Okanogan County case remanded
By Marcy Stamper
The state Court of Appeals in Spokane last week overturned the 2019 conviction of a sex offender for failing to register with law enforcement, agreeing with the appellant that he had been denied the right to a fair and impartial jury because then–Okanogan County Prosecutor Arian Noma had rejected jurors when race or ethnicity could have been a factor.
Warren McCrea of Nespelem, who is Native American, appealed his 2019 conviction for failing to register as a sex offender, according to the unpublished opinion, issued April 20.
McCrea, age 32 at the time of the appeal, was found guilty of two counts of rape of a child in juvenile court for conduct that had occurred when he was 13 years old, according to court documents. As a result, state law requires him to register as a sex offender for the rest of his life with the county where he resides. McCrea had previous convictions for failing to register as a sex offender, making the charges a felony.
After general questioning in Okanogan County Superior Court, McCrea’s attorney and Noma, for the state, each exercised peremptory challenges, where they can eliminate a juror without stating a reason, according to the opinion.
The opinion quotes the Superior Court transcript, where Okanogan County Superior Court Judge Henry Rawson questioned lawyers about the challenges. One juror, Ms. Bigwolf, was Native American, and others, “I believed to be at least Hispanic or Spanish surname,” the opinion quoted Rawson as saying.
According to the opinion, Noma said he didn’t look at gender or race. “[I’m] a person of color…. [I] would never strike anyone based on their race,” he said.
Noma explained that he had stricken one juror who had a conviction for a crime and another who stated her father was a rapist. Another had a funeral to attend, but the court declined to excuse her, he said in his briefing to the Court of Appeals. He also said he was eliminating jurors starting at the end of the list so that they could impanel the first 12.
Lawyers for McCrea said it appeared that the state was essentially targeting jurors of Native descent.
History of discrimination
The rule on jury selection was adopted in 2018 “to eliminate the unfair exclusion of potential jurors based on race or ethnicity,” according to the opinion. “If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied,” the rule says.
“Although the court need not find purposeful discrimination, its inquiry is based on a reasonable person ‘who is aware of the history of explicit race discrimination in America and aware of how that impacts our current decision-making in nonexplicit, or implicit, unstated, ways,’” the Court of Appeals said.
McCrea’s attorney, Lise Ellner, argued in the Court of Appeals that McCrea had been denied his constitutional right to trial by a fair and impartial jury. Although the trial court objected to the use of the peremptory challenges, the court granted them anyway, even though the state hadn’t provided an adequate reason for targeting jurors representing racial minorities, Ellner said.
There were two people of color on the jury, including at least one Native American, Noma said. “The State did not strike any jurors from the jury panel based upon race,” he said.
The Superior Court jury found McCrea guilty and he was sentenced to prison time.
The Court of Appeals reversed McCrea’s conviction for not registering with Okanogan County and remanded the case to Superior Court for a new trial.
