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Michael Callahan

Excerpted from: Michael Callahan, "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 , 35 Seattle University Law Review 827 (Spring, 2012) (163 Footnotes omitted) (Student Note)


"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 Prosecutors have a duty to provide defendants with fair trials. Part of this duty is that prosecutors may not make racist arguments or appeal 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 Such appeals to racial biases are prosecutorial misconduct and may cause a court to grant the defendant a new trial. Despite this duty, Washington courts have seldom granted new trials when prosecutors have committed this type of prosecutorial misconduct. 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 error.

After forty years, this trend may be ending. In a recent prosecutorial misconduct case, State v. 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. 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. 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.

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.

. . .

State v. Monday has the potential to dramatically change the nature of Washington courtroom proceedings and trial tactics that implicate race. Of the three opinions from Monday, however, only Chief Justice Madsen's rigid rule is likely to deter appeals to racial bias in the future. The majority's harmless error standard may ultimately fail in curbing prosecutors--or attorneys, in general--from making appeals to racial bias because the standard would permit convictions premised on such appeals to stand in some cases. The dissent's holding could exacerbate rather than prevent the problem of racial bias because it denies that any change must be made to the old standard. The inherent problems with these two opinions may render them incapable of solving the problem of racial bias in the criminal justice system. On the other hand, Chief Justice Madsen's rule is the most likely to deter appeals to racial biases because it is an absolute bar on appeals to racial biases that cannot be circumvented.

Whichever rule from Monday Washington courts ultimately choose to follow, they will have to determine who Monday applies to, what type of conduct Monday forbids, and what the legal sources of Monday's rules are. Although these questions remain, Monday has the potential to change the criminal justice system in Washington for the better by deterring appeals to racial biases. As the Task Force noted, "Our democracy is based on the rule of law and faith in the fairness of the justice Hopefully, the Monday decision represents the first step toward making the system fairer.