constitutions separate power into many hands. Among those
hands are the hands of the jury. CONST, art. I, § 22;
U.S. CONST, amend. VI. Juries are just as vital a check on
government power as the separation of powers between the
legislative, executive, and judicial branches. See Hale
v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 504, 198
P.3d 1021 (2009). To perform their vital function, juries
must be fairly selected. State v. Lanciloti, 165
Wn.2d 661, 667-68, 201 P.3d 323 (2009). Jury selection must
be done in a fair way that does not exclude qualified jurors
on inappropriate grounds, including race. See City of
Seattle v. Erickson, 188 Wn.2d 721, 723, 398 P.3d 1124
(2017) (citing Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986)); GR 37. As part of their
constitutional role, courts ultimately have the obligation of
ensuring those before them receive due process of law.
See, e.g., State v. Oppelt, 172 Wn.2d 285, 288, 257
P.3d 653 (2011); City of Redmond v. Moore, 151 Wn.2d
664, 677, 91 P.3d 875 (2004).
Bienhoff and Karl Pierce were tried before a jury and found
guilty of first degree felony murder. They contend, among
other things, that their jury was not fairly selected because
the State improperly elicited a conversation about the death
penalty during voir dire and improperly used a peremptory
strike to dismiss an African-American juror. The Court of
Appeals found that the prosecutor committed misconduct by
eliciting a conversation about the death penalty in a
noncapital case and that the trial court abused its
discretion in not curtailing that conversation. Since that
conversation led to the dismissal of at least two jurors, the
Court of Appeals reversed both men's convictions. We
affirm the Court of Appeals on different grounds.
in Woodland Park, shortly before 1-502 passed, a group
of men met ostensibly to buy and sell cannabis. Before the
end of that day, one of those men, Precious Reed, had been
killed in a gunfight. Bienhoff and Pierce were charged with
first degree felony murder predicated on first degree
robbery. Based on the facts alleged in the statement of
probable cause, they could have been charged with first
degree aggravated murder, which potentially carried a death
sentence at the time. RCW 10.95.020(1 l)(a); RCW
9A.32.030(1)(a). The State elected not to seek the death
panel of potential jurors was summoned. Under Washington law
at the time, it was error to inform these potential jurors
about the possible sentencing consequences the defendants
faced. State v. Townsend, 142 Wn.2d 838, 846, 15
P.3d 145 (2001) (quoting Shannon v. United States,
512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994)).
This prohibition specifically extended to the death penalty.
Id. The prosecutor asked the trial judge how they
should proceed if jurors, as they often do, asked whether the
death penalty was being sought. The trial judge said he had,
in the past, "evaded the question," but he was
willing to address the issue "with the group as a whole,
if that's what counsel thinks I need to do."
Verbatim Tr. of Proceedings (VTP) (Sept. 21, 2015) at 406.
The prosecutor responded:
The State's preference is to address it head on, of
course, in accordance with the law, which is to instruct them
that our state Supreme Court has decided that that is not
something that they are privy to, or we cannot tell them if
this is a death penalty case or not, and then ask them the
follow-up question. Basically, not knowing whether this is a
death penalty case or not, does that cause you concern as to
whether or not you could be a fair and/or impartial juror in
Id. The trial judge was concerned about that
My preference would be not to ask the follow-up question, but
just tell them that and then go on and then see if any of
them raises the issue beyond that. But I don't know what
you think about that.
The problem is if I invite them to say, you know, can you be
fair and impartial, then anybody who for some reason or other
couldn't like the idea of being here has a good way to
head for the door.
Id. at 406-07. The question of how to deal with the
death penalty was not resolved that day.
days later, during voir dire, prospective juror 56 said,
"My conscience is going to bother me all my life"
if he voted to convict someone who later proved to be
innocent, especially if that person served a long sentence.
VTP (Sept. 23, 2015) at 798-99. After some probing by the
court, juror 56 said he did not believe he could be a fair
juror on this case and was dismissed for cause. That
afternoon, the prosecutor "switch[ed] gears" and
reminded the remaining panel members that "Juror Number
56 . . . realized ... the weight of being a juror was not
something that he could deal with." Id. at 824.
The prosecutor emphasized that the jury's sole role was
to decide whether the State had met its burden of proof and
not to concern itself with punishment. After the prosecutor
asked the jurors if they "underst[oo]d that," were
"concerned] about that," or thought that
"doesn't make sense," among similar questions,
the following exchange occurred:
(Juror Number 1)[:] Is there a death sentence thing in the
state of Washington? That might bother me.
MR. YIP: I will let the judge answer that
THE COURT: The Washington Supreme Court has said that I
can't tell you whether a death sentence is involved or
not. BY MR. YIP:
Q. So our wise Washington Supreme Court has said that the
judge cannot tell you whether or not this is a death penalty
case or whether or not that is a potential outcome.
And I will get to the cards that are being raised right now.
So the ultimate question that I'm going to ask you is,
with that in mind that the judge can't tell you and you
won't know, does that cause you any concern about being a
juror in this case where the charge is murder in the first
Juror Number 5.
A. So-and I know you can't tell us, but if that's a
possibility at all, yes, I have concern with that. Because
like we have said before, evidence can come out later. And if
they are sentenced to death, I have an issue with that,
because I don't-not that I'm making the call of their
punishment, but I don't want to find them guilty if that
should be the case and then an irreversible decision has been
As awful as it would be if they were later found out innocent
and still in jail, that's not nearly as bad as if they
had a death penalty.
Id. at 825-26.
wake of this discussion, jurors 1, 5, 6, 15, 20, 39, 76, 98,
116, and 131 all expressed concerns about sitting on a jury
in a possible death penalty case. Upon further questioning,
most assured the court that they could be fair. Juror 76,
however, reported that the weight of sending someone to a
long prison sentence or death weighed so heavily on her that
she could not finish her lunch.
6, apparently the only African-American potential juror in
the courtroom at that time, said, "I wouldn't want
to be responsible for sending somebody-penalizing them to the
death penalty, whether I knew beforehand or not. I
wouldn't feel comfortable also with sending someone to
jail for life." Id. at 827. The prosecutor
stressed that the jurors do not decide the sentence. Juror 6
acknowledged the point but observed, "[T]he decision
that we, as jurors, would make would be instrumental in
deciding the fate of another person, which I don't want
that kind of responsibility on my shoulders."
Id. at 828. When asked directly if she could be
fair, juror 6 said, "I can. I can." Id.
Later, however, juror 6 said that without knowing whether the
death penalty was a possibility she "would not be able
to make a decision in this case." Id. at 833.
The State moved to strike juror 6 for cause.
the presence of the jury, defense counsel raised "a
very, very strenuous objection to the proceeding that we
have, and I'm afraid I have to ask for a mistrial."
Id. at 838. Counsel was concerned that the State was
identifying jurors with "qualms about something that is
completely irrelevant in this case" and that it was
attempting to "death-qualify" the
jury. Id. at 838-39. The prosecutor
denied he was trying to death-qualify the jury. The trial
court found that the prosecutor had not done anything
"improper in any way. It's the juror that first
brought up the death penalty." Id. at 846. The
State moved to dismiss jurors 6 and 76 for cause.
juror 6 and juror 76 were brought back to be questioned
individually. The judge again stressed to juror 6, "I am
not allowed to tell you whether this is a capital case"
and "the question of whether the death penalty would be
imposed is a separate proceeding at which there can be
additional evidence that would be determined by a jury that
follows any trial and any conviction." Id. at
asked directly, given that the jury has nothing to do with
sentencing, "could [you] be a fair and impartial juror