* In re Pers. Restraint of Rhone

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
In the Matter of the Personal Restraint of 	) 	No. 101204-7
)
THEODORE R. RHONE, 	) 	EN BANC
)
Petitioner. 	) 	Filed
)
)
OWENS, J.—All defendants have a right to be tried before a jury selected by
nondiscriminatory criteria. Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986). Race discrimination in jury selection violates the Fourteenth
Amendment’s equal protection guaranty. Id.; State v. Jefferson, 192 Wn.2d 225, 242-
43, 429 P.3d 467 (2018); U.S. CONST . amend. XIV. Batson, while designed to
remove racism from the jury selection process, has fallen short of its objective. See
Miller-El v. Dretke, 545 U.S. 231, 267-69, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005)
(Breyer, J., concurring). This court has since taken steps to increase the effectiveness
of Batson and protect defendants and prospective jurors from implicit racial
discrimination. See City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017)
: May 11, 2023
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
MAY 11, 2023
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MAY 11, 2023
ERIN L. LENNON
SUPREME COURT CLERK
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2
In re PRP of Rhone
No. 101204-7
(modifying the first step of Batson to establish a prima facie case of discrimination
when the last person of a racially cognizable group is struck from the jury venire);
Jefferson, 192 Wn.2d at 252 (modifying the third step of Batson to require trial courts
to “ask if an objective observer could view race as a factor in the use of the
peremptory challenge”); GR 37 (seeking to eliminate bias in peremptory challenges
by requiring an objective evaluation in light of implicit, institutional, and unconscious
biases and listing presumptively invalid reasons that have historically been associated
with improper discrimination).
In his direct appeal, petitioner Theodore Rhone asked this court to adopt a
bright line rule establishing a prima facie case of discrimination when the State
peremptorily strikes the last member of a racially cognizable group from a jury
venire. Without the benefit of the considerable knowledge we have gained regarding
the impact of implicit bias in jury selection, a fractured majority of this court declined
to adopt Rhone’s proposed rule in 2010. But seven years later, we did. Erickson,
188 Wn.2d 721. Although this case comes to us as a personal restraint petition
(PRP), the central issue is our 2010 decision in Rhone’s own case. We take this
opportunity to revisit and correct that decision. Given the unique factual and
procedural history of this case and in the interest of justice, we recall our prior
mandate, reverse Rhone’s convictions, and remand for a new trial.
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In re PRP of Rhone
No. 101204-7
3
FACTS
Rhone proceeded to trial on charges of first degree robbery, unlawful
possession of a controlled substance with intent to deliver, unlawful possession of a
firearm, and bail jumping. During jury selection, the parties agreed to remove one of
the two Black venire jurors in the 41-member pool for cause. The prosecution—using
a peremptory challenge—struck the remaining Black venire juror. After the court
swore in the jury, Rhone made the following statement:
I don’t mean to be facetious or disrespectful or a burden to the Court.
However, I do want a jury of my peers. And I notice that [the
prosecutor] took away the [B]lack, African-American, man off the jury.
Also, if I can’t have—I would like to have someone that represents my
culture as well as your culture. To have this the way it is . . . seems
unfair to me. It’s not a jury of my peers. . . . I am an African-American
[B]lack male, 48 years old. I would like someone of culture, of color,
that has—perhaps may have had to deal with [improprieties] and so
forth, to understand what’s going on and what could be happening in this
trial.
State v. Rhone, 168 Wn.2d 645, 649, 229 P.3d 752 (2010) (Rhone II) (plurality
opinion) (quoting 6 Verbatim Rep. of Proc. (VRP) (Apr. 28, 2005) at 439 (Wash. No.
80037-5 (2006))), abrogated by Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017).
The court understood Rhone’s statement as a Batson challenge, found no prima
facie case of discrimination, and declined the State’s offer to respond. The court
explained:
“Here the defendant has not provided this Court with any evidence of
circumstances raising an inference of discrimination by the prosecution.
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In re PRP of Rhone
No. 101204-7
4
The defendant merely makes a bare assertion that there are no African-
Americans on this jury.”
Id. at 650 (quoting 7 VRP (Apr. 28, 2005) at 452). The court continued:
The Court notes that there were only two African Americans in
the entire . . . panel. One was excused for cause based on agreement by
the defense. Therefore, out of a panel of 41, there was only one African
American in the pool.
7 VRP (Apr. 28, 2005) at 452-53. And the court added:
“The mere fact that [sic] State exercised its preemptory [sic] on that
African-American, without more, is insufficient to establish a prima
facie case of discrimination.
Rhone II, 168 Wn.2d at 650 (quoting 7 VRP (Apr. 28, 2005) at 453). After the court
denied Rhone’s request for a new jury panel, the jury convicted him of all charges.
Based on his stipulation to three prior most serious offenses, Rhone received a life
sentence without the possibility of parole for two of his convictions. State v. Rhone,
noted at 137 Wn. App. 1046, 2007 WL 831725, at *3 (Rhone I).
Rhone appealed, and the Court of Appeals affirmed, holding that Rhone failed
to prove a prima facie case under step one of Batson. Id. at *7. This court granted
review of the Batson issue only. Rhone II, 168 Wn.2d at 648. Rhone argued for a
bright line rule announcing that a defendant establishes a prima facie case of
discrimination whenever a prosecutor peremptorily challenges the only remaining
venire member of a racially cognizable group. Id. at 652. Four justices declined to
adopt or apply a bright line rule to Rhone’s case, reasoning that this court had recently
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In re PRP of Rhone
No. 101204-7
5
reaffirmed that a trial court may, but is not required to, find a prima facie case in such
circumstances. Id. at 653 (quoting State v. Thomas, 166 Wn.2d 380, 397, 208 P.3d
1107 (2009)).
The four-justice dissent would have adopted a bright line rule establishing a
prima facie case of discrimination when “the last remaining minority member of the
venire is peremptorily challenged.” Id. at 661 (Alexander, J., dissenting). The ninth
justice concurred with the majority but stated, “[G]oing forward, I agree with the rule
advocated by the dissent.” Id. at 658 (Madsen, C.J., concurring).1
In 2017, this court substantially adopted the bright line rule Rhone proposed on
direct appeal. Erickson, 188 Wn.2d 721. Rhone now seeks collateral relief based on
Erickson. The Court of Appeals held that Rhone’s PRP is not time barred because
Erickson is a significant, material, and retroactive change in the law, and it transferred
the petition to this court as successive. In re Pers. Restraint of Rhone, 23 Wn. App.
2d 307, 313, 319-22, 516 P.3d 401 (2022) (citing RCW 10.73.100(6)). We retained
the matter for hearing.
1 In State v. Meredith, 178 Wn.2d 180, 182, 306 P.3d 942 (2013), abrogated by Erickson, 188
Wn.2d 721, we clarified that the rule advocated by the Rhone II dissent was not precedent. Chief
Justice Madsen expressed approval of a bright line rule in the future but agreed not to adopt such
a rule in Rhone’s case. Id. at 184.
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In re PRP of Rhone
No. 101204-7
6
ISSUE
Should the court recall the mandate in Rhone’s case and reverse based on the
bright line rule he argued for on direct appeal, which was later adopted in Erickson?
ANALYSIS
Batson sets forth a three-part test to address unconstitutional peremptory
strikes: (1) the party challenging the strike must establish a prima facie case that
“‘gives rise to an inference of discriminatory purpose,’” (2) if a prima facie case is
established, the striking party must provide an adequate race-neutral explanation, and
(3) if a race-neutral explanation is provided, the trial court must weigh the
circumstances to decide whether the strike was racially motivated. Erickson, 188
Wn.2d at 726-27 (quoting Batson, 476 U.S. at 94). The Batson framework has been
roundly criticized for its inefficacy at prohibiting discriminatory peremptory strikes.
See Miller-El, 545 U.S. at 268-72 (Breyer, J., concurring) (surveying studies finding
Batson challenges rarely succeed). Recognizing that racism continues to plague jury
selection,2 this court has altered the Batson test to better effectuate its goals.
Erickson, 188 Wn.2d at 733-34; Jefferson, 192 Wn.2d at 249-51.
2 EQUAL J UST. INITIATIVE, R ACE AND THE J URY : ILLEGAL R ACIAL D ISCRIMINATION IN J URY
S ELECTION (2021) (explaining that racially discriminatory jury selection inflicts harm on
excluded jurors, produces wrongful convictions, and compromises the integrity of the legal
system), https://eji.org/wp-content/uploads/2005/11/race-and-the-jury-digital.pdf
[https://perma.cc/N965-RCGS].
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In re PRP of Rhone
No. 101204-7
7
Our decisions strengthening Batson protections came after Rhone’s direct
appeal—and we embraced the very argument he advanced on appeal. See Erickson,
188 Wn.2d at 732. As a result, Rhone was placed in the unfortunate position of
seeking collateral relief to revisit the question of whether his jury selection process
was unconstitutional. The interests of justice therefore require us to recall our
mandate in Rhone II and grant Rhone relief. RAP 2.5(c)(2); RAP 12.7(d); RAP 12.9.3
It is undeniable that our understanding of the impact of implicit racial bias on jury
selection has changed since our 2010 decision. “We can develop a greater awareness
of our own conscious and unconscious biases in order to make just decisions in
individual cases, and we can administer justice and support court rules in a way that
brings greater racial justice to our system as a whole.” Letter from Wash. State Sup.
Ct. to Members of Judiciary & Legal Cmty. (June 4, 2020),
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judici
ary%20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-
H5P7]. Recalling the mandate in the unique circumstances of Rhone’s case
accomplishes this mission; we must allow him to benefit from the rule he proposed
that ultimately became the law in this state.
3 To the extent this disposition waives or alters any provision of the appellate rules, we do so to
serve the ends of justice. RAP 1.2(a), (c). To be clear, our decision today gives Rhone the
benefit of the burden-shifting rule he proposed on direct appeal. See Rhone II, 168 Wn.2d at
652. It does not retroactively apply any precedent.
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In re PRP of Rhone
No. 101204-7
8
CONCLUSION
We recall the Rhone II mandate, reverse Rhone’s convictions,4 and remand for
a new trial.
4 Two of Rhone’s convictions have been vacated on other grounds. State v. Rhone, No. 46960-0-
II, slip op. (Wash. Ct. App. July 6, 2016) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2046960-0-II%20Unpublished%20Opinion.pdf.
WE CONCUR:
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