"like Wolves in Sheep's Clothing": Combating Racial Bias in Washington State's Criminal Justice System

• Publication year: 2012

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

"Like Wolves in Sheep's Clothing": Combating Racial Bias in Washington State's Criminal Justice System

Krista L. Nelson(fn*) and Jacob J. Stender(fn**)

I. Introduction

Racial bias in the United States' criminal justice system is a serious problem,(fn1) and Washington State is no exception.(fn2) The groundbreaking Preliminary Report on Race and Washington's Criminal Justice System (Task Force Report) revealed striking evidence of racial and ethnic bias at various stages of criminal proceedings(fn3) and highlighted the need for an integrated strategy to combat its prevalence.

Among nine potential causes of racial disparity identified and addressed in the Task Force Report,(fn4) one attracted a great deal of public attention in 2011: prosecutorial decision-making.(fn5) While the Task Force Report focused on decision-making in the context of charging and sentencing recommendations,(fn6) decision-making also includes prosecutors' presentations to the jury and their general courtroom conduct. Specifically, one prosecutor's blatant use of racial stereotypes in the courtroom in State v. Monday(fn7)-in which the Washington State Supreme Court held that the injection of racial bias required reversal-brought prosecutors' conduct to the center of public debate.(fn8)

In April 2006, a man was shot four times following a confrontation between multiple individuals in downtown Seattle,(fn9) and he succumbed to his wounds upon arrival at a nearby hospital.(fn10) Two others shot during the attack survived.(fn11) A video camera close to the scene of the shooting captured an image of a man in a "distinctive, long red shirt" drawing a pistol and firing the gunshots that struck all three victims.(fn12) Though many witnesses gave inconsistent accounts of the incident and were reluctant to cooperate with police, two witnesses identified defendant Kevin L. Monday, Jr. as the shooter.(fn13) Police arrested Monday three weeks later while he was wearing a red shirt and hat that were "strikingly similar" to the clothing worn by the shooter in the video.(fn14) During subsequent police questioning, Monday confirmed that he was the man wearing the red shirt in the video, and he confessed shortly thereafter that he was the shooter.(fn15) Officers later recovered bullet cartridges from Monday's home that were identical to those used in the shooting.(fn16)

Prosecutors charged Monday with first-degree murder and two counts of first-degree assault, and the case proceeded to trial.(fn17) During the testimony of one witness who previously identified Monday as the shooter, the prosecutor frequently pronounced the word "police" as "po-leese."(fn18) The prosecutor also referenced a code of conduct that certain people do not talk to the police about criminal matters.(fn19) He returned to the theme during closing argument where he made the racial implications of his theme explicit: [T]he only thing that can explain to you the reasons why witness after witness after witness is called to this stand and flat out denies what cannot be denied on that video is the code. And the code is black folk don't testify against black folk. You don't snitch to the police.(fn20) The prosecutor revisited the theme several times and argued that "the code" was the reason witnesses gave testimony inconsistent with their own pretrial statements.(fn21) The jury returned guilty verdicts on all three counts,(fn22) and the appellate court affirmed the verdicts on appeal.(fn23) On the question of prosecutorial misconduct, the appellate court held that while the prosecutor improperly injected racial overtones into the proceedings, the error was harmless.(fn24)

The Washington State Supreme Court disagreed and held that the prosecutor's improper conduct constituted reversible error.(fn25) The court found that "[t]he prosecutor's misconduct tainted nearly every lay witness's testimony. It planted the seed in the jury's mind that most of the witnesses were, at best, shading the truth to benefit the defendant."(fn26) Based on this improper conduct, the court determined that it could not "say beyond a reasonable doubt that the error did not contribute to the verdicts," and thus held that a new trial was required.(fn27) In so holding, the court radically reshaped the long-used analysis for prosecutorial misconduct and signaled a new intolerance toward racial bias in criminal proceedings.

But the court did not unanimously fashion a single test for use in cases of alleged prosecutorial misconduct involving racial bias, which prompted an ensuing debate within Washington's legal community.(fn28) The tests articulated in Monday's majority, concurring, and dissenting opinions provide three different ways to address the complex problem of racial bias in Washington that continues to persist. All three tests acknowledge that racial bias during criminal trials is a serious problem that requires a strong judicial response. But the appropriate form of that response prompted separate opinions that highlight four distinct differences regarding how to best combat racial bias.

First, the opinions differ regarding the source of law that should be applied when an existing legal framework proves inadequate to address a social problem. Following Monday, an open question remains regarding whether it is best to draw upon existing legal precedent, even if attenuated, or whether it is better to combat old problems with new law. Second, the three opinions differ in the degree of racial bias required to trigger a reversal of a conviction. Thus, the opinions raise a question as to whether a showing of flagrant or apparent racial bias should be necessary for a court to vacate a conviction, or whether racial bias in the courtroom is so offensive that any showing of racial discrimination should be sufficient to vacate a conviction.

Third, the opinions differ in the amount of judicial discretion they afford courts to identify racial bias, which is of particular importance because many appeals to racial bias are subtle or unconscious.(fn29) But questions persist regarding the criteria that should be used to decide whether racial bias is present in the courtroom. Finally, the three opinions do not conclusively define how much weight courts should afford competing interests in determining an appropriate judicial response to racial bias. Whether victims' rights and the legitimacy of the criminal justice system as a whole should be considered remains unresolved.

Despite their differences, both the majority and concurring opinions in Monday present new ways to address prosecutorial misconduct, deter the injection of racial bias into courtroom proceedings, and create sub-stantively similar outcomes. Part II of this Note discusses the traditional prosecutorial misconduct test in Washington State, as well as the rules articulated by the Monday majority and concurrence. Part III discusses the implications of both the majority and concurring opinions, the primary differences in their approaches to deterrence, the degree of racial bias they require to warrant reversal of a conviction, and the discretion they afford the judiciary. Part III also suggests that courts must consider both the rights of criminal defendants and the aggregate impacts of racial bias on society at large when fashioning a rule to combat racial bias.

II. When the Existing Legal Framework Falls Short: Traditional Analysis for Prosecutorial Misconduct

The majority and concurring opinions in Monday were both groundbreaking due to their departure from Washington legal precedent. For nearly forty years, Washington courts have employed a prosecutorial misconduct test that requires reversal if the prosecuting attorney's conduct is both improper and prejudicial.(fn30) Under this test, courts consider the effect of the prosecutor's improper conduct in the context of the full trial, rather than in isolation.(fn31) Generally, the appellant must demonstrate a substantial likelihood that the misconduct affected the jury's verdict in order to warrant reversal.(fn32) If the defendant fails to object to a prosecutor's conduct during the trial, then the burden on the defendant is even higher. The prosecutor's conduct must then be so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.(fn33) Despite the longstanding history of the law, both the majority and concurrence in Monday found the traditional test for prosecutorial misconduct insufficient to address instances where a prosecutor injects racial bias into a criminal trial.

In contrast to the traditional prosecutorial misconduct analysis, courts apply a heightened harmless error standard in Washington when an error during trial implicates a constitutional right.(fn34) If the appellant shows that a constitutional error occurred, "the State bears the burden of proving that the error was harmless" because the error is presumptively prejudicial.(fn35) "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error."(fn36) Thus, the primary features of this constitutional harmless error standard are that it (1) shifts the burden of proof to the State and (2) requires a showing of harmless error beyond a...