Former AJA President Catherine Shaffer Talks To Fox News!

Here is a recap of Judge Shaffer’s interview.

The case

On July 19, 2019, the Washington State Supreme Court issued a decision in a murder and assault case involving a motion for a new trial because of allegations that the jury deliberations were tainted by racial bias.  The decision focused on the trial court’s responsibility to oversee the process of determining whether this occurred, including deciding whether to hold an evidentiary hearing and controlling how jurors are to be questioned about deliberations.

The case: State of Washington versus Tomas Mussie Berhe, 444 P.3d 1172, filed July 18 2019.  

Summary: A jury convicted petitioner Tomas Berhe of first degree murder and first degree assault. After the trial, juror 6, the only African-American juror came forward to the defense and to the court.  Juror 6 indicated to the defense that she was treated in an abusive and dismissive way that seemed to be based on her race.  The trial court denied Berhe’s motion for a new trial without an evidentiary hearing, instead relying solely on written declarations prepared with the aid of counsel on both sides.

The Ruling 

The Washington Supreme Court ruled that the trial court failed to exercise sufficient oversight and conduct a sufficient inquiry before denying the defendant’s motion for new trial without an evidentiary hearing.   The court vacated the trial court’s order denying the new trial motion and remanded the case for further inquiry and other proceedings as necessary.

King County Superior Court Judge Catherine Shaffer, a co-chair of the King County Superior Court’s Jury Committee, interprets the ruling this way:


As the Washington Supreme Court pointed out, racial bias is a common and pervasive evil that causes systematic harm to the administration of justice.  And where explicit or implicit racial bias factors into a jury verdict, as the state Supreme Court said, “the defendant is deprived of their constitutional right to a fair trial by an impartial jury.”

Both because it is difficult for those who are racially biased to admit their bias, and because implicit racial bias is unconscious and can influence decision making without the decision maker recognizing that influence, the state Supreme Court held that trial courts must control the inquiry when it is alleged that racial bias in the jury influenced the jury’s verdict.

This seems logical.  “If this were a group setting and someone asked, “Are you a racist?” do you really think you would get an honest answer?” posited Judge Shaffer.   

For trial courts, it is also very important that the information gathered from jurors is done on the record, under the oversight of the court, and in an open-ended way.  In the Berhe case, unfortunately, the prosecutors acted without court oversight and sent a two-question survey to the jurors which asked, “Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?” and “Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias?” This tended to lead the jurors into a response that supported the prosecutor’s opposition to the new trial motion and undermined the ability to find the facts.

What is the guidance

The state Supreme Court asked trial courts to be more engaged in the process of assessing an allegation of racial bias tainting a verdict, from the start.  It said that as soon as defense counsel learned that juror 6 was alleging racial bias in deliberations, the court and prosecutors should have been notified, and the court should have instructed counsel to have no further communications with jurors about the alleged bias unless on the record and overseen by the court.

The state Supreme Court directed that a trial court should first decide if there is sufficient information, objectively viewed, to indicate race played a factor in the verdict.  If this evidence is unclear, the court should, on the record, make further inquiries, such as asking the juror alleging bias to provide more information or clarify their statements.  If it appears that there is information indicating racial bias did play a part in the verdict, then the court should hold an evidentiary hearing.

Judge Shaffer believes the state Supreme Court provided helpful guidance to trial courts that they must be more engaged, in cases involving allegations that racial bias affected a verdict, in gathering clarifying information about whether race played a role in the deliberations.

This does not mean that trial courts will be investigating or breaching the secrecy of deliberations.  Instead, the Berhe decision creates a roadmap for courts looking at the specific question of whether racial bias influenced a verdict.

We do this already 

Trial courts are quite familiar with the process of talking to jurors, because they do it often in jury selection and occasionally during trial when there are allegations of misconduct.  For post-verdict inquiries into racial bias, the decision means trial courts use a similar approach and supervise the process.

If this happened in her courtroom, and inquiries of juror 6 on the record indicated racial bias had an impact on the verdict, Judge Shaffer said she would consult with counsel, on the record, in her court to develop open-ended questions for an evidentiary hearing such as, “Did you notice Juror 6 being treated in a different way? Why do you think that happened?” She would then have jurors questioned individually to get at the most honest answers.  This is very similar to the procedure that is used in many cases in jury selection to investigate potential issues of bias, for example in cases that have drawn pretrial publicity or that raise sensitive issues.

“We have questionnaires. For example, a sexual assault trial, you ask if the juror can be fair if the juror has been the victim of sexual assault or is close to someone who has. Then we listen carefully,” said Judge Shaffer.

“In the Ride the Ducks trial, we had a lot of questions to get to whether people could be fair: Do you have detailed information about the Ducks incident? Are you familiar with the Aurora Avenue Bridge? Have you or people close to you been in a serious vehicle accident?

“There are certainly times people aren’t forthcoming. When I was a prosecutor, I had a juror who remained silent on a particular issue during voir dire. We had the trial. During jury deliberations, she said based on a particular belief and experience she had not disclosed in voir dire, she absolutely would NOT agree to convict on a particular charge. So it was 11-1 on that charge, but we had other charges.”

Is this a groundbreaking ruling? Not particularly. This is the direction the county is going. “We take allegations of racial bias very seriously,” Judge Shaffer said, “That implicit and explicit bias can negatively affect the court system is well established.  Justice Yu referenced that problem in her decision. Other organizations that have published on this topic include the American Bar Association, Scientific American, and the National Center for State Courts.”

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