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THE LEGAL BRIEF
VOLUME 41, ISSUE 1
(continued from page 4) View from the Bench by Judge Allyson Zipp
questions and comments as an appeal to potential prejudice, bias, or stereotypes. The objective observer is a person “ who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination. ” Zamora , 199 Wn.2d at 718. Most recently, in Henderson v. Thompson , __ Wn.2d __, 518 P.3d 1011 (2022), the Supreme Court addressed motions for a new civil trial. Henderson is emphatic in reiterating the holding of Berhe . Upon a motion for a new civil trial, “ courts must ascertain whether an objective observer 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. ” Henderson , 518 P.3d at 1023 (emphasis in original). Henderson explains that when a civil litigant makes a prima facie showing under the Berhe standard, a court “ must grant an evidentiary hearing to determine if a new trial is warranted. ” Id. Moreover, at the evidentiary hearing the burden of proof is on the party seeking to preserve the verdict. “ 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. ” Id. (emphasis in original). As this article ’ s very brief survey has shown, these four decisions have made significant changes to the standards governing allegations of race and ethnicity discrimination in criminal jury verdicts, law enforcement seizures, prosecutorial misconduct, and civil jury verdicts. I encourage you all to review GR 37 and to familiarize yourselves with these decisions and this developing body of law.
Best wishes for a great 2023!
Thank you to everyone who attended the fall Bench Bar meeting (in - person or on Zoom) on November 9, 2022, at Thurston County Superior Court. Thurston County Superior Court Presiding Judge, the Honorable Mary Sue Wilson, welcomed everyone and provided operational and civil updates, in addition to an update on the building 2 remodel. The Honorable Judge John Skinder provided criminal updates and the Honorable Judge Lanese provided Family & Juvenile Court updates. The Honorable Judge Schaller shared information about lawyer appointments followed by the Honorable Judge Carol Murphy and Patrick O ’ Connor providing information about the LFO. Last but not least, TCBA President, Michael Young, shared information about TCBA events and announcements.
We plan to have another Bench Bar meeting in the spring. Stay tuned for the date.
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