In a long-awaited opinion (a year and a half—a crazy long time for this court), the Washington Supreme Court last week ruled in Henderson v. Thompson that parties to civil actions have a right to a trial free from racial bias, extending the logic of its decision in State v. Zamora that Lisa blogged about last July.

In Zamora, the court found that a criminal conviction affected by racism violates fundamental concepts of fairness and equal justice under the law. As a result, race-based prosecutorial misconduct can never be “harmless error.”

Last week, the court reaffirmed the idea that the decision of a judge or jury tainted by racial bias can never be a just decision, whether it occurs in a civil or criminal case.

 Here’s the setup. Janelle Henderson, a Black woman, was rear-ended by Alicia Thompson, a white woman. Henderson claimed that the collision exacerbated her Tourette’s Syndrome and sought compensation for medical care and the physical and mental pain caused by the collision.

At trial, the only Black people in the courtroom were Henderson, Henderson’s attorney, and Henderson’s friends and family who testified as witnesses. No one on the jury was black. The judge was a white woman. The defense attorney was a white woman.

During closing arguments, defense counsel characterized Henderson as “confrontational” and “combative.” These terms evoke the stereotype of a angry Black woman. Defense counsel contrasted Henderson to her client, who she said felt “intimidated and emotional” about the process and who provided “genuine and authentic testimony.” Defense counsel argued that Henderson was simply after a windfall, suggesting that Henderson waited to report the collisio0n to her neurologist until after she realized she could profit from the collision. This played on the racist stereotype that Black women are untrustworthy, lazy, greedy, and deceptive. And defense counsel suggested that Plaintiff and her Black friends and family colluded and lied to the jury.

Rather than the $3.5 million in damages suggested by Plaintiff’s counsel, Defense counsel suggested just $60,000. The jury awarded only $9,200. After the verdict, Henderson was asked to leave the courtroom before the jury came out.

Henderson filed a motion for new trial, arguing that defense counsel’s racially biased statements influenced the jury’s unconscious bias against a Black Plaintiff. The trial court denied the motion, saying that while the terms “combative” and “intimidated” could be interpreted as having racial overtones, they weren’t a racist dog whistle because the terms were tied to the evidence in the case and that a court “cannot require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.”

The Washington Supreme Court disagreed, noting that the problem with using racist language, or “dog whistles” whether linked to the evidence or not, is that it “can influence our decisions without our awareness.” Which is why courts must look at the effect of racially biased language, not the intent of the actor using the language, when evaluating whether a verdict has been affected by racism. All litigants, whether civil or criminal, are entitled to a trial by an unbiased jury.

The court must decide if a party has made a showing of evidence that, if “taken as true, permits an inference that an objective
observer who is aware of the influence of implicit bias could view race as a factor in the jury’s verdict.” The court noted that this standard “speaks to possibility, not certainty, and to impact, rather than intent.”

If so, they are entitled to an evidentiary hearing about whether a new trial is warranted. At the hearing, the court must presume racial bias affected the verdict, and the party opposing the new trial has the burden to prove it did not. If that party cannot prove that racial bias had no effect on the verdict, then the verdict is incompatible with substantial justice and the court should order a new trial.

This opinion is an important affirmation that all parties involved in the justice system have a right to a trial free from racial bias. The court continues its efforts at chipping away at racial bias that has long played a role in our court system.