From Justice Alito's statement today respecting the denial of certiorari, joined by Justice Thomas, in Thompson v. Henderson (for the opinion this criticizes, see here):
I concur in the denial of certiorari because this case is in an interlocutory posture, and it is not clear whether it presents any "federal issue" that has been "finally decided by the" Washington Supreme Court. Cox Broadcasting Corp. v. Cohn (1975); see 28 U.S.C. §1257. But if the Washington courts understand the decision below to be as sweeping as it appears, review may eventually be required.
This case started as an ordinary tort suit over a car accident. The victim of the accident, plaintiff Janelle Henderson, is black, as was her trial counsel. Alicia Thompson, the defendant, is white, as was her trial counsel. Thompson admitted fault, so the suit was over damages. Henderson claimed that the whiplash she suffered from the accident "seriously exacerbated" her Tourette's syndrome, and she asked for $3.5 million in damages.
Defense counsel naturally tried to convince the jury that such a large award was not justified, and the jury, which awarded Henderson only $9,200, was apparently persuaded. Henderson moved for a new trial, claiming that the small award was based on racial bias, but the trial court denied the motion without a hearing.
In a remarkable decision, the Washington Supreme Court reversed due to the possibility that the jury's award was tainted by prejudice, and it remanded for a hearing that appears to have no precedent in American law. In support of its decision, the court cited several statements made by defense counsel in her closing argument. It pointed to defense counsel's description of Henderson as "quite combative" on the witness stand and her description of Thompson as "intimidated and emotional about the process." The court found that these comments played on stereotypes about the "'angry Black woman'" and the "victimhood" of white women.
The court also cited defense counsel's insinuation that Henderson was motivated by a desire for a financial windfall, as well as her suggestion that Henderson could not have suffered $3.5 million in damages since she had not even mentioned the accident when she saw her doctor a short time thereafter. The court thought that this argument "alluded to racist stereotypes"—that black women are "lazy, deceptive, and greedy" and are "untrustworthy and motivated by the desire to acquire an unearned financial windfall." The court also faulted defense counsel for suggesting that Henderson's lay witnesses, all of whom were black, had been prepared or coached because they all used the same phrase—"'life of the party'"—to describe Henderson's personality before the accident. The court viewed this tactic as inviting jurors to make decisions about these witnesses "as a group and … based on biases about race and truthfulness."
