Background
Nigel Hogan, a Black man, was convicted of second-degree felony murder following a 2022 trial. During voir dire, the State exercised a peremptory challenge to remove juror 40—a white juror who had written on their questionnaire that they held “strong beliefs” about excessive police force against “historically underrepresented groups” and acknowledged that the criminal justice system is “overwhelmingly harsh on poor people.” Juror 40 also expressed these views when questioned individually, though they committed to approaching the case with an open mind. Defense counsel objected by invoking “GR 37″—Washington’s 2018 rule designed to eliminate race discrimination in jury selection—but immediately framed the objection entirely around gender identity, asserting without record support that juror 40 was “one of the only trans persons on the jury.” Gender identity is not a protected classification under GR 37. The trial court addressed only the gender-identity framing, denied the objection, and permitted the strike. The Court of Appeals affirmed, holding that the misdirected objection failed to preserve a race-based GR 37 claim for review.
On petition, the Washington Supreme Court accepted review to address whether the race-based GR 37 argument was reviewable despite the preservation failure, how GR 37’s limits on demeanor-based and presumptively invalid justifications apply when the challenged juror is white, and whether—considering only permissible justifications—an objective observer could view race as a factor in the strike. The court also accepted review of a procedural question regarding whether the Court of Appeals erred in striking Hogan’s statement of additional authorities under RAP 10.8.
GR 37(e) requires denial of a peremptory challenge if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge,” without any requirement of purposeful discrimination. GR 37(h) identifies reasons historically associated with discriminatory strikes that are presumptively invalid, including a juror’s “significant concerns about the criminal justice system” related to race. GR 37(i) bars reliance on demeanor-based justifications unless the challenging party gave reasonable advance notice so the behavior could be verified and corroborated by both the judge and opposing counsel.
The Court’s Holding
The court held that GR 37’s protections run to the juror’s own race or ethnicity—not to the defendant’s race. A peremptory challenge to a white juror based on that juror’s stated views about racial bias in policing does not, on that basis alone, implicate GR 37, because GR 37 bars dismissal of a prospective juror on account of the juror’s race or ethnicity. Hogan’s argument—that the State’s justification impermissibly relied on the juror’s acknowledgment of his (the defendant’s) race-related concerns—was therefore not cognizable as a GR 37 race-discrimination claim under the rule’s text and purpose. On the standard of review, the court reaffirmed State v. Bell, 5 Wn.3d 54 (2025): GR 37 decisions are reviewed de novo, and trial-court impressions about juror demeanor receive no special deference.
On preservation, the court held that invoking “GR 37” is sufficient to preserve a race-based objection—but that defense counsel’s immediate pivot to a gender-identity theory, with no record support, effectively abandoned the race issue and invited the trial court to address only a non-GR 37 question. The court nonetheless exercised its discretion to reach the unpreserved race-discrimination claim on the merits. Turning to GR 37(i), the court held that the State’s demeanor-based justifications—that juror 40 “struggled to articulate their thoughts” and “seemed very uncomfortable”—were barred because the State never gave advance notice of those observations, and neither the judge nor defense counsel corroborated them as GR 37(i) requires. The transcript, the court observed, did not support the characterization; juror 40 answered every question posed and demonstrated thoughtfulness.
On the ultimate question, the court held that even setting aside the impermissible justifications, an objective observer could not view race as a factor in the State’s strike of juror 40. Looking at the totality of circumstances under GR 37(g), the State asked the same questions about race and policing to many jurors, used its first two unchallenged strikes against two other white jurors who expressed similar concerns about racial bias in policing, and allowed several jurors of color with comparable views to remain seated. The presumptively invalid reason under GR 37(h) was rebutted by this overall pattern. The court affirmed Hogan’s conviction.
Key Takeaways
- GR 37 protects prospective jurors from being struck based on their own race or ethnicity; it does not prohibit striking a juror because of that juror’s views about the defendant’s race or the racial dynamics of the case.
- Saying “GR 37” on the record is sufficient to preserve a race-based peremptory objection, but immediately redirecting the argument to a different, non-GR-37 ground can waive the race claim—though the Supreme Court retains discretion to reach race-discrimination issues for the first time on appeal.
- GR 37(i)’s verification requirement is strictly enforced: a party that fails to give advance notice of demeanor-based justifications for a peremptory strike cannot rely on those justifications, and neither the trial court’s nor the challenging party’s in-the-moment impressions will be credited.
- A presumptively invalid GR 37(h) reason is rebuttable; courts must evaluate the totality of circumstances, including the pattern of questioning and strikes across all jurors, not just the challenged juror in isolation.
- Defense counsel must not assume or assert a juror’s gender identity in the absence of record evidence, particularly where the juror elected to keep that information private.
Why It Matters
This decision draws a significant doctrinal line in Washington’s GR 37 jurisprudence: the rule’s anti-discrimination protections are keyed to the juror’s race, not the defendant’s, meaning that a prosecutor’s strike of a white juror for expressing views sympathetic to racial-justice concerns does not by itself establish a GR 37 violation. For practitioners, the ruling also offers concrete guidance on preservation—citing GR 37 is enough, but counsel must actually articulate a race-based theory or the cite will be ineffective—and reaffirms the strict procedural demands of GR 37(i), which effectively renders unsupported, after-the-fact demeanor testimony off-limits.
The decision is also notable for its en banc application of the de novo standard from State v. Bell to a case where the challenged juror is white, confirming that GR 37’s framework applies regardless of the juror’s race and that trial-court credibility calls about demeanor will not shield a peremptory strike from searching appellate review. Defense attorneys and prosecutors alike must now approach voir dire with an awareness that any demeanor-based justification requires real-time, on-the-record corroboration to survive challenge.