‘Batsh—t Crazy’: Washington State Supreme Court Says Any Accusation of Racial Bias Should Lead to a Retrial

If a party to a civil lawsuit accuses his opponent’s lawyers of any sort of racial stereotyping, judges must order a retrial. That appears to be the implication of an October ruling from the Washington State Supreme Court.

When litigants claim that racial bias affected a trial verdict, state justice Raquel Montoya-Lewis wrote in a unanimous opinion, the opposing party “must prove how it did not,” demonstrating that nothing said at trial played on the jury’s “unconscious biases.” Absent such proof—which lawyers say will be impossible to furnish—courts must grant a new trial, the opinion indicates.

Lawyers and legal scholars are aghast, arguing that the decision undermines bedrock principles of the American justice system.

“This decision is batshit crazy,” said David Bernstein, a professor of constitutional law at George Mason University.

The ruling came after a black woman, Janelle Henderson, demanded $3.5 million in damages from a white defendant, Alicia Thompson, who had rear-ended her. At the trial, which took place in 2019, Thompson’s lawyers described Henderson as “combative,” suggested she had coached her witnesses, and accused her of exaggerating her injuries for financial gain.

When the jury only awarded Henderson $9,200—not the millions she’d sued for—she filed a motion for a new trial, claiming that the defense’s “biased statements” had “influenced the jury’s unconscious bias.”

The Washington Supreme Court agreed. By calling Henderson “combative,” Montoya-Lewis wrote, the defense evoked “the harmful stereotype of an ‘angry Black woman.'” And by suggesting that she had coached her witnesses, it “alluded to racist stereotypes about Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall.”

The case has since been sent back to a trial court, which will consider Henderson’s motion for a retrial in light of the new standard.

While Montoya-Lewis called the verdict a step toward “greater justice,” lawyers see it as a Kafkaesque assault on the most basic norms of due process. “I don’t know how anyone could prove this negative,” said Scott Greenfield, a defense attorney in New York City, referring to the burden the verdict places on the accused to show that bias played no role in the proceedings. “It completely negates the entirety of American jurisprudence.”

In almost every legal dispute, from criminal lawsuits to civil rights cases, it is the accusers who bear the ultimate burden of proof. To meet it, they must demonstrate that their claims are at least

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