Henderson v. Thompson – Shifting the Burden of Proving Racial Bias
A. Introduction
In Henderson v. Thompson, 200 Wn.2d 417, 518 P.3d 1011 (2022), the Washington Supreme Court held that once a prima facie showing of racial bias has been made at a civil trial, the party claiming bias is entitled to an evidentiary hearing on a motion for new trial, where the burden of disproving racial bias falls on the party seeking to preserve the verdict. While the right to an impartial jury is critical to our justice system, the Court’s decision in Henderson begs the question of what arguments a defense attorney can make that will not trigger a presumption that racial bias played a role in a jury’s verdict.
B. Background Concerning Trial Court Ruling
In Henderson, Janelle Henderson, a Black woman, sued Alicia Thompson, who is White, for damage arising out of a rear-end automobile accident. Ms. Thompson conceded fault but made no offers of settlement. At trial, Thompson’s defense team attacked the credibility of Henderson and her counsel, who was also a Black woman, in a manner characterized by the Supreme Court as “call[ing] on racist tropes.” Henderson, 200 Wn.2d at 422. Specifically, Thompson’s counsel argued:
Despite Henderson’s request that the jury return a significant verdict, the jury returned a verdict in favor of Henderson for only $9,200, lower than the verdict suggested by Thompson. After the verdict, Henderson was asked to leave the courtroom before the jury exited the jury room.
Henderson filed a CR 59 motion for a new trial or, in the alternative, for additur seeking an award of $60,000 (the amount defense counsel stated in closing argument would be reasonable if the jury found that Henderson was injured in the accident and found that her Tourette’s syndrome was aggravated as a result). Henderson’s counsel argued that defense counsel’s “biased statements in closing likely influenced the jury's unconscious bias against plaintiff such that justice was not done.” Id. at 428. She also noted that the jury returned a verdict far below the figure defense counsel had suggested as well as the fact Henderson was requested to leave the courtroom as evidence that the defense’s appeals to racial bias affected the verdict.
The trial court denied Henderson’s motion without allowing an evidentiary hearing. In part, the judge commented it was “her own regular practice to ask parties to leave the courtroom before the jury returned after a verdict and not a request by the jury.” Id. at 428-49. The court also commented that 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.” Id. at 422 (citation omitted).
C. The Washington Supreme Court’s Reversal
The Supreme Court reversed the trial court ruling, relying heavily on its recent opinion in a criminal matter, State v. Berhe, 193 Wn.2d 647, 444 P.3d 1172 (2019). In Berhe, the Court held that when a criminal defendant seeks a new trial based upon racial bias, and the defendant makes a prima facie showing that an “objective observer” could view race as a factor in the verdict, the trial court must hold an evidentiary hearing. Id. at 665. The Court defined an “objective observer” as “one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced verdicts in Washington state.” Id.
In applying the Berhe test in civil cases, the Court noted that “[c]ivil and criminal litigants are equally entitled to a trial by an unbiased jury.” Henderson, 200 Wn.2d at 434. Therefore, Thompson merely needed to demonstrate that an objective observer “could” view race as a factor in the verdict. Id. at 435. The Court opined that Thompson had made such a showing and, thus, the trial court had erred in denying an evidentiary hearing. The Court noted an “objective observer could conclude that the themes and arguments advanced by defense counsel suggested Henderson and her witnesses were not credible because of their race and considering the totality of the circumstances of this trial, an objective observer could therefore conclude that racism affected the verdict.” Id. at 439.
Henderson is notable in that once a party establishes a prima facie case of racial bias, the court must presume racism was a factor in the verdict. This shifts the burden to the party asking the Court to uphold the verdict to prove it was not. Given the difficulty of proving a negative, it is questionable whether parties, and specifically in our case defendants, will be able to overcome the presumption that racial bias affected the verdict once bias has been established.
Concerning to the defense bar is that the arguments employed by Thompson’s counsel appear to be race-neutral and of the sort that are routine in trials where the defense seeks to attack a witness’s credibility. For instance, the argument that Henderson was merely seeking a financial windfall could apply equally to litigants of all racial backgrounds. However, the Court was highly critical of these statements as well as the defense argument that Henderson was exaggerating or fabricating her injuries, claiming it “appealed to . . . negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.” Henderson, 200 Wn.2d at 437.
The Court was also critical of the defense argument that Henderson’s lay witnesses colluded. The Court went as far as comparing these statements to prosecutorial misconduct found in another Supreme Court case, State v. Monday, 171 Wn.2d 667, 678-79, 257 P.3d 551 (2011). In Monday, the prosecutor argued that Black witnesses were unreliable because there was a “code” that “[B]lack folk don't testify against [B]lack folk.” Id. at 676. Contrary to the defense argument in Henderson that the plaintiff witnesses colluded due to their shared description of Henderson as the “life of the party,” there was no evidence in the record to support the prosecutor’s argument in Monday, thus supporting the prosecutor’s remarks constituted an “attempt to discount several witnesses’ testimony on the basis of race alone.” Id. at 678. This distinction was disregarded by the Court in Henderson – albeit, Justice Sheryl Gordon McCloud authored a concurring opinion raising this issue.
D. Petition for Writ of Certiorari to the U.S. Supreme Court
On March 1, 2023, Thompson filed a Petition for Writ of Certiorari to the United States Supreme Court. The U.S. Chamber of Commerce and American Tort Reform Association filed an amicus brief in support of Thompson’s Petition.
Both the Petition and amicus brief raise valid concerns regarding the Henderson ruling, such as whether the Washington Supreme Court’s implicit bias standard violates the Due Process Clause and/or the Equal Protection Clause. For example, Thompson’s Petition argues the Washington Supreme Court’s decision, while seeking to minimize racial bias in civil litigation, “injects a new form of unfairness and uncertainty into the judicial system.” Petition at 1.
The Petition goes on to note that prohibiting race-neutral arguments on the basis that they “could” elicit racial bias “violates the fundamental due process principle that all parties have a ‘meaningful opportunity to present their case.’” Id. at 13 citing Mathews v. Eldridge, 424 U.S. 319, 333, 349 (1976). Naturally, this includes the ability “to present every available defense.” Id. citing Lindsey v. Normet, 405 U.S. 56, 66 (1972) (quoting Am. Sur. Co. v. Baldwin, 287 U.S. 156, 168, (1932)).
E. Conclusion
While eliminating racial bias in our judicial system is critical, the Washington Supreme Court in Henderson may have unintentionally limited the ability of defendants to attack the credibility of a personal injury plaintiff. It will be interesting to see how the United States Supreme Court addresses this issue, assuming it accepts review of the case.
In Henderson v. Thompson, 200 Wn.2d 417, 518 P.3d 1011 (2022), the Washington Supreme Court held that once a prima facie showing of racial bias has been made at a civil trial, the party claiming bias is entitled to an evidentiary hearing on a motion for new trial, where the burden of disproving racial bias falls on the party seeking to preserve the verdict. While the right to an impartial jury is critical to our justice system, the Court’s decision in Henderson begs the question of what arguments a defense attorney can make that will not trigger a presumption that racial bias played a role in a jury’s verdict.
B. Background Concerning Trial Court Ruling
In Henderson, Janelle Henderson, a Black woman, sued Alicia Thompson, who is White, for damage arising out of a rear-end automobile accident. Ms. Thompson conceded fault but made no offers of settlement. At trial, Thompson’s defense team attacked the credibility of Henderson and her counsel, who was also a Black woman, in a manner characterized by the Supreme Court as “call[ing] on racist tropes.” Henderson, 200 Wn.2d at 422. Specifically, Thompson’s counsel argued:
- Henderson was “combative” and “confrontational,” whereas Thompson was “intimidated and emotional”;
- The only reason for the trial was Henderson’s desire to obtain a financial windfall given her request for a $3.5 million damage award;
- Henderson’s lay witnesses (friends and family who were also Black) were “inherently biased” and colluded to offer similar testimony as evidenced by their common description of Thompson as the “life of the party”; and
- There may have been impropriety in the relationship between Henderson and her testifying chiropractor due to the fact Henderson was hired to work for the chiropractor.
Despite Henderson’s request that the jury return a significant verdict, the jury returned a verdict in favor of Henderson for only $9,200, lower than the verdict suggested by Thompson. After the verdict, Henderson was asked to leave the courtroom before the jury exited the jury room.
Henderson filed a CR 59 motion for a new trial or, in the alternative, for additur seeking an award of $60,000 (the amount defense counsel stated in closing argument would be reasonable if the jury found that Henderson was injured in the accident and found that her Tourette’s syndrome was aggravated as a result). Henderson’s counsel argued that defense counsel’s “biased statements in closing likely influenced the jury's unconscious bias against plaintiff such that justice was not done.” Id. at 428. She also noted that the jury returned a verdict far below the figure defense counsel had suggested as well as the fact Henderson was requested to leave the courtroom as evidence that the defense’s appeals to racial bias affected the verdict.
The trial court denied Henderson’s motion without allowing an evidentiary hearing. In part, the judge commented it was “her own regular practice to ask parties to leave the courtroom before the jury returned after a verdict and not a request by the jury.” Id. at 428-49. The court also commented that 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.” Id. at 422 (citation omitted).
C. The Washington Supreme Court’s Reversal
The Supreme Court reversed the trial court ruling, relying heavily on its recent opinion in a criminal matter, State v. Berhe, 193 Wn.2d 647, 444 P.3d 1172 (2019). In Berhe, the Court held that when a criminal defendant seeks a new trial based upon racial bias, and the defendant makes a prima facie showing that an “objective observer” could view race as a factor in the verdict, the trial court must hold an evidentiary hearing. Id. at 665. The Court defined an “objective observer” as “one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced verdicts in Washington state.” Id.
In applying the Berhe test in civil cases, the Court noted that “[c]ivil and criminal litigants are equally entitled to a trial by an unbiased jury.” Henderson, 200 Wn.2d at 434. Therefore, Thompson merely needed to demonstrate that an objective observer “could” view race as a factor in the verdict. Id. at 435. The Court opined that Thompson had made such a showing and, thus, the trial court had erred in denying an evidentiary hearing. The Court noted an “objective observer could conclude that the themes and arguments advanced by defense counsel suggested Henderson and her witnesses were not credible because of their race and considering the totality of the circumstances of this trial, an objective observer could therefore conclude that racism affected the verdict.” Id. at 439.
Henderson is notable in that once a party establishes a prima facie case of racial bias, the court must presume racism was a factor in the verdict. This shifts the burden to the party asking the Court to uphold the verdict to prove it was not. Given the difficulty of proving a negative, it is questionable whether parties, and specifically in our case defendants, will be able to overcome the presumption that racial bias affected the verdict once bias has been established.
Concerning to the defense bar is that the arguments employed by Thompson’s counsel appear to be race-neutral and of the sort that are routine in trials where the defense seeks to attack a witness’s credibility. For instance, the argument that Henderson was merely seeking a financial windfall could apply equally to litigants of all racial backgrounds. However, the Court was highly critical of these statements as well as the defense argument that Henderson was exaggerating or fabricating her injuries, claiming it “appealed to . . . negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.” Henderson, 200 Wn.2d at 437.
The Court was also critical of the defense argument that Henderson’s lay witnesses colluded. The Court went as far as comparing these statements to prosecutorial misconduct found in another Supreme Court case, State v. Monday, 171 Wn.2d 667, 678-79, 257 P.3d 551 (2011). In Monday, the prosecutor argued that Black witnesses were unreliable because there was a “code” that “[B]lack folk don't testify against [B]lack folk.” Id. at 676. Contrary to the defense argument in Henderson that the plaintiff witnesses colluded due to their shared description of Henderson as the “life of the party,” there was no evidence in the record to support the prosecutor’s argument in Monday, thus supporting the prosecutor’s remarks constituted an “attempt to discount several witnesses’ testimony on the basis of race alone.” Id. at 678. This distinction was disregarded by the Court in Henderson – albeit, Justice Sheryl Gordon McCloud authored a concurring opinion raising this issue.
D. Petition for Writ of Certiorari to the U.S. Supreme Court
On March 1, 2023, Thompson filed a Petition for Writ of Certiorari to the United States Supreme Court. The U.S. Chamber of Commerce and American Tort Reform Association filed an amicus brief in support of Thompson’s Petition.
Both the Petition and amicus brief raise valid concerns regarding the Henderson ruling, such as whether the Washington Supreme Court’s implicit bias standard violates the Due Process Clause and/or the Equal Protection Clause. For example, Thompson’s Petition argues the Washington Supreme Court’s decision, while seeking to minimize racial bias in civil litigation, “injects a new form of unfairness and uncertainty into the judicial system.” Petition at 1.
The Petition goes on to note that prohibiting race-neutral arguments on the basis that they “could” elicit racial bias “violates the fundamental due process principle that all parties have a ‘meaningful opportunity to present their case.’” Id. at 13 citing Mathews v. Eldridge, 424 U.S. 319, 333, 349 (1976). Naturally, this includes the ability “to present every available defense.” Id. citing Lindsey v. Normet, 405 U.S. 56, 66 (1972) (quoting Am. Sur. Co. v. Baldwin, 287 U.S. 156, 168, (1932)).
E. Conclusion
While eliminating racial bias in our judicial system is critical, the Washington Supreme Court in Henderson may have unintentionally limited the ability of defendants to attack the credibility of a personal injury plaintiff. It will be interesting to see how the United States Supreme Court addresses this issue, assuming it accepts review of the case.