SEATTLE — A 65-year-old Black man will get a new trial after the Washington Supreme Court ruled that prosecutors discriminated against him by striking the last Black person from his jury pool nearly 20 years ago.
Theodore Rhone argued before his 2005 trial that the state’s exclusion of the last Black potential juror without reason was discriminatory. He appealed the case, which the state Supreme Court ultimately denied in 2010 by a vote of 5-4.
But in the years since, the state’s high court has taken steps to rectify a national history of racism and the persistence of implicit bias in jury selection.
The unanimous decision, issued Thursday, marks another step toward the court’s effort, said Rhone’s attorney Lise Ellner.
“They are keeping their promise and commitment to eliminating racial discrimination in the justice system,” Ellner said of the state Supreme Court justices.
For Rhone, the decision means a fresh start. Speaking from the Stafford Creek Corrections Center on Thursday, he said he’s a different man from the one convicted in 2005.
“My life prior to this, I didn’t know about God, what it meant to be a man,” he said. “I’m 65 years old today, and it’s like, ‘OK, I get it.’ It’s a shame I had to go through so much to get life, but I get it.”
Rhone was tried in Pierce County Superior Court on charges of first-degree robbery, unlawful possession of a controlled substance with intent to deliver, first-degree unlawful possession of a firearm and bail jumping.
During jury selection, prosecutors and defense attorneys agreed to eliminate one of two Black potential jurors from the 41-member pool for a specific cause. Then prosecutors struck the other person from the jury pool without explanation.
Sadarah Rhone, Rhone’s wife, recalled being frustrated and angry as she stood outside the courtroom and watched the potential jurors get turned away.
“I was not happy with that, and I talked with my husband because it’s not fair,” she said Thursday. “At the time I knew it wasn’t fair. I knew that justice wouldn’t prevail.”
Theodore Rhone requested a new jury before the trial began.
“I don’t mean to be facetious or disrespectful or a burden to the court,” he told the judge at the time. “However, I do want a jury of my peers. And I notice that [the prosecutor] took away the Black, African-American, man off the jury.
“I would like to have someone that represents my culture as well as your culture. To have this the way it is to me seems unfair to me. It’s not a jury of my peers,” he continued. “I am an African-American Black male, 48 years old. I would like someone of culture, of color, that has — perhaps may have had to deal with [improprieties] and so forth, to understand what’s going on and what could be happening in this trial.”
The trial court denied Rhone’s request for a new jury pool, and jurors ultimately convicted him of all charges. Because of previous convictions related to past robberies, Rhone received a life sentence without the possibility of parole under the state’s three-strikes law.
Rhone appealed the decision, arguing that excluding the last or only juror of a particular race was discriminatory and required a race-neutral explanation. His case ultimately made it before the state Supreme Court, which denied that claim.
But things have changed since then, Justice Susan Owens wrote on behalf of the high court in the Thursday ruling.
“It is undeniable that our understanding of the impact of implicit racial bias on jury selection has changed since our 2010 decision,” Owens wrote.
For example: In 2017, the state Supreme Court upheld Rhone’s exact logic in a different case, City of Seattle v. Erickson. In that case, the justices ruled that trial courts must recognize apparent discrimination “when the sole member of a racially cognizable group has been struck from the jury.” That ruling referred to the directive as “the bright-line Rhone rule.”
But Rhone never received relief from his namesake rule. He filed a petition last year to have his case reviewed.
“We must allow him to benefit from the rule he proposed that ultimately became the law in this state,” Owens wrote in Thursday’s ruling. “Given the unique factual and procedural history of this case and in the interest of justice, we recall our prior mandate, reverse Rhone’s convictions and remand for a new trial.”
Studies have found that the diversity of a jury, or even the larger jury pool from which the jury is selected, affect the equity and justice of jury decisions.
Diverse juries “have longer deliberations, discuss more case facts, make fewer inaccurate statements, and members are more likely to correct inaccurate statements,” a 2021 Washington Supreme Court commission report found.
“Diverse juries are imperative to ensure defendants and the public that the criminal legal system is impartial and fair,” the ACLU of Washington wrote in a court brief supporting Rhone.
The Thursday decision left Sadarah Rhone overwhelmed with joy at the prospect of her husband coming home. Every day, he calls her from prison to talk to one of his 13 grandchildren, who each carry pocket-size photos of him, she said.
“I’m very happy. I can’t express to you what I feel,” she said. “I’m crying not because I’m sad, but I’m happy. I do believe that they did the right thing, that justice prevailed.”