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Last week the Washington State Supreme Court made a ruling that lowers the bar for parties to a civil case to get a hearing for a new trial based on racial bias, and put the burden on the opposing party to prove that racial bias did not affect the verdict.
Here's the Seattle Times article on the decision: https://www.seattletimes.com/seattle-news/law-justice/justices-unanimously-expand-protections-against-racism-in-wa-civil-cases/
And the decision itself: https://www.courts.wa.gov/opinions/pdf/976724.pdf
The decision introduces a framework with a couple of points:
In civil cases a hearing for a new trial must be granted in case an objective observer (defined as 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.
At the hearing it will be presumed that race was a factor and a new trial must be granted unless the opposing party can prove that race was not a factor. From the decision: "At the hearing, the trial court is to presume that racial bias affected the verdict, and the party benefiting from the alleged racial bias has the burden to prove it did not."
The ruling doesn't give any guidance on how to prove that racial bias did not affect a verdict. Given that unconscious biases are included in the definition of an objective observer evaluating whether race could be a factor, even subpoenaing the whole jury and asking each juror if bias influenced them wouldn't be sufficient. Jurors could still harbor biases they are unaware of and so cannot testify to. The decision gives the party alleged to benefit from racial bias an impossibly high bar to prove that it did not.
In the case that brought about the decision these factors were cited as things that could have tainted the verdict with racial bias:
Defense said that the plaintiff was "confrontational" and "combative" on cross examination.
Defense said that plaintiff's witnesses all using the same phrase to describe the plaintiff as "life of the party" was suggestive that they colluded on their testimony.
Defense suggested that the plaintiff's chiropractor may be biased because plaintiff is employed by that chiropractor.
Defense said that the damages sought by the plaintiff, $3.5 million, and the timeline in reporting injuries to doctors, were an indicator that the trial was about financial gain.
Plaintiff says the jury asked that the plaintiff not be present in the courtroom for the verdict. This is disputed by the judge, who said it is her regular practice to ask both parties to wait in the hallway for the verdict so that jurors can speak with the attorneys without their clients present.
The motion for a hearing for a new trial was raised at trial. The trial court said it could not "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 Supreme Court said "that reasoning gets it exactly backward."
In practice it seems like this is going to benefit the richest parties in civil cases. The losing side should always seek a new trial on this basis, even if it's a longshot based on language that few would recognize as an instance of bias.
If you can meet this low bar, which is met by such things as suggesting a witness could be biased because they employ the plaintiff, then a new trial is inevitable. That is, unless you can somehow achieve the impossible and prove that racial bias was not a factor. If you don't have enough money to afford attorneys for another trial, or even to represent you at the hearing, you're at a huge disadvantage.
The jury actually found in favor of the plaintiff in this case, just not in the amount she was seeking. She sued for $3.5 million and was awarded $9,200.
The three Supreme Court justices up for re-election this year are running unopposed.
Since this is for state civil cases getting a trial to the federal Supreme Court is very unlikely, yeah? Sucks to be a defendant in Washington. Is this just another benign tumor of degenerate legal precedence or will this actually effect outcome do you think?
The only likely avenue for getting it to the US Supreme Court is if a white person attempts to use the same tactic, the Washington Supreme Court says "You're white, no retrial for you", and it's appealed on equal protection grounds.
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