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Washington Supreme Court: Prosecutor’s War on Drugs Comments Denies Fair Trial

The Court’s opinion was issued in an appeal brought by Gregg A. Loughbom. He was convicted by a jury in October 2018 on two counts: delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. He was acquitted on a count of delivery of acetaminophen and hydrocodone. The superior court sentenced Loughbom to 40 months’ prison and 12 months’ community control.

On direct appeal, Loughbom argued that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill-intentioned misconduct. Although it found those repeated statements set the tone for the entire trial, the Court of Appeals found Loughbom was not denied a fair trial. The Washington Supreme Court granted review.

“Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric,” the Court wrote in beginning its analysis in review of Loughbom’s appeal. “We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs,” the Court admonished.

At Loughbom’s one-day trial, the prosecutor asked during jury selection about the “drug problem in Lincoln County.” During opening and closing statements, he said Loughbom’s case represented “another battle in the ongoing war on drugs.” He similarly referenced the “ongoing war on drugs” during his rebuttal argument.

Noting that the issue of prosecutorial references to the war on drugs had not yet been addressed by the Washington Supreme Court, the Court looked at four Court of Appeals decisions and several federal court decisions that found such “similar rhetoric improper” (see opinion for case citations). While those cases were not controlling, the Court found them persuasive. It joined those courts “in rejecting ‘war on drugs’ rhetoric” by the prosecutor during arguments.

Because Loughbom did not object at trial to the prosecutor’s repeated references, he was “deemed to have waived any error, unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice.” State v. Emery, 278 P.3d 653 (Wash. 2012). Reversal is granted for such misconduct only “in a narrow set of cases where we were concerned about the jury drawing improper inferences from the evidence.” In re Pers. Restraint of Phelps, 410 P.3d 1142 (Wash. 2018).

The prosecutor’s rhetoric, the Court found, “was practiced and strategically employed at both ends of Loughbom’s trial.” Even the Court of Appeals found the prosecutor used the war on drugs as “theme.” The Washington Supreme Court stated that remarks that come at the beginning of opening statements and closing arguments must be understood as “a prism through which the jury should view the evidence.”

The State argued that the prosecutor’s comments, “while ill advised, were exceedingly benign,” were “made with reasonable intentions,” and “were well within the acceptable bounds of argument by a prosecutor.” The Court, however, explained that a prosecutor’s “‘reasonable intentions’ are irrelevant because we do not assess a prosecutor’s subjective intent when deciding whether error occurred.” It concluded that “repeated appeals to the war on drugs do not fall within the bounds of appropriate argument that this court has established.”

Thus, the Court found the prejudice from the prosecutor’s comments deprived Loughbom of a fair trial that could not have been cured by an instruction after an objection. The jury was primed to view the trial through the prism of the “drug problem in Lincoln County.” Then, two of the three comments about the war on drugs occurred in closing arguments. “[B]y that point it would have been too late to negate the prejudice that built up over the single-day trial,” according to the Court.

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Related legal case

State v. Loughbom



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