The Washington State Supreme Court ruled this fall that in cases where a party to a civil lawsuit claims on appeal that the opposing attorneys engaged in any form of racial profiling or stereotyping, they must be granted a new trial.
Justice Raquel Montoya-Lewis wrote in a unanimous opinion that the burden lies with opposing parties to prove they did not say or do anything to play on a jury’s “unconscious biases.” Without that sort of proof, appellate courts must grant a new trial. Expert trial lawyers say it is all but impossible to prove what is required by the ruling.
Washington State's Supreme Court used Critical Race Theory to undermine due process, in its October 20 decision in Henderson v. Thompson:https://t.co/MLngTc9953#CRT #criticalracetheory #civilrights #racism #discrimination #progressive #antiracist #antiracism
— Hans_Bader (@HansFBader) November 5, 2022
George Mason University Constitutional Law professor David Bernstein said, “This decision is batsh— crazy.”
The ruling came from a case in which a black female plaintiff, Janelle Henderson, sought up to $3.5 million in damages after a car crash involving a white female defendant, Alicia Thompson. The defense lawyers argued to the jury at trial that Henderson was “combative” and had exaggerated her injuries to secure a more significant verdict.
The jury only awarded Henderson $9,200. Her attorney filed a motion for a new trial, arguing that the defense lawyers had made “biased statements” against her that “influenced the jury’s unconscious bias.”
The case made its way up to the Washington Supreme Court, which agreed with Henderson’s argument. The ruling stated the defendant’s lawyers had played upon the “harmful stereotype of an ‘angry Black woman.'” The court also found the lawyers had “alluded to racist stereotypes about Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall.”
New York City defense attorney Scott Greenfield said of the decision, “I don’t know how anyone could prove this negative.”
“It completely negates the entirety of American jurisprudence,” he added.
American civil law traditionally requires that a plaintiff bringing a claim in court bears the burden of proving their allegations by a preponderance of the evidence. That means plaintiffs must present evidence to show what they claim is at least more likely true than not.
The Washington Supreme Court has turned that standard of evidence back on itself, now forcing the winning party at trial to prove after the fact that they did not do anything that violates taboos against “evoking racial stereotypes.”
While the state legislature could pass a law overruling the evidence standard laid down by the court, such action is improbable in the Democratic stronghold.