury verdict. And it is also fundamental that the defendant who looks at the jurors sitting in the box have good reason to believe that the jurors will judge as impartially and fairly as possible.

Our democratic system cannot tolerate any less. ¶32 From a practical standpoint, studies suggest that compared to diverse juries, all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives. Equal Justice Initiative Report, supra, at 6, 40-41. In contrast, diverse juries were significantly more able to assess reliability and credibility, avoid presumptions of guilt, and fairly judge a criminally accused. Id. at 41. “ ‘By every deliberation measure . . . heterogeneous groups outperformed homogeneous groups.’ ” Id. (alteration in original) (quoting Samuel R.

Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition in Jury Deliberation, 90 J. Personality & Soc. Psychol. 597, 608 (2006)). These studies confirm what seems obvious from reflection: more diverse juries result in fairer trials. ¶33 Thus, our Batson analysis should reflect not only the Fourteenth Amendment’s equal protection guaranty but also the jury trial protections contained in

article I,

section 21 of our state’s constitution. IV. What to do about Batson? ¶34 Race should not matter in the selection of a jury, but under current law it often does. We conclude from this that we should strengthen our Batson protections, relying both on the Fourteenth Amendment and our state jury trial right. ¶35 We have a lot of flexibility to do so. The Batson framework anticipates that state procedures will vary, explicitly granting states flexibility to fulfill the promise of equal protection.

Batson, 476 U.S. at 99 n.24 (“[W]e make no attempt to instruct [state and federal trial] courts how best to implement our holding today.”); Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (recognizing that states have “flexibility in formulating appropriate procedures to comply with Batson”); Hicks, 163 Wn.2d at 489-90 (same). Indeed, the Batson procedure itself was born in state courts out of a growing sense that Swain was failing.

Batson, 476 U.S. at 82 n.1, 99. ¶36 Likewise, we have authority under federal law to pioneer new procedures within existing Fourteenth Amendment frameworks. Smith v. Robbins, 528 U.S. 259, 273, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (states have “wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult policy problems”); Dickerson v. United States, 530 U.S. 428, 438-39, 120 S. Ct. 2326, 147 L.

Ed. 2d 405 (2000). ¶37 We can also extend greater-than-federal Batson protections to defendants under the greater protection afforded under our state jury trial right, a fact we recognized in Hicks. 163 Wn.2d at 492. ¶38 Justices Marshall and Breyer argue that the taint of racial discrimination on peremptory challenges is so strong that the only way to remove it is to eliminate the peremptory system altogether. Batson, 476 U.S. at 102-03 (Marshall, J., concurring); Miller-El, 545 U.S. at 266-67, 273 (Breyer, J., concurring).

That may be so. ¶39 Justice González’s concurring heartfelt opinion argues for immediate abolition of the peremptory challenge.

We do not disagree with his call for the need for a departure from the Batson framework, but we believe that such a major change in trial procedure should be tested in the furnace of advocacy at the trial and appellate levels, with the opportunity for input from a broad range of interests, before we abandon a procedure that was adopted by Washington’s first territorial legislature over 150 years ago. “ ‘[W]e are not in the business of inventing unbriefed arguments for parties sua sponte____’ ” In re Pers. Restraint of Coats, 173 Wn.2d 123, 138, 267 P.3d 324 (2011) (quoting State v.

Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999)). Alternatively, as both we and Justice González’s concurring opinion note, it might be more appropriate to consider whether to abolish peremptory challenges through the rule-making process instead of in the context of a specific case. See infra p. 55. ¶40 We have occasionally exercised our power to reach issues not raised by the parties, but this case does not present any of the circumstances justifying exercise of this discretionary power.

The parties have not “ignore [d] a constitutional mandate, a statutory commandment, or an established precedent.” City of Seattle v. McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994). ¶41 With respect to our concurring colleagues, we do not believe that our call for new alternatives to the Batson analysis constitutes “ ‘turning] a blind eye,’ ” “ ‘throwing] up our hands in despair,’ ” or “ ‘shrinking] from this challenge,’ ” concurrence (González, J.) at 70, nor are we reluctant to change the Batson standard simply because the solution presents a difficult question, see concurrence (Stephens, J.) at 65.

Rather, we feel that now is the time to begin the task of formulating a new, functional method to prevent racial bias in jury selection. To do so, we seek to enlist the best ideas from trial judges, trial lawyers, academics, and others to find the best alternative to the Batson analysis. ¶42 But it may instead be possible to address Batson’s shortcomings in a more targeted fashion. The main problem is that Batson’s third step requires a finding of “purposeful discrimination,” which trial courts may often interpret to require conscious discrimination.

This is problematic because discrimination is often unconscious. A requirement of conscious discrimination is especially disconcerting because it seemingly requires judges to accuse attorneys of deceit and racism in order to sustain a Batson challenge. See Robin Charlow, Tolerating Deception and Discrimination After Batson, 50 Stan. L. Rev. 9, 11 (1997) (noting that one judge “had the uncomfortable feeling that she had just rendered an official ruling that the attorney was lying to the court”).

Imagine how difficult it must be for a judge to look a member of the bar in the eye and level an accusation of deceit or racism. And if the judge chooses not to do so despite misgivings about possible race bias, the problem is compounded by the fact that we defer heavily to the judge’s findings on appeal. Hicks, 163 Wn.2d at 486. A strict “purposeful discrimination” requirement thus blunts Bat-son’s effectiveness and blinds its analysis to unconscious racism.

As a first step, we should abandon and replace Batson’s “purposeful discrimination” requirement with a requirement that necessarily accounts for and alerts trial courts to the problem of unconscious bias, without ambiguity or confusion. For example, it might make sense to require a Batson challenge to be sustained if there is a reasonable probability that race was a factor in the exercise of the peremptory challenge or where the judge finds it is more likely than not that, but for the defendant’s race, the peremptory challenge would not have been exercised.

A standard like either of these would take the focus off of the credibility and integrity of the attorneys and ease the accusatory strain of sustaining a Batson challenge. This in turn would simplify the task of reducing racial bias in our criminal justice system, both conscious and unconscious. ¶43 However, a new, more robust framework should do more than simply acknowledge that unconscious bias is a permissible consideration in the Batson analysis. It should seek to eliminate this bias altogether or at least move us closer to that goal.

A new framework should give trial courts the necessary latitude to weed out unconscious bias where it exists, without fear of reversal and without the need to level harsh accusations against attorneys or parties. On the other hand, it may be that Justices Marshall and Breyer are right and the problem is so dire that the only solution is to eliminate peremptory challenges altogether. See Batson, 476 U.S. at 102-03 (Marshall, J., concurring); Miller-El, 545 U.S. at 266-67, 273 (Breyer, J., concurring). ¶44 A rule change of this magnitude might also be best made through the rule-making process.

This court possesses certain rule-making authority inherent in its power to prescribe rules of procedure and practice, which is supplemented by the legislature. State v. Templeton, 148 Wn.2d 193, 212-13, 59 P.3d 632 (2002). We could certainly adopt a rule that would strengthen our procedures for Batson challenges, and this may be the most effective way to reduce discrimination and combat minority underrepresentation in our jury system. V. Application to this case ¶45 As urgent as the need for a new framework may be, we cannot create one in this case.

Neither party has asked for a new standard or framework, nor have they briefed or argued what that framework might be or how it would apply in this case. The issue also was not raised or decided at the Court of Appeals or the trial court. This means the record has not been developed in a way that will facilitate our review, nor have we obtained the benefit of input from amici, including members of the bar and other stakeholders. It must wait for another case. VI.

The trial court did not clearly err by finding there was no purposeful discrimination in this case ¶46 Instead, we apply Batson to this case and conclude that the trial court’s finding that there was no purposeful discrimination was not clear error. A trial court’s decision that a challenge is race-neutral is a factual determination based in part on the answers provided by the juror, as well as an assessment of the demeanor and credibility of the juror and the attorney. Batson, 476 U.S. at 98 n.21. The defendant carries the burden of proving purposeful discrimination. Id. at 93.

The trial judge’s findings are “accorded great deference on appeal” and will be upheld unless proved clearly erroneous. Hernandez, 500 U.S. at 364. Deference to trial court findings is critically important in Batson cases because the trial court is much better positioned than an appellate court to examine the circumstances surrounding the challenge.

Further, deference is important because trial judges must have some assurance that the rest of the trial will not be an exercise in futility if it turns out an appellate court would have ruled on a Batson challenge differently. ¶47 Here, we find no clear error in the trial court’s determination that the prosecution had a valid race-neutral reason to peremptorily strike Ms. Tolson. Ms. Tolson said she might have trouble sitting on the jury of a murder trial because someone she knew had recently been murdered: I mean, I have never been in this situation where I have lost someone. You just went to the funeral.

He is young. Only 24. And to be called to jury duty to perhaps be on a jury of a murder suspect. I don’t know how I’m going to react. You know, I don’t know. I’m — I’m not an emotional person, but I’m thinking as we go through it, and I hear the testimony, and I see the pictures, I don’t know. I mean, I’m just being honest. I don’t know how I’m going to feel. RP (Mar. 10, 2009) at 43. In light of Ms.

Tolson’s statements throughout voir dire, we defer to the trial court’s factual finding that the prosecutor was justified in believing there was a realistic possibility that she might have been “lost” as a juror before the end of the case. The record does not compel a contrary conclusion. The trial court observed the juror and agreed that she was having difficulties. Losing jurors during a lengthy trial is always a possibility, and justice is not served when a mistrial is declared or a juror is unable to view and process the evidence.

Here, it was entirely reasonable for the court to conclude that the prosecutor’s concerns were legitimate and race-neutral, and there was no clear error. We affirm the trial court’s finding that there was no purposeful discrimination. ¶48 We do, however, acknowledge that Ms. Tolson was questioned far more than any other juror, perhaps in part because she was black. This conclusion is supported by a statistical analysis of the prosecution’s voir dire that appears in appendix A, attached to this opinion.

These statistics are rather striking, and in general, disparate questioning of minority jurors can provide evidence of discriminatory purpose because it can suggest that an attorney is “fishing” for a race-neutral reason to exercise a strike. See Miller-El, 545 U.S. at 241; Reed, 555 F.3d at 379. However, disparate questioning does not itself prove purposeful discrimination. In some cases, there may be good reasons to question minority jurors more than nonminority jurors. Here, for example, the prosecutor began by eliciting Ms.

Tolson’s views on race in the criminal justice system and later spoke with her regarding the recent death of her friend. These were legitimate topics to explore. We defer to the trial court that the disparate questioning in this case, while it may have been motivated in part by race, did not necessarily amount to purposeful discrimination. ¶49 We also acknowledge that the prosecution attempted to strike the only Mexican-American juror in the venire, juror 10. RP (Mar. 10, 2009) at 119-20.

And while it is true that a court’s finding of discrimination against one juror is evidence of discrimination against others, it does not follow that one Batson violation necessarily implies another. Snyder, 552 U.S. at 478. ¶50 Under Batson, we defer to the trial court’s ruling. CONCLUSION ¶51 Racial inequalities permeate our criminal justice system and present important moral issues we all must grapple with. Twenty-six years after Batson, it is increasingly evident that discriminatory use of peremptory challenges will be difficult to eradicate.

We should not shrink from this challenge, but this is not the case to address it. It must wait for another day to determine how to adapt Batson to the realities of continuing race discrimination and fulfill the promise of equal protection. ¶52 We affirm the Court of Appeals. Owens, J., concurs.

A recent report by Washington’s Race and Equal Justice Task Force notes that “ “bias pervades the entire legal system in general and hence [minorities] do not trust the court system to resolve their disputes or administer justice evenhandedly.’ ” Task Force on Race & Criminal Justice Sys., Preliminary Report on Race and Washington’s Criminal Justice System 6 (2011) (alteration in original), available at http://www.law.washington.edu/About/RaceTaskForce/preliminary_report _race_criminal_justice_030111.pdf (quoting Wash. St.

Minority & Justice Comm’n, 1990 Final Report at xxi (1990), available at http://www.courts.wa.gov/committee /pdFTaskForce.pdf). The State argued for the first time in its supplemental brief that we should repudiate the bright line rule approved by a majority of this court that “a defendant establishes a prima facie case of discrimination when . . . the record shows that the State exercised a peremptory challenge against the sole remaining venire member of the defendant’s constitutionally cognizable racial group.” State v.

Rhone, 168 Wn.2d 645, 659, 229 P.3d 752 (2010) (Alexander, J., dissenting) Rhone was a split decision, with a four-justice lead opinion rejecting the proposed bright line rule, a four-justice dissent supporting it, and Chief Justice Madsen concurring, stating that “I agree with the lead opinion in this case. However, going forward, I agree with the rule advocated by the dissent.” Id. at 658 (Madsen, C.J., concurring).

We grant Saintcalle’s motion to strike the issue because any statement about the Rhone bright line rule would be dictum in this case and because the State failed to raise the issue in a timely manner. RAP 13.4(d). “The general findings, confirmed by hundreds of articles in peer-reviewed scientific journals are that ‘[ilmplicit biases — by which we mean implicit attitudes and stereotypes — are both pervasive (most individuals show evidence of some biases), and large in magnitude, statistically speaking.

In other words, we are not, on average or generally, cognitively colorblind.’ ” Task Force Report, supra, at 19 (alteration in original) (quoting Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 471 (2010)). See, e.g., Eva Paterson, Kimberly Thomas Rapp & Sara Jackson, The Id, The Ego, and Equal Protection in the 21st Century: Building upon Charles Lawrence’s Vision To Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175 (2008); Gordon W. Allport, The Nature of Prejudice 20,173 (1954); Howard J.

Ehrlich, The Social Psychology of Prejudice 35 (1973); see Felicia Pratto & Oliver P. John, Automatic Vigilance: The Attention-Grabbing Power of Negative Social Information, 61 J. Personality & Soc. Psychol. 380, 381 (1991). Social schemas can exist at any level of abstraction and along any dimension, such as identity group (for example, race), character traits (for example, dominance), physical traits (for example, tall), social roles (for example, occupation), or general person impressions.

Whites in America may attribute to blacks character traits such as laziness or hostility, physical traits such as kinky hair, roles such as entertainer or drug-dealer, and an overall negative person impression. Page, supra, at 189. People generally match and compare incoming information with the most relevant schema or sub-schema. They then tend to order and process new related stimuli in keeping with other elements of the schema.

A schema essentially operates as an implicit theory, which reflexively “directs the perceiver’s attention . . . mediates inferences . . . guides judgment and evaluation; and .. . fills in ... values for unexpected attributes.” It is a way to integrate new material into familiar understanding and a way to draw conclusions beyond the information given. Not only do we assume the British are reserved or that Canadians are funny (if they are), but we also expect the British to act reserved and Canadians to be funny. Id. at 189-90 (alterations in original) (footnotes omitted) (quoting Eliot R.

Smith, Mental Representation and Memory, in 1 Handbook of Social Psychology 391, 404 (Daniel T. Gilbert et al. eds., 4th ed. 1998)). Likewise, “[m]any defense lawyers fail to adequately challenge racially discriminatory jury selection because they are uncomfortable, unwilling, unprepared, or not trained to assert claims of racial bias.” Equal Justice Initiative Report, supra, at 6. It could be argued (although none of the parties makes this argument) that “purposeful discrimination” already encompasses unconscious bias.

This argument flows from the idea that the “purposeful discrimination” requirement was never intended to be a proxy for conscious intent or anything resembling a conscious mens rea, but rather a signpost for distinguishing between discriminatory purpose and disproportionate impact. Before Batson was decided, it was well established that disproportionate impact alone does not violate the equal protection clause. See Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976).

It could be argued that Batson’s “purposeful discrimination” requirement therefore meant not that the state’s attorney need be found intentionally racist, only that racial bias (conscious or unconscious, as the argument would go) be the source of any disparate impact. This argument finds support in scholarship and in the United States Supreme Court’s equal protection jurisprudence regarding jury selection. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct. 1221, 31 L.

Ed. 2d 536 (1972) (finding that disproportionate exclusion of blacks in subjective jury selection process was clearly discriminatory even with “no evidence that the commissioners consciously selected by race”); Batson, 476 U.S. at 94 (citing Alexander); see also Hernandez v. Texas, 347 U.S. 475, 482, 74 S. Ct. 667, 98 L.

Ed. 866 (1954) (“The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual . . . .”); Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1090-93 (2009) (concluding that “discriminatory purpose” includes unconscious bias under current equal protection jurisprudence). This argument makes sense, but we do not consider it here.

The issue was not raised or decided below, the trial court easily could have understood “purposeful discrimination” to include unconscious bias, and the facts of this case simply do not compel a finding of purposeful discrimination even if considering unconscious discrimination. Ironically, Justice Stephens’s concurring opinion takes this opinion to task for discussing possible solutions and then launches into a lengthy criticism of possible solutions. Concurrence (Stephens, J.) at 66-68.

The charts in appendix A track two relevant measures of prosecutor questioning: (1) the number of questions asked of each juror by the prosecution and (2) the total number of words spoken (by both prosecutor and venireperson) in direct interaction with each prospective juror. Totals do not include statements or questions made by the prosecutor to the venire at large that were not directed to any particular juror. Totals omit voir dire by defense counsel and individual questioning conducted outside the presence of the full venire.

The chief justice’s concurring opinion criticizes our reference to statistics of the number of questions asked of Ms. Tolson compared with the other jurors, asking why additional questions were asked and “many other factors,” and disclaiming any reliance on statistics. Concurrence (Madsen, C.J.) at 63-64. This criticism is particularly inapt in light of this opinion’s extensive quotations from the voir dire of Ms. Tolson, supra pp. 36-40, 56, and one statement that disparate questioning does not itself prove purposeful discrimination.

Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution

article IV,

section 2(a).