By Dr. Robert S. Chang
For Northwest Asian Weekly
Racism has often infected the administration of justice.
Slavery was maintained, segregation was upheld, and Japanese internment was defended.
In each of these circumstances, pivotal cases eventually changed the face of the legal system and helped to remedy injustice. This, however, was only the beginning of the fight against discrimination.
Today, the courts must address a less noticeable form of injustice within the legal system: the presence of racial bias within the jury room.
In a potentially groundbreaking case, Turner v. Stime, the Washington Court of Appeals must determine for the first time whether jurors’ use of racially derogatory remarks about a litigant’s attorney constitutes jury misconduct and justifies granting a new trial.
Turner was a medical malpractice case heard in Spokane County in late 2007. After the jury returned a verdict for the defendants, two jurors came forward and informed the disparaged plaintiffs’ attorney of racially charged comments that had been made by other jurors. A number of jurors had repeatedly made fun of the plaintiffs’ attorney’s Japanese name, and on the day that the verdict was handed down, one juror even stated that such ridicule was “almost appropriate” because it was Pearl Harbor Day.
A new trial was granted after the court found there was a possibility that these remarks improperly influenced the jury. The defendants have appealed that decision.
The trial court’s decision to grant a new trial upholds the view that racism should not be tolerated in the American justice system. Disparaging a lawyer’s ethnic name, even under the guise of humor, diminishes the jury’s ability to view the lawyer as a credible representative with credible arguments. Racism has long been masked under the pretenses of “innocent humor.”
The decision by the Court of Appeals to affirm or reverse the grant of a new trial will be a testament to how ready the justice system is to eradicate racial bias from the courtroom. The decision will be significant, and people will take notice.
Partnering with leading bar associations, the Korematsu Center for Law and Equality, at the Seattle University School of Law, submitted a brief as a friend of the court — called an amicus brief — supporting the trial court’s granting of a new trial. The brief brings three significant issues to the court’s attention. First, a long and unfortunate history of discrimination against Japanese Americans and Asian Americans provides a context for the remarks. Second, social science literature about the nature and effect of prejudicial remarks demonstrates how bias directed against an attorney negatively affects the jury’s decision-making process. Third, allowing such remarks would negatively impact diversity in the legal profession because clients and firms might think twice before hiring minority attorneys.
We think it vital to add our voice in this matter that might have a strong negative impact on minority attorneys and on minority communities. If jurors can express bias with courts impotent to provide a remedy, we would be taking a few steps backwards in our quest to achieve racial equality.
Oral arguments were set for Oct. 13 in Division III of the Washington Court of Appeals. ♦
For more information, visit www.law.seattleu.edu or e-mail firstname.lastname@example.org. Robert S. Chang is a professor of law and director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law.
He can be reached at email@example.com.