Nigel Sinclair Hogan Sr was convicted by jury trial of Murder in the Second Degree. On appeal he claimed reversible error by the State’s use of a “peremptory” (“for no stated reason”) challenge to a potential jury. Hogan’s attorney, during jury selection, raised a General Rule 37 (‘GR 37’) objection to the State’s use of a peremptory on a 20-year-old caucasian who identified ‘gender’ on the juror questionnaire as “prefer not to answer”. The Defense objection, in its entirety, was:
Defense would like to raise a GR 37 argument to that. This individual is one of the only trans persons on the jury. In the entire panel.
The Court asked for a State response to the GR 37 challenge. *(printed below in its entirety)
Counsel is making some assumptions…probably appearance and ‘prefer not to answer’ that the person is transgender. I don’t think you can possibly say that you know if anyone else on this panel is or is not transgender…I don’t think you can just go on appearance alone.
The State then explained their basis for peremptory.
…This did not seem like someone from the State’s perspective that was going to be able…to take a position and stand up to it and communicate with other jurors.
The Court then ruled on the GR 37 challenge and the State’s use of the peremptory, without seeking input from the defense or the defense providing further argument.
…they have not identified as transgender. It was not apparent to me they were transgender, its not on the questionnaire…they have strong beliefs about when police use excessive force…they were very reticent when answering questions during voir dire…motion denied and Juror 40 struck okay.
The Division One Appellate panel recognized that gender identity is a facially improper basis for a GR 37 objection. “The purpose of GR 37 is to eliminate the unfair exclusion of potential jurors based on race or ethnicity’, quoting from State v. Jefferson, 192 Wn. 2d 225,249 (2018). “Even if Hogan had explained to the trial court how that improper basis was related to a proper basis (race and ethnicity), he has not shown that juror 40 was in fact transgender or that their gender identity implicated their views on race or ethnicity so as to establish that the State sought implicitly or explicitly to strike a juror from improper reasons. Hogan No. 84796-1-1/5. Hogan’s counsel made no further argument of any kind, including any explanation that the juror’s purported (but not claimed) gender identity related to issues of race or ethnicity. The Court quoted Merrian-Webster; “transgender is a person who gender identity differs from the sex the person was identified as having at birth”. Id 85796-1-1/6.
GR 37 does not apply to an objection based on gender discrimination. Id 84796-1-1/7.
Hogan also tried to claim an unconstitutional peremptory challenge based on gender, utilizing the ‘Batson challenge’ (Batson v. Kentucky, 477US79 (1986)). Division One held there was no showing ‘Juror 40’ was actually transgender, and it was “appropriate for the court to decline to use its governmental authority to assign a gender identity to a juror who chose not to disclose it and where gender has no apparent relevance to the case”. Id 85796-1-1/14. While Batson does extend to gender discrimination, Hogan’s challenge did not come close to the “three step analysis” outlined in Batson for a gender challenge. Id 84796-1-1/16.
The factual context here is important. Gender challenges to juror peremptory strikes are common. I anticipate that GR 37/Batson challenges to a ‘trans’ individual will continue, because trial courts stop the voir dire inquiry when GR37 or Batson is quoted. In this case, even though the Appellate court held such ana objection was “improper”, the trial judge made the State provide an explanation for using the peremptory. This is now a common trial tactic to discover the kind of juror the opposition is seeking.
*GR 37 – Jury Selection
(a) Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity. (b) Scope. This rule applies in all jury trials. (c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered. (d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons the peremptory challenge has been exercised. (e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record. (f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State. (g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following: (i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors; (iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party; (iv) whether a reason might be disproportionately associated with a race or ethnicity; and (v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases. (h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge: (i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (iv) living in a high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; and (vii) not being a native English speaker. (i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge. [Adopted effective April 24, 2018.]