State v. Saintcalle

Decision Date01 August 2013
Docket NumberNo. 86257–5.,86257–5.
Citation178 Wash.2d 34,309 P.3d 326
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Kirk Ricardo SAINTCALLE, Petitioner.


Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

Dennis John McCurdy, King County Prosecutor's Office, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, for Respondent.


[178 Wash.2d 35]¶ 1 This appeal raises important questions about race discrimination in our criminal justice system. Kirk Saintcalle, a black man, challenges his conviction for first degree felony murder because the State used a peremptory challenge to strike the only black venireperson in his jury pool. Saintcalle claims the peremptory strike was clearly racially motivated in violation of the equal protection guaranty enshrined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree. Batson requires a finding of purposeful discrimination, and the trial court's finding that there was no purposeful discrimination here is not clearly erroneous. Accordingly, we affirm Saintcalle's conviction.

¶ 2 However, we also take this opportunity to examine whether our Batson procedures are robust enough to effectively combat race discrimination in the selection of juries. We conclude that they are not. Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.

¶ 3 But we will not create a new standard in this case because the issue has not been raised, briefed, or argued, and indeed, the parties are not seeking to advance a new standard. Applying Batson, we affirm the Court of Appeals.


¶ 4 Kirk Saintcalle was convicted of one count of first degree felony murder and three counts of second degree assault, all with firearm enhancements. Saintcalle was accused of entering an apartment in the city of Auburn with two companions, holding three people at gunpoint, and shooting and killing Anthony Johnson. Saintcalle was sentenced to 579 months in prison.

¶ 5 During jury selection at Saintcalle's trial, the prosecution used a peremptory challenge to strike the only black juror in the venire, juror 34, Anna Tolson. This challenge came after the prosecution questioned juror 34 extensively during voir dire—far more extensively than any other juror. Indeed, most of the prosecution's interactions with jurors were quite brief, usually consisting of only a few short questions, but not the interaction with juror 34. The State began questioning juror 34 after another juror made a comment about race:

[JUROR 72]: I feel there are some areas of unfairness in our system. I am aware, for example, that a jury of their peers [sic], yet as you look around this panel, all of the faces are white.

[JUROR 34]: No, not quite.


[PROSECUTOR]: You know what, you kind of bring a very important topic to light. If you were seated here in this chair and you looked out at this panel, would you have any concern about whether or not people are going to be able to relate to you or listen to you or feel for you? Juror number—What is your number? Juror number 34, I am going to ask you a little bit about your background. You work at the YMCA?

[JUROR 34]: I work in a middle school.

[PROSECUTOR]: So tell me how that works. So you are a counselor?

[JUROR 34]: Yes.

[PROSECUTOR]: Which means you see a whole lot.

[JUROR 34]: Yes.

[PROSECUTOR]: And where do you work? What school do you work in?

[JUROR 34]: Do I really need to say that?

[PROSECUTOR]: How about you just tell me the city. Is it an inner city school?

[JUROR 34]: Yes.

[PROSECUTOR]: You see a whole lot?

[JUROR 34]: Yes.

[PROSECUTOR]: I am interested to hear from you—I mean, do you have impressions about the criminal justice system?

[JUROR 34]: Yes.

[PROSECUTOR]: You are not going to hurt my feelings if you talk about them a little bit. What are your thoughts?

[JUROR 34]: Gosh, I feel like I am on the spot here.

But being a person of color, I have a lot of thoughts about the criminal system. I see—I have seen firsthand—and a couple people have already mentioned that if you have money, you tend to seem to work the system and get over. And regardless if you are innocent or guilty, if you want to be innocent, your money says you are innocent.

And a person of color, even if you do have an affluent lawyer who has the background, the finance to get you off, because you are a person of color, a lot of times you are not going to get that same kind of opportunities.

And especially with this person being a person of color and being a male, I am concerned about, you know, the different stereotypes. Even if we haven't heard anything about this case, we watch the news every night. We see how people of color, especially young men, are portrayed in the news. We never hardly ever see anyone of color doing something positive, doing something good in their community.

So kind of like what the person behind me is saying, since most of the people in this room are white, I am wondering what's running through their mind as they see this young man sitting up here.

[PROSECUTOR]: Right. How about for you, do you think—I mean, you've got a whole lot that you are feeling as you sit here and that you are going to be asked to sit in judgment of somebody. How do you think you are going to be able to handle that?

[JUROR 34]: I think number one, because I am a Christian, I know I can listen to the facts and, you know, follow the judge's instruction. But also it's kind of hard, and I haven't mentioned this before because none of those questions have come up for me to answer, but I lost a friend two weeks ago to a murder, so it's kind of difficult sitting here. Even though I don't know the facts of this particular case, and I would like to think that I can be fair because I am a Christian, I did lose someone two weeks ago.

[PROSECUTOR]: Was that in Seattle?

[JUROR 34]: Yes.

[PROSECUTOR]: Was that [the] Tyrone case?

[JUROR 34]: Yes.

Report of Proceedings (RP) (Mar. 9, 2009) at 65–68. After a stretch break, the prosecutor resumed questioning juror 34:

[PROSECUTOR]: Juror number 34, I am going to move on to the group, but I wanted to close the loop with you. You have a lot that is going through your mind currently both that would give you a lot of empathy for someone who is charged with a crime and also empathy for someone who may be a victim of a crime. In that way, you may be representative of the perfect juror.

At the same time, we don't put people in a position where it's going to cause them a lot of emotional pain. At this point do you think you could sit in this case and listen to the facts and make a decision based solely on the evidence presented in trial here and be fair to both sides?

[JUROR 34]: I'd like to think that I could be, but kind of what you just mentioned just with the freshness and the rawness of the death of a friend, I am wondering if that would kind of go through my mind. I like to think that I am fair and can listen, be impartial, but I don't know. I have never been on a murder trial and have just lost a friend two weeks prior to a murder.

[PROSECUTOR]: What I am going to do, I am going to ask questions. I am going to kind of move on to the rest of the group so that you have time to think, and then we'll come back and ask you maybe tomorrow to make your final decision about whether or not you think you can be fair. I am sorry for your loss.

Id. at 69–70. The next day, a different deputy prosecuting attorney followed up with juror 34:

[PROSECUTOR]: Go back to [a] couple [of] people juror number 34 sorry [to] focus on you again after yesterday but I just want to try and go back [and] touch base with you. I know[ ] you mentioned yesterday that you had some recent events in your life that may make it difficult for you to serve as jurors [sic] in [this case]. Have you done anymore thinking about that? How are you feeling today?

[JUROR 34]: Yes. I thought about it last night as well as this morning. And, you know, my thought is I don't want to be a part of this jury because of the situations, and the circumstances that I just went through. But I'm thinking if ever I was put in a situation where I needed twelve people who could be honest and look through all the facts or I guess I'm saying who could be like me I would want me. So sometimes you have to do things that you don't want to do.

[PROSECUTOR]: I guess my only concern is do you feel like maybe some of the emotions that dredge up could cloud your judgment at all on either side. Either you know against the defendant, against the State or I'm just concerned about that particular issue?

[Court inquires whether juror 34 would like to answer the question in private, but juror 34 declines.]

[PROSECUTOR]: So is that something you can set aside or worried at all about the emotions kind of clouding in? I mean, it's just so new in terms of your life?

[JUROR 34]: I mean, I have never been in this situation where I have lost someone. You just went to the funeral. He is young. Only 24. And to be called to jury duty to perhaps be on a jury of a murder suspect. I don't know how I'm going to react. You know, I don't know. I'm—I'm not an emotional person, but I'm thinking as we go through it, and I hear the testimony, and I see the pictures, I don't know. I mean, I'm just being honest. I don't know how I'm going to feel.

RP(Mar. 10, 2009) at 41–43.

¶ 6 After this exchange, the prosecution challenged juror 34 for cause. The judge denied the challenge, and the prosecution announced its intent to exercise a peremptory strike. At that point, Saintcalle...

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