STATE OF WASHINGTON v. KIRK RICARDO SAINTCALLE, Supreme Court of Washington, August 1, 2013

Kirk Saintcalle, a black man, challenged his first degree murder conviction claiming that the State peremptorily struck the only black venireperson in the jury pool. Saintcalle’s challenge was rejected but in the context of this case the Washington Supreme Court calls for “new alternatives to the Batson analysis” to identify ways to take into account implicit biases:

“Unconscious stereotyping upends the Batson framework. Batson is only equipped to root out “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.

The full opinion is well worth reading for anyone interested in how implicit bias will be considered in the courts. It’s available at the Washington Supreme Court site,

http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=862575.pdf