Racist Tropes

A trial involving an automobile accident between a black woman and an at-fault white woman drew a strong rebuke and remand from the Washington State Supreme Court for appeals to racial bias

During the trial, Thompson’s defense team attacked the credibility of Henderson and her counsel—also a Black woman—in language that called on racist tropes and suggested impropriety between Henderson and her Black witnesses. The jury returned a verdict of only $9,200 for Henderson. Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” 1 Clerk’s Papers (CP) at 180-81.

That reasoning gets it exactly backward. In ruling on a motion for a new civil trial, “[t]he ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” State v. Berhe, 193 Wn.2d 657, 665, 444 P.3d 1172 (2019). A trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation. At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor. If that burden is not met, the court must conclude that substantial justice has not been done and order a new trial. CR 59(a)(9). Here, the trial court abused its discretion by failing to grant an evidentiary hearing and also by failing to impose any sanctions for Thompson’s discovery violations. We reverse and remand for further proceedings consistent with the framework we announce today.

The participants

Henderson’s lead trial counsel was a Black woman; Thompson’s was a white woman. The judge was a white woman, and there were no Black jurors. The only Black people in the courtroom were Henderson, her attorney, and her lay witnesses.

Appeals to bias

Henderson alleges that Thompson’s counsel primed the jurors with appeals to racial bias throughout the trial. Henderson points to numerous instances that permit an inference that an objective observer could conclude race was a factor in the verdict. Berhe, 193 Wn.2d at 666. For example, defense counsel repeatedly characterized Henderson as “combative” and “confrontational.” These terms evoke the harmful stereotype of an “angry Black woman.” See Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman, 102 IOWA L. REV. 2017, 2049 (2017). This harmful negative stereotype affects the way others perceive and interact with Black women, and it can have significant negative social and interpersonal consequences for Black women, including influencing their experience and reasonable expression of anger.

Credibility

Additionally, defense counsel relied on racist stereotypes about Black people and us-versus-them descriptions to undermine the credibility of Henderson and her witnesses. For example, defense counsel suggested that Henderson had probably asked her friends and family to lie for her, as evidenced by their shared use of a popular idiom—“life of the party”—to describe her.

Justice McCloud concurred but would find the “life of the party” argument permissible. (Mike Frisch)