I recently wrote for the court reversing the King County murder conviction of Kevin Monday because the State’s prosecutor intentionally appealed to racial bias. Among other things, he argued African American witnesses as a race were unreliable because “black folk don’t testify against black folk.”   At the outset, I would like to commend the elected King County Prosecuting Attorney, Dan Satterberg, and his office for a courageous and sterling response to an opinion condemning the performance of a deputy prosecutor.  Satterberg promptly responded, “We agree with Justice Chambers’ observation that ‘theories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.'”  Mr. Monday will be retried.  Often in such cases defendants are convicted again, but he deserves a constitutionally fair trial.

The opinion involved a modest improvement in our jurisprudence and caught the attention of the press and public.  http://templeofjustice.org/cases/2010/state-v-monday. Its ultimate impact and fall out may be far greater than I envisioned.  Below I will e the facts of the case, how it changed the law, and how it has affected the deputy prosecutor involved and perhaps prosecutors in general.  Finally, I will offer some thoughts about race and trials.

A street musician set up a video camera as he played in Pioneer Square one summer’s evening.  The camera captured a confrontation among several men that night. One of them, wearing a distinctive red shirt, appeared to be Monday.  The man in the red shirt suddenly pulled a gun and fired rapidly as he walked backward and then turned and ran away.  Francisco Green was shot four times and died.  Two other men were shot but survived.

Before discussing the legal issues, I would like to explain the role of a prosecuting attorney in our system.  The prosecutor is the representative of the people and deserves and receives great respect from jurors.  It is a noble calling to be a prosecutor.  A prosecutor serves two important functions.  A prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law.  A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.  State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)).  Defendants are among the people the prosecutor represents.  The prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.  Id. at 71.  Thus, a prosecutor must function within boundaries while zealously seeking justice.  Id.

Because the prosecutor is the representative of the State, the law requires that a prosecutor not assert the prosecutor’s personal belief as to the guilt of the accused or the credibility of any witness.  Nor is the prosecutor permitted to vouch for the credibility of the State’s witnesses.  It is exclusively the jury’s province, based only upon the evidence admitted, to determine issues of credibility and guilt or innocence.  These are among the boundaries which a prosecutor may not cross.  Most prosecutors perform their duties with both skill and fidelity to the law.

In addition to saying “black folk don’t testify against black folk,” the prosecutor also began referring to the police as “po-leese” (something the record may not have reflected had it not been for a court reporter faithfully reporting exactly what was said).  The use of the word “po-leese” was likely an effort to subtly call the jury’s attention to the fact the witness was black and to emphasize the prosecutor’s assertion that “black folk don’t testify against black folk” and thereby discredit the witness based upon race.  In the opinion, citing many authorities, the court points out that, “like wolves in sheep’s clothing,” a carefully placed word can trigger racial bias.  Subtle references to stereotypes are more insidious than blatant references.  Blatant appeals to race are more likely to offend jurors and are more readily recognized by judges and reviewing courts.

Further, the prosecutor in Monday’s case made numerous attempts to inject his own view of the credibility of witnesses leading to admonitions by the trial judge who at one point even said to the prosecutor, “Let the jury decide if this witness should be believed or not.”   In his closing statement, the prosecutor told the jury of his 18 years experience as a prosecutor and then said that one tenet all good prosecutors believe “is that the word of a criminal defendant is inherently unreliable.”  A prosecutor with 18 years of experience knows that such a statement is improper.

In the Monday opinion, the Washington Supreme Court did make a change in the law.  No trial is perfect and during the course of any trial there are likely to be some mistakes even by the finest judges and best lawyers.  The constitution guarantees a fair trial, not a perfect trial.  We do not overturn a conviction because an error has been made unless we are satisfied that the mistake had a likelihood of affecting the outcome of the trial.  We call this a harmless error analysis.  Normally the defendant has the burden of persuasion to demonstrate both that an error occurred and that there is a substantial likelihood the error affected the verdict.  In Monday, we shifted the burden to the State to show an appeal to racial bias DID NOT affect the verdict.

Because appeals by a prosecutor to racial bias necessarily seek to single out one racial minority for different treatment, it fundamentally undermines the principle of equal justice and is so repugnant to the concept of an impartial trial its very existence demands that appellate courts set appropriate standards to deter such conduct.

The court’s holding was this:

We hold that when a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence, we will vacate the conviction unless it appears beyond a reasonable doubt that the misconduct did not affect the jury’s verdict.  We also hold that in such cases, the burden is on the State.

While there is little doubt that Monday was the shooter, the videotape sheds little light on why he was shooting or his state of mind.  For example, first degree murder, the crime charged, requires the State to prove the defendant premeditated the murder.

The fallout for the prosecutor in question, James Konat, has been harsh.  He has been removed as the prosecutor from several high profile cases and the NAACP has demanded he be fired.  What happens, of course, is none of my business.  But while I was very troubled by his conduct in the Monday trial and was a member of the NAACP before joining the court, it would give me no pleasure to see the man fired.  We all make mistakes.  I certainly have made my share.  Fortunately we can learn from our mistakes and become better people and better lawyers.  It has been reported that Konat has acknowledged his comments were highly offensive and he regrets them.  I would hope his 18 years of as a prosecutor is not measured by one trial but by all of his work.

I would like to caution that the holding of the Monday opinion not be overstated.  We cannot eliminate all references to ethnic or cultural differences. Sometimes it is important to understand cultural differences to properly interpret the facts of a case.  The impact of cultures may arise in surprising circumstance.  For example, I was quoting myself in Monday when I wrote, “[T]heories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.”   The quote comes from State v. Dhaliwal, 150 Wn.2d 559, 583, 79 P.3d 432 (2003) in which I wrote a concurring opinion.  In 1999, Paramjit Singh Dhaliwal shot fellow taxi driver Jasbir Bassi.  They were both Sikhs, a religion that developed in the Punjab region of India largely in reaction to and in rejection of the caste system of Hinduism.  In the trial, Sikhs were portrayed, I think wrongly, as prone to violence.  Parties introduce testimony that cursing and swearing and the act of knocking off a turban were a sign of great disrespect, which could provoke a violent response.  But the defendant, Dhaliwal, embraced the stereotype that Sikhs are prone to violence as part of his self-defense claim that he shot Bassi because he feared bodily harm from his victim.  In that case, I was again critical of introduction of an ethic stereotype into the trial, but I felt that Dhaliwal waived any objection and could not show prejudice under the facts of the case.

Finally, I would again like to say that in Washington we have a good judicial system and certainly in recent times a history of working hard to eliminate disparate treatment in the court room based upon race.  Please see Chief Justice Madsen’s guest editorial in the Seattle Times outlining some of this court’s efforts. http://seattletimes.nwsource.com/html/opinion/2013358328_guest07madsen.html — We currently have a Task Force on Race and the Criminal Justice System. http://www.law.seattleu.edu/x8777.xml.  The Monday opinion was a clear and unequivocal statement by the Washington Supreme Court that it will not tolerate appeals to racial bias in the courts.



June 9, 2011

Statement of King County Prosecuting Attorney Dan Satterberg on the State Supreme Court opinion reversing the case of State v. Kevin L. Monday:

Generalizations based on race are always untrue, highly offensive, and have no place in the courtroom. We agree with Justice Chambers’ observation that, “Theories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.”

The deputy prosecutor deeply regrets his remarks that the Supreme Court has found to constitute reversible error. He has been told, in no uncertain terms, that those arguments are unacceptable.

During this appeal, The Prosecuting Attorney’s Office has not taken the position that the offensive comments were appropriate. To the contrary, we agreed that they were inappropriate.

The issue argued before the court was the extent to which the prosecutor’s comments affected the jury’s verdict in light of all of the evidence presented at trial. The court has answered that question and we will move forward with a retrial that will focus on the evidence.

The Prosecuting Attorney’s Office will retry the case and we will assign a different deputy prosecutor to present that case in court.