Alicia Thompson v. Janelle Henderson

The Washington Supreme Court created a novel, unworkable standard for granting a new civil trial when a party alleges that implicit or unconscious racial bias affected the verdict. Under this standard, a party “makes a prima facie showing” of “racial bias”—requiring an evidentiary hearing—whenever an “objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” App.3a. “At the hearing, the trial court is to presume that racial bias affected the verdict” and order a new trial unless the non-moving party proves “racial bias had no effect on the verdict.” App.20a. The Washington Supreme Court applied the first portion of its new standard here, finding a prima facie showing of racial bias. This ruling rested solely on defense counsel’s race-neutral, evidence-based closing arguments addressing witness credibility. App.20a-25a. These are the same types of arguments made every day in trial courts throughout our nation, and they are consistent with Washington’s own Pattern Jury Instructions. The questions presented are:

1. Whether the Washington Supreme Court’s novel standard addressing implicit bias violates the Due Process Clause—by prohibiting counsel from presenting race-neutral, evidence-based arguments, in certain circumstances, while placing a burden on the non-moving party that is practically impossible to satisfy.

2. Whether the Washington Supreme Court’s novel standard addressing implicit bias violates the Equal Protection Clause—by unconstitutionally injecting racebased decisionmaking into the judicial process. (i)