Every lawyer eventually has a case that forces them to become an expert in an area of law they never expected to litigate.
For me, that case was a recent murder trial.
I've spent my career defending people accused of the most serious crimes. I've litigated forensic DNA, self-defense, false confessions, constitutional violations, expert testimony, and complex homicide trials. But until this case, I had never handled a Berhe hearing.
In fact, when concerns about racial bias first surfaced after the jury returned its verdict, I didn't immediately recognize what I was looking at.
I knew something was wrong. A juror came forward after the verdict expressing concern about comments made during deliberations regarding race, my client's character, and his lifestyle. I knew those concerns were serious, but I did not yet appreciate that Washington had created a specific legal framework for investigating exactly this type of situation.
That framework comes from the Washington Supreme Court's landmark decision in State v. Berhe.
So I did what lawyers do.
I read every Berhe case. I studied the history behind the decision. I researched implicit bias, jury deliberations, and the growing body of Washington case law addressing racial bias in the courtroom. I immersed myself in an area of law that, until then, had simply never crossed my desk.
So...what the heck is a Berhe hearing?
A Berhe hearing is a court proceeding used to determine whether implicit or explicit racial bias may have affected a jury's verdict.
Normally, what happens inside a jury room stays inside the jury room. That's an important principle because jurors need the freedom to deliberate openly and honestly.
But racial bias is different.
The Washington Supreme Court recognized that racism often does not announce itself in obvious ways. It can appear through coded language, stereotypes, assumptions about someone's character or lifestyle, or unconscious associations that even well-intentioned people may not recognize in themselves.
Because of that reality, our Supreme Court held that courts cannot simply ignore credible evidence suggesting racial bias may have entered the deliberation room.
Instead, courts must ask a different question:
Could an objective observer—one who understands the realities of implicit racial bias—conclude that race may have been a factor in the verdict?
If the answer is yes, the court has an obligation to investigate further.
That investigation is what we now call a Berhe hearing.
Why does this matter?
This process is not about calling jurors racist.
In fact, one of the most important lessons from Berhe is that implicit bias is often unconscious. Good people can unknowingly carry assumptions that influence how they interpret evidence or perceive another person.
That is precisely why these hearings exist.
Every person accused of a crime deserves a verdict based on the evidence presented in court; not on stereotypes, assumptions, or preconceived notions.
Our justice system depends on public confidence that jury verdicts are fair.
When credible evidence suggests racial bias may have influenced deliberations, courts cannot simply look the other way.
As the judge in my case wrote:
"Explicit or implicit, purposeful or unconscious, racial bias has no place in a system of justice."
I don't think it can be said any better than that.
The difficult reality of identifying bias
One of the things I found most fascinating while researching this issue is that racial bias is uniquely difficult to prove.
People rarely admit that race influenced their thinking.
Even more importantly, people may honestly believe they were completely fair while still being influenced by unconscious assumptions.
The Washington Supreme Court recognized this reality. Rather than requiring proof that a juror intended to discriminate, Berhe asks courts to examine the circumstances objectively.
That is a remarkably thoughtful approach to an incredibly difficult problem.
It also explains why these hearings are so uncommon, and why they matter so much when they occur.
An extraordinary result
After extensive briefing, several evidentiary hearings, and testimony from all 12 of our deliberating jurors, the court ultimately granted my client's motion for a new trial.
In reaching that decision, the court emphasized that the focus was not whether anyone intentionally acted with racial animus. The question was whether the State had met its burden of showing that racial bias did not affect the verdict.
The court concluded it had not.
Perhaps the most powerful language in the order came near the end:
"Allowing bias or prejudice by even one juror to be a factor in the verdict violates a defendant's constitutional rights and undermines the public's faith in the fairness of our judicial system."
And then, in one sentence that changed the course of my client's life:
"Defendant's Motion for a New Trial is GRANTED."
Murder convictions are not reversed often. Neither are successful Berhe motions.
This was an extraordinary outcome, and one that underscores why these hearings exist in the first place.
What I learned
This case reminded me that practicing criminal defense means being a lifelong student.
No matter how many trials you've handled or how many years you've been practicing, there will always be a case that teaches you something entirely new.
For me, that was State v. Berhe.
I wish I had recognized the issue sooner. But once I understood what Berhe required, I was able to advocate for my client using a body of law that exists for one reason: to ensure that verdicts are based on evidence, not bias.
At the end of the day, Berhe hearings are not about politics.
They are not about labeling people.
They are about preserving the integrity of the jury system.
Because if our justice system is going to ask twelve citizens to decide whether another human being loses his liberty—or even spends the rest of his life in prison—we have to be willing to confront credible evidence that prejudice may have entered that deliberation room.
That is not a weakness of our justice system.
It is one of its greatest strengths.