The Washington Supreme Court is considering a case (State v. Kevin Monday) in which a King County prosecutor made appeals to racial prejudice in a criminal jury trial. The ACLU of Washington has filed an amicus brief urging the court to condemn the attorney’s conduct in this case and to deter similar conduct in the future. The Court will hear arguments in the case on May 11, 2010.
Mr. Monday was accused of fatally shooting Francisco Green. None of the prosecutor’s witnesses testified at trial that Monday was the shooter. The prosecutor argued to the jury that this was because all African Americans followed “the code” that “black folk don’t testify against black folk.” Although there was witness testimony that people on the street are wary of speaking with police, no witness suggested that African Americans (any more than any other witnesses) felt this way. The prosecutor also repeatedly adopted an accent when questioning one of his African-American witnesses about her relationship with the “po-leese.” The court reporter specifically recorded the prosecutor’s use of an accent in the transcript.
In an unpublished opinion, the Court of Appeals ruled the prosecutor’s conduct was “improper” because the State may not “seek a conviction on racial bias.” However, the Court of Appeals upheld Monday’s conviction because it believed there was strong evidence against him. The Washington Supreme Court agreed to review the case.
The ACLU’s brief explains that attorney appeals to racial bias in criminal trials have long been condemned as unconstitutional by Washington courts and others. However, despite the repeated admonishments by the courts, attorneys have not stopped engaging in such conduct. The ACLU urges the Court to take stronger action to deter this misconduct in the future.
“A prosecutor’s injection of racial bias into a trial injures not only the defendant, but society as a whole. Conduct like this undermines public confidence in the fairness of the court system and makes racial disparities in the system worse,” said Sarah Dunne, ACLU-WA legal director.
The ACLU-WA’s friend-of-the-court brief was written by volunteer attorney Johanna Pirko and ACLU staff attorneys Sarah Dunne and Nancy Talner. Kevin Monday, Jr., is represented by Nancy Collins of the Washington Appellate Project.