"if Justice Is Not Equal for All, it Is Not Justice": Racial Bias, Prosecutorial Misconduct, and the Right to a Fair Trial in State v. Monday

• Citation: Vol. 35 No. 03
• Publication year: 2012

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 35, No. 3SPRING 2012

"If Justice Is Not Equal For All, It Is Not Justice": Racial Bias, Prosecutorial Misconduct, and the Right to a Fair Trial in State v. Monday

Michael Callahan(fn*)

I. Introduction

"If prosecutors are permitted to convict guilty defendants by improper, unfair means then we are but a moment away from the time when prosecutors will convict innocent defendants by unfair means."(fn1) Prosecutors have a duty to provide defendants with fair trials.(fn2) Part of this duty is that prosecutors may not make racist arguments or appeal(fn3) to racial biases "to impugn the standing of the defendants before the jury and intimate that the defendants would be more likely than those of other races to commit the crime charged."(fn4) Such appeals to racial biases are prosecuto-rial misconduct and may cause a court to grant the defendant a new trial.(fn5)

Despite this duty, Washington courts have seldom granted new trials when prosecutors have committed this type of prosecutorial misconduct.(fn6) Instead, for the past forty years, most courts in Washington have downplayed the impact such appeals to racial biases may have had upon juries' verdicts by holding that such misconduct is generally harmless er-ror.(fn7)

After forty years, this trend may be ending. In a recent prosecutorial misconduct case, State v. Monday,(fn8) the Washington State Supreme Court held that a prosecutor's appeals to racial biases deprived the defendant of his right to a fair trial notwithstanding overwhelming evidence of his guilt. Although eight of the nine justices agreed that the prosecutor's misconduct had deprived the defendant of his right to a fair trial, they arrived at this conclusion through different courses. Writing for the five-justice majority, Justice Chambers concluded that the prosecutor's conduct was not harmless error.(fn9) On the other hand, Chief Justice Madsen concluded in a separate opinion joined by two other justices that appeals to racial biases should be barred from trials from now on.(fn10) As the sole dissenting voice, Justice James Johnson argued that the evidence against the defendant was so overwhelming that the prosecutor's conduct likely had no effect on the jury's verdict, making any error harmless.(fn11)

This Note argues that of the three opinions from Monday, Washington state courts should follow Chief Justice Madsen's concurring opinion. Neither the majority nor the dissenting opinions adequately solve the problem of appeals to racial biases made at trial. Although Justice Chambers's opinion received a majority of the votes, it may not prevent attorneys from appealing to racial biases because such appeals may still be found by courts to be harmless error. On the other hand, Justice James Johnson's dissenting opinion downplays how such appeals may render a trial unfair. Only Chief Justice Madsen's opinion would adequately deter appeals to racial biases because it would bar all such appeals regardless of the circumstances.

The Monday decision also raises three questions that none of the opinions adequately answer: who does Monday apply to, what conduct does Monday forbid, and what is the legal source of the rules from Monday? The court will have to answer these questions in the future to determine the scope of its new rules. Part II of this Note discusses how Washington courts previously addressed the issue of prosecutorial misconduct and appeals to racial bias in trials. Part III analyzes the three opinions from Monday. In Part IV, this Note argues in favor of Chief Justice Madsen's concurrence. Part V looks at the three questions that the Monday opinion raises, and Part VI concludes.

II. Prosecutorial Misconduct Before State v. Monday

A. The Right to a Fair Trial

The right to a fair trial by an impartial jury is one of the most fundamental rights guaranteed by the United States Constitution.(fn12) This right inheres in the Sixth Amendment.(fn13) Each state is required to provide this right as a matter of due process under the Fourteenth Amendment.(fn14) The Washington State Constitution contains its own version of the Sixth Amendment-article 1, section 22(fn15)-and the right to a fair trial is generally applied through the Washington State Constitution's own due process clause-article 1, section 3.(fn16) The right to a fair trial is as fundamental under the Sixth Amendment of the United States Constitution as it is under article 1, section 22 of the Washington State Constitution,(fn17) and inheres in the section's guarantee of an impartial jury.(fn18)

Both the United States Supreme Court and Washington State Supreme Court have stated that defendants are not entitled to perfect trials, just fair ones.(fn19) Courts have agreed, however, that prosecutorial misconduct may render a merely imperfect trial unfair.(fn20) The term "prosecutori-al misconduct" has come to encompass many types of behavior.(fn21) For example, it is misconduct for a prosecutor to appeal to the prejudices of the jury to convict a defendant.(fn22) Such appeals may involve making statements to unfairly inflame "passion, sympathy or resentment" in the jury, attempting to mislead the jury about the evidence during closing argument, or unfairly prejudicing the jury against the defendant.(fn23) If misconduct occurs, a court may choose to reverse a defendant's conviction, even when the defendant fails either to object to the misconduct or to request the court to instruct the jury to disregard the prosecutor's mis-conduct.(fn24)

Before State v. Monday, trial courts in Washington possessed the discretionary power to reverse convictions if a prosecutor's conduct was both improper and prejudicial.(fn25) But courts have limited this power to situations where "the defendant's right to a fair trial was prejudiced" by the misconduct.(fn26) Traditionally, when determining whether such prejudice occurred, courts considered whether the State's case was strong enough to overcome any prejudice that a prosecutor's misconduct may have instilled in the jury.(fn27) To make this determination, courts would analyze the State's case as a whole, including the prosecutor's comments "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury."(fn28) When performing this analysis, however, appellate courts generally deferred to the decisions of trial courts about whether prosecutorial misconduct had affected the jury's verdict.(fn29) The defendant also bore the burden of demonstrating by a substantial likelihood that the prosecutor's misconduct affected the jury's verdict.(fn30) For forty years, this standard governed prosecutorial misconduct cases in Washington(fn31) and led to few reversals,(fn32) a trend that matched the rest of the country.(fn33) When arguing that prosecutorial misconduct had infringed on their rights to a fair trial, defendants traditionally faced an uphill battle.

B. Developments Prior to State v. Monday

Recently, the criminal justice system in Washington has experienced intense scrutiny for being racially biased against minorities.(fn34) Allegations of bias stemmed not just from questionable police conduct but also from comments made by Justices Richard Sanders and James Johnson of the Washington State Supreme Court. On October 7, 2010, the court met with professors and practitioners to determine how to make its boards and commissions more effective and accessible to minorities.(fn35) During this meeting, some presenters argued that racial biases existed in the criminal justice system that explained the racial disparity in Washington's prison population.(fn36) Although both Justices Sanders and Johnson responded to this argument with racially charged comments, Justice Sanders received the most notoriety with his comment that "'certain minority groups' are 'disproportionally represented in prison because they have a crime problem.'"(fn37)

These comments were poorly timed; Sanders was already locked in a tight race for reelection.(fn38) In response to his comments, the Seattle Times editorial board withdrew its endorsement of Sanders and threw all of its support behind his opponent Charlie Wiggins.(fn39) Although Wiggins had attacked Sanders primarily on his record as a supreme court justice,(fn40) Sanders's comments likely were the tipping point.(fn41) In a tight election with two million total votes, Wiggins defeated Sanders by 13,000 votes.(fn42) Although acknowledging his own distinguished career as an attorney, Wiggins later admitted that he likely won not because of who he was but "because of who he wasn't."(fn43) Sanders also admitted that losing the Seattle Times's support likely cost him the election.(fn44)

Sanders's comments also prompted many legal scholars and practitioners to examine the criminal justice system in order to determine whether the comments contained any truth.(fn45) This interest led to the formation of the Task Force on Racial Bias and the Criminal Justice System (Task Force), a group of judges, scholars, and practitioners who researched whether Washington's criminal justice system was biased against racial minorities.(fn46) On March 2, 2011, the Task Force presented its findings to the Washington State Supreme Court.(fn47) Calling Sanders's comments "a gross oversimplification,"(fn48) the Task Force argued that the criminal justice system in...