Pennell, C.J.

Jeffry K. Finer, KSB Litigation, 510 W. Riverside Ave. Ste. 300, Spokane, WA, 99201-0515, for Appellant.

Larry D. Steinmetz, Brett Ballock Pearce, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondents.

OPINION PUBLISHED IN PART

Pennell, C.J. ¶1 General Rule 37 of the Washington Court Rules restricts a party's ability to remove prospective jurors from a jury panel without cause. The rule was intended to reduce racial discrimination in jury selection by focusing on the danger of implicit bias. Under GR 37, a judge must deny a party's attempt to remove a juror without cause (known as a peremptory challenge) if an objective observer could view race or ethnicity as a factor in the attempted removal. Under the terms of the rule, an objective observer must be deemed aware of implicit, institutional, and unconscious bias, in addition to purposeful discrimination.

¶2 The prosecutor handling Mr. Lahman's trial exercised a peremptory challenge against a prospective juror with an Asian surname. It is undisputed that the juror was one of the few racial or ethnic minorities on the jury venire. The prosecutor explained she sought to remove the juror because he was young and inexperienced in domestic matters. The record indicates the prospective juror was 23 years old. However, the juror was never asked any questions about his experiences in domestic matters. In fact, he was not asked many questions at all. Given the limited basis from which the prosecutor could conclude the juror was inexperienced, along with the possible influence of implicit stereotyping, it is conceivable an objective observer could conclude race or ethnicity played some sort of role in the decision to strike the prospective juror from the venire. Mr. Lahman's GR 37 objection to the prosecutor's use of the peremptory challenge therefore should have been sustained.

¶3 Under our case law, the remedy for the erroneous exclusion of a juror from service on the basis of race or ethnicity is reversal and remand. We invoke this remedy, reverse Mr. Lahman's convictions, and remand for retrial.

FACTS

¶4 In December 2018, Travis Lahman was arrested for the brutal assault of his long-term girlfriend. He was charged with one count of first degree kidnapping and one count of second degree assault. The State later amended the charges to include four firearm enhancements. Mr. Lahman exercised his right to a jury trial.

¶5 Jury selection took place over two days in 2019. One of the prospective jurors on the venire was a 23-year-old man with an Asian surname (Juror 2). Juror 2 worked for Target and appeared to be one of the few racial minorities on the venire. In his answers to a written questionnaire submitted prior to voir dire, Juror 2 did not report any past experience with domestic violence. Twenty-two additional prospective jurors provided the same answer; i.e., that they had no past experience with domestic violence either personally or through a close associate.

¶6 The parties did not engage Juror 2 in much dialogue during voir dire. Other than his initial introduction, Juror 2 spoke twice. The first comments were made in response to a question posed by the prosecutor:

[THE PROSECUTOR]:

....

Is it important that you serve as members of a jury? I'm going to go to Juror No. 2.

Is it important to serve?

PROSPECTIVE JUROR NO. 2: Yes.

[THE PROSECUTOR]: And why is that?

PROSPECTIVE JUROR NO. 2: It's your civil duty.

[THE PROSECUTOR]: Civic duty.

3 Report of Proceedings (RP) (June 4, 2019) at 787. The second set of comments were made in response to questions from defense counsel:

[DEFENSE COUNSEL]:

....

If you disagree with another juror on the verdict, could you stick to your guns unless you became convinced?

Number, how about 2?

PROSPECTIVE JUROR NO. 2: Similar sentiment [to that of a previous juror ].

[DEFENSE COUNSEL]: Okay.

PROSPECTIVE JUROR NO. 2: Solid with my opinion based on the evidence and what I see.

[DEFENSE COUNSEL]: And how would you feel if you were the only one to hold your viewpoint?

PROSPECTIVE JUROR NO. 2: Probably awkward, but given the evidence, I don't think that would be likely.

[DEFENSE COUNSEL]: Okay.

But would you stick to your viewpoint unless you became convinced otherwise?

PROSPECTIVE JUROR NO. 2: Yes.

Id . at 826-27.

¶7 The State used a peremptory challenge against Juror 2, to which Mr. Lahman objected under GR 37. The State provided the following explanation to the trial court in response to the challenge:

Your Honor, with regard to [Juror 2], he is a younger juror. He did respond to the questions; however, given his age and then some of his questions, I felt that he was not going to be an acceptable juror. He—has nothing to do with this—Your Honor, he's more than [sic] his age and then I got limited answers out of him in my questioning.

1 RP (Jun. 4, 2019) at 44. The State proceeded to clarify:

He's a younger juror, works at Target. Yeah, I would generally not have a younger person sit on a case like this. They don't have life experiences and he didn't have any with [domestic violence].

Id . at 45.

¶8 The trial judge determined the basis for the State's peremptory challenge was Juror 2's age and lack of life experience. Initially the judge granted Mr. Lahman's GR 37 challenge. But the judge later relented, explaining age and lack of experience were valid race-neutral reasons for the State's peremptory challenge. Juror 2 was therefore stricken from the venire and did not serve further. The record reflects that of the 13 jurors seated on the panel, nine of them likewise did not report any experience with domestic violence. After a four-day trial, the jury found Mr. Lahman guilty as charged, including the four firearm enhancements. He was sentenced to 254 months’ imprisonment.

¶9 Mr. Lahman now appeals, arguing the trial judge improperly overruled his objection to the State's use of a peremptory challenge against Juror 2.

ANALYSIS

Peremptory challenges and the problem of discrimination

¶10 The state and federal constitutions protect the right of the criminally accused to a fair and impartial jury. U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22. Standards for juror qualification and the ability to strike jurors for cause enable the court and parties to ensure a biased juror does not sit in judgment on a particular case. See State v. Davis , 141 Wash.2d 798, 824-26, 10 P.3d 977 (2000). This is all that is constitutionally required. See Ross v. Oklahoma , 487 U.S. 81, 88, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988). Nevertheless, tradition, statutes, and court rules go further. In addition to enforcing juror qualification standards and challenges for cause, parties may use "peremptory challenges" to strike a limited number of otherwise qualified jurors from the venire for no stated reason. See RCW 4.44.130.-.140; CrR 6.4(e). The justification for peremptory strikes is that trial attorneys have instincts about which jurors will be best for their case. Peremptory challenges enable parties to rely on their instincts and experiences to select a jury that they think will be best for their case. ¶11 Not surprisingly, the use of instincts to render judgment about other people's thought processes and beliefs has historically opened the door to implicit and explicit bias. The parties and the jurors themselves have the right to a trial process free from discrimination. Powers v. Ohio , 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Judges have been assigned an important role in protecting these rights and ensuring peremptory challenges are not used in a discriminatory manner. Because "the Constitution forbids striking even a single prospective juror for a discriminatory purpose," mistakenly allowing a party to dismiss a juror for reasons of race or ethnicity requires reversal and remand for a new trial. United States v. Vasquez-Lopez , 22 F.3d 900, 902 (9th Cir. 1994) (cited with approval by Snyder v. Louisiana , 552 U.S. 472, 486, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008). This remedy applies regardless of the strength of the prosecutor's case or the hardship to victims or witnesses.

¶12 In Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court developed a three-part test for assessing whether a peremptory challenge was based on improper discrimination. First, the party objecting to the challenge had to establish a prima facie case giving rise to an inference of discriminatory purpose. Id . at 92-93, 106 S. Ct. 1712. If this was met, the burden shifted to the party asserting the challenge to provide a neutral explanation. Id . at 97, 106 S. Ct. 1712. If this was accomplished, the judge had to decide whether the objecting party "established purposeful discrimination." Id . at 98, 106 S. Ct. 1712.

¶13 Batson ’s requirement of proving purposeful discrimination has been problematic. State v. Saintcalle , 178 Wash.2d 34, 53, 309 P.3d 326 (2013) (plurality opinion), abrogated on other grounds by City of Seattle v. Erickson , 188 Wash.2d 721, 398 P.3d 1124 (2017). Intent is difficult to prove and judges may be loath to ascribe invidious motives to an attorney who regularly practices in their court. Id. In addition, harmful discrimination is often not purposeful in the ordinary sense. Id. at 46, 309 P.3d 326. Most Americans condemn overt acts of racism. Yet the plague of racism persists. The problem is not so much a conscious desire to discriminate. Id. at 48, 309 P.3d 326. It is that negative stereotypes and assumptions operate on a subconscious level and lead people to make discriminatory decisions without any sort of purposeful plan or deliberation. Id . at 46, 309 P.3d 326 ("Racism now lives not in the open but beneath the surface—in our institutions and our subconscious thought processes—because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus.").

GR 37 as a method of addressing discrimination in peremptory challenges

¶14 In 2018, the Supreme Court of Washington adopted GR 37 to address unconscious bias and the difficulties in meeting Batson ’s three-part test. See State v. Jefferson , 192 Wash.2d 225, 243, 429 P.3d 467 (2018) (plurality opinion). Under GR 37(c), a party or the court "may object to the use of a peremptory challenge to raise the issue of improper bias." Once an objection is raised, the party exercising the challenge is obliged to articulate the reasons for the challenge. GR 37(d). The court must then evaluate the reasons given for the challenge, taking into account the totality of the circumstances. GR 37(e). "If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied." Id . (emphasis added). For purposes of this rule, an "objective observer" is one who "is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State." GR 37(f).

¶15 GR 37 provides a guided process for how to assess the issue of bias and peremptory challenges. The rule lists five nonexclusive circumstances relevant to assessing the nature of a peremptory challenge. GR 37(g). The rule also specifies seven presumptively invalid justifications for peremptory challenges. GR 37(h). Finally, the rule identifies juror conduct (e.g., juror inattentiveness, body language, or demeanor) as suspect justification for a peremptory challenge. GR 37(i). If a party intends to offer juror conduct as a justification for a peremptory challenge, the party must provide timely notice so the juror's behavior can be "verified and addressed in a timely manner." Id .

Application of GR 37 to Mr. Lahman's case

¶16 Mr. Lahman argues Juror 2 was improperly stricken from his jury in violation of GR 37. Because the GR 37 analysis is purely objective, this claim is one we review de novo. State v. Listoe , 15 Wash. App. 2d 308, 321, 475 P.3d 534 (2020) ; State v. Omar , 12 Wash. App. 2d 747, 750-51, 460 P.3d 225, review denied , 196 Wash.2d 1016, 475 P.3d 164 (2020).

¶17 The first step in the GR 37 process is for a party or the court to raise the issue of improper bias on the basis of race or ethnicity. GR 37(a), (c). Here, Mr. Lahman claims the prosecutor was biased in striking Juror 2, a racial or ethnic minority, from the venire. As an appellate court, we are unable to physically observe any juror's appearance. In some circumstances, this might hamper our de novo GR 37 analysis. See Listoe , 15 Wash. App. 2d at 331-32, 475 P.3d 534 (Melnick, J. concurring). But here, Juror 2 has an Asian surname. This circumstance is enough to raise the concern that an objective observer could perceive Juror 2 as a racial or ethnic minority.

¶18 Because Mr. Lahman has objected to the use of a peremptory challenge against an individual who appears to be a member of a racial or ethnic minority, we proceed to the second part of the GR 37 analysis. Under GR 37(d), the party exercising the peremptory challenge must provide a race-neutral justification. Here, the prosecutor claimed to strike Juror 2 based on his young age and lack of experience with domestic violence and limited life experience.

¶19 The third step of the GR 37 analysis is to evaluate the justification given for the peremptory challenge. Our assessment is guided by the nonexclusive circumstances set forth in GR 37(g). We also must keep in mind that the test is whether an objective observer, aware of implicit, institutional, and unconscious biases, "could view race or ethnicity as a factor in the use of the peremptory challenge." GR 37(e) (emphasis added).

¶20 The first three circumstances we look to are how the prospective juror was questioned and whether there were differences between the challenged juror and other members of the venire. GR 37(g)(i)-(iii). Juror 2 was not questioned about his life experiences. In fact, the prosecutor posed very few questions to Juror 2, thus depriving Juror 2 of a realistic opportunity to explain himself and his circumstances. GR 37(g)(i). Juror 2 did state on his questionnaire that he did not have any prior experiences with domestic violence. However, 22 other members of the venire provided the same answer. It appears that nine of the individuals who sat on Mr. Lahman's petit jury answered the juror questionnaire in the same way as Juror 2; i.e., they also did not have past experience with domestic violence. The prosecutor's limited interactions with Juror 2 fail to reveal whether he truly stood out from other jurors in terms of his age or other experiences. GR 37(g)(iii).

¶21 The next circumstance we consider asks whether the reason stated for the challenge might be disproportionately associated with race or ethnicity. GR 37(g)(iv). Here, stereotyping can come into play. A stereotype is a trait imposed on a group of people based on a shared characteristic such as race or ethnicity. Reliance on a stereotype may seem positive, negative, or benign. Regardless, stereotyping is harmful and can have an improper disparate impact. Research shows that a common stereotype of Asian Americans is that they are strong in academics, to the detriment of interpersonal skills. In explaining why Juror 2 was preemptively struck from the venire, the prosecutor focused on Juror 2's youth and lack of life experiences. While Juror 2's age may have prompted much of the prosecutor's concerns, there was little else to support the prosecutor's assessment of Juror 2. Instead, the record left open the possibility that the prosecution implicitly and unsuitably relied on a stereotype in deciding Juror 2, an Asian American, lacked the frame of mind to side with the State.

¶22 The last of the circumstances we consider focuses on a party's use of peremptory challenges in the present case or past cases. GR 37(g)(v). The record on review is insufficient to allow us to analyze this factor.

¶23 On balance, the State's explanation for why it struck Juror 2 is insufficient to dispel the concern that "an objective observer could view race or ethnicity as a factor" in Juror 2's exclusion from the jury pool. GR 37(e) (emphasis added). Juror 2's statements during voir dire did not differ markedly from those of other prospective jurors. The prosecutor received limited information from Juror 2 largely due to the fact that Juror 2 was asked few questions. The prosecutor's focus on Juror 2's youth and lack of life experiences played into at least some improper stereotypes about Asian Americans, particularly given the lack of any record about the relative ages of other jurors.

¶24 Our assessment of this case does not mean the prosecutor's decision to strike Juror 2 was in fact driven by improper discrimination, purposeful or not. GR 37 was written in terms of possibilities, not actualities. The rule recognizes the trial process must be free from the appearance of discrimination, regardless of actual motives or intent. The switch from Batson ’s focus on purposeful discrimination to GR 37 ’s emphasis on the objective possibility of discrimination is significant. The exercise of peremptory challenges is a privilege, not a constitutional right. GR 37 teaches that peremptory strikes exercised against prospective jurors who appear to be members of racial or ethnic minority groups must be treated with skepticism and considerable caution. ¶25 We recognize that GR 37 is a new rule and appellate decisions interpreting the rule postdate Mr. Lahman's trial. The trial court understandably struggled with application of the rule to Mr. Lahman's case. Nevertheless, our de novo standard of review does not allow deference to the trial court's decision. We disagree with the trial court's assessment of Mr. Lahman's GR 37 objection, as set forth above. The GR 37 objection should have been sustained. The applicable remedy is to reverse Mr. Lahman's convictions without prejudice and remand for a new trial.

¶26 The panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR:

Fearing, J.

Staab, J.