by Douglas Ankney

In these consolidated cases, the Supreme Court of Washington overruled State v. Townsend, 15 P.3d 145 (Wash. 2001), and affirmed, albeit on different grounds, the decision of the Court of Appeals reversing the felony-murder convictions of Michael Bienhoff and Karl Pierce.

Before Washington legalized the cultivation and distribution of marijuana, Bienhoff and Pierce met with Precious Reed to buy and sell marijuana. Reed was killed in an ensuing gunfight, and the other two men were charged with felony murder predicated on robbery. At the time of the crime, the men could’ve been subjected to the death penalty had they been charged with first-degree aggravated murder, but the State chose not to seek the death penalty. During voir dire, Juror #1 asked: “Is there a death sentence thing in the state of Washington? That might bother me.” The trial judge answered: “The Washington Supreme Court has said that I can’t tell you whether a death sentence is involved or not.”

The prosecutor then asked all the jurors if not knowing whether the death penalty was a possible outcome caused the jurors any concerns. Ten jurors expressed concerns about sitting on a possible death-penalty case. One of the jurors, #76, stated the idea of sending someone to prison for a long period of time or to death weighed so heavily on her that she couldn’t eat her lunch. And Juror #6, the only African American in the jury pool, expressed she would not want to penalize someone with death whether or not she knew it beforehand.

The State moved to strike for cause Jurors #6 and #76. The court overruled the motion as to Juror #6 but granted it as to Juror #76 due to her emotional reaction to the idea of sitting on a death-penalty case. The State used a peremptory strike to eliminate Juror #6. The defense challenged the peremptory strike as a violation of Batson v. Kentucky, 476 U.S. 79 (1986), and the trial court ruled against the defense.

The jury ultimately convicted both men of first-degree murder. The Court of Appeals reversed, concluding the prosecutor committed misconduct by eliciting a discussion with the jurors on the death penalty. The Washington Supreme Court consolidated the cases and granted the State’s petition for further review.

The Court observed that “[t]he jurisprudential landscape has changed in two relevant ways since this case was tried. First, at the time of trial, it was error to tell the potential jurors during jury selection that they were not being asked to sit on a death penalty case [pursuant to Townsend].... Second, in the wake of increasing evidence that the Batson rule did not adequately protect our jury selection process from (often unconscious) racial bias, we promulgated GR 37 [which states, in part, if ‘an objective observer could view race or ethnicity as a factor in the use of a peremptory challenge, then the peremptory challenge must be denied’].”

As a result of the prosecutor’s comments, the jurors’ minds were drawn to the possibility of a death sentence, which could have unfairly influenced their deliberations in violation of Townsend. But a major basis for the Townsend rule had eroded: There was no longer a lawful death penalty statute in Washington. State v. Gregory, 427 P.3d 621 (Wash. 2018). Continuing to follow Townsend could undermine public confidence in the integrity of the judiciary because informed jurors may become mistrustful due to knowing there is no death penalty in the State of Washington.

The Court further found fault with Townsend because it failed to recognize that death is different. Furman v. Georgia, 408 U.S. 238 (1972). Courts across the country have overwhelmingly approved of telling prospective jurors when the death penalty is at stake, including Arizona, Arkansas, California, Georgia, Indiana, Montana, New Mexico, and Pennsylvania. Townsend’s requirements that jurors not be informed of whether or not the death penalty is on the table put undue pressure on them that, as this case illustrates, resulted in dismissal of jurors even when the State was not seeking the death penalty.

Furthermore, research has shown that juries selected in capital cases had the distorting effect of disproportionately disqualifying racial minorities. Racial Exclusion and Death Penalty Juries: Can Death Penalty Juries Ever Be Representative? 27 Kan. J.L. & PUB. POL’Y 147 (2018). For these reasons, the Court overruled Townsend. However, the Court prospectively applied GR 37 and determined that an objective observer could have concluded that race was a factor in the State’s peremptory strike of Juror #6. Therefore, the peremptory challenge should have been denied.

Accordingly, the Court affirmed the result of the decision of the Court of Appeals and remanded to the trial court for further proceedings consistent with the Court’s opinion. See: State v. Pierce, 2020 Wash. LEXIS 1 (2020). 

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