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The Habeas Citebook: Prosecutorial Misconduct - Header

Washington Supreme Court Announces Adoption of ‘Rule of Automatic Reversal’ When Prosecutor Flagrantly Appeals to Racial and Ethnic Bias During Voir Dire

by Mark Wilson

The Supreme Court of Washington, sitting en banc, announced a new rule for situations involving flagrant appeals to racial and ethnic bias by the prosecution during voir dire and vacated a Hispanic man’s convictions, concluding that the prosecution’s voir dire examination flagrantly “appealed to the jurors’ potential racial or ethnic bias, prejudice, or stereotypes and therefore constituted race based prosecutorial misconduct.”

Someone called police to report a possible vehicle prowler when they saw Joseph Mario Zamora walking to his niece’s house at about 9:30 p.m. on February 5, 2017. There was no actual vehicle prowler in the area.

When Zamora reached his niece’s driveway, police officer Kevin Hake approached, saying he needed to speak with him. Hake quickly became nervous, claiming later that Zamora was “looking through” him with eyes the “size of silver dollars.” Hake grabbed and attempted to restrain Zamora, supposedly fearing that he had a weapon. He did not. They struggled, and eight officers joined the fray, culminating in “what may be described as extreme acts of violence” perpetrated against Zamora. 

Zamora did not have a heartbeat or pulse when responding paramedics arrived to find him restrained by two officers, handcuffed, hog-tied, and face down in the snow. It took seven minutes for paramedics to revive Zamora, and he spent four weeks in a hospital Intensive Care Unit.

Adding insult to injury, Zamora was charged with two counts of third-degree assault of a law enforcement officer. One count was for officer Timothy Welsh, who sustained injuries to his hand from repeatedly punching Zamora in the back of the head. The other count was for officer Hake, who claimed to have suffered a “couple small scratches around (his) hand and wrist” and some bruising – all of which was likely due to beating Zamora unconscious.

“The actions of the police officers involved in the confrontation are alarming,” the Washington Supreme Court later stated. “But the case reached our court, in part, because of the concerning actions of the Grant County prosecutor during jury selection.”

At the outset of voir dire, prosecutor Garth Dano introduced topics of border security, illegal immigration, and crimes committed by undocumented immigrants. He then repeatedly elicited comments and views of potential jurors on these topics. He declared that “100,000 people” are crossing the border “illegally” each month and asked potential jurors if they felt we “have enough border security.” He also asked potential jurors if they had “heard about the recent drug bust down in Nogales, Arizona where they picked up enough ... Fentanyl that would have killed 65 million Americans.”

Inexplicably, defense counsel did not object to any of Dano’s race- and ethnicity-based comments or questions. The trial court expressed concern that defense counsel did not object to the prosecutor’s voir dire examination and asked why. Yet, the court did nothing to stop the prosecutor or to cure the harm his racist examination caused. A jury was seated and ultimately convicted Zamora of both assault charges. He appealed, arguing that his constitutional right to an impartial jury was violated by the prosecutor’s raced-based misconduct during voir dire in which he appealed to ethnic and racial bias and stereotypes.

The Court observed that the Sixth and Fourteenth Amendments to the U.S. Constitution and article I, section 3 and section 22 of the state Constitution guarantee defendants the right to an impartial jury, which includes an unbiased and unprejudiced jury. State v. Davis, 10 P.3d 977 (Wash. 2000). Ordinarily, for a defendant to prevail on a prosecutorial misconduct claim, a defendant who objects to the alleged misconduct on a timely basis must prove that the misconduct “was both improper and prejudicial in the context of the entire trial.” State v. Loughbom, 470 P.3d 499 (Wash. 2020). But when the defendant fails to object, courts apply a heightened prejudice standard on review, requiring the defendant to prove that the claimed misconduct was “so flagrant and ill intentioned that [a jury] instruction would not have cured the [resulting] prejudice.” Id. That is, the defendant must show the misconduct resulted in “incurable prejudice,” the Court stated. 

However, when the allegation of misconduct involves racial bias, courts apply a separate, burden-shifting analysis. When a prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State can prove beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. State v. Monday, 257 P.3d 551 (Wash. 2011). The Court explained that the rationale for the rule announced in Monday is similar to that of the U.S. Supreme Court’s for creating a separate set of standards in cases of alleged racial bias in Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017) (explaining that while all forms of inappropriate bias undermine the trial process, “there is a sound basis to treat racial bias with added precaution”) (The Court held that the Sixth Amendment requires that the no-impeachment rule, which prohibits inquiry into jury deliberations, does not apply where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus in convicting the defendant.).

Turning to the present case, the Court vacated Zamora’s convictions. “During voir dire the prosecutor apparently intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence,” the Court explained and concluded “Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.”

Even under the heightened prejudice standard of Loughbom because of trial counsel’s failure to object, the Court had no problem finding that Zamora easily satisfied this heightened bar. “Because the prosecution is a representative of the State, it is especially damaging to” the constitutional right to an impartial, unbiased and unprejudiced jury “when the prosecutor introduces racial discrimination or bias into the jury system,” the Court stated. “In seeking equal and impartial justice, it is a prosecutor’s duty to see that a defendant’s constitutional rights to a fair trial are not violated.”

Noting that voir dire “is a significant aspect of trial,” the Court explained that “when the jury pool is tainted by race-based prosecutorial misconduct at the early stage of a case, the jury becomes infected in untraceable ways.” See Pena-Rodriguez; Loughbom.

The Court rejected the State’s claim “that the prosecutor’s conduct did not inject race into the case or appeal to racial bias,” finding that “the prosecutor’s questions and remarks implicated the defendant’s ethnicity, and viewed in context, the conduct apparently appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice.”

Similarly, the Court also rejected the State’s argument that deference was owed to defense counsel’s failure to object. “Inaction by defense counsel cannot excuse a prosecutor’s misconduct,” the Court stated. “Defense counsel cannot waive his client’s constitutional right to a fair trial, and we will not skirt the responsibility of upholding a defendant’s constitutional rights because defense counsel failed to appreciate the impropriety of the prosecution’s conduct.”

Noting that “the trial court correctly expressed concern that the prosecutor’s inappropriate questions and remarks were an appeal to ethnic or racial bias,” the Court faulted the lower court for failing to sua sponte cure the violation when defense counsel failed to act. “It is incumbent on the trial courts to protect a defendant’s right to a fair trial, even when defense counsel failed to object to conduct that is flagrantly or apparently intentionally appealing to racial or ethnic bias,” the Court instructed.

“This case had nothing to do with borders or border security. Any mention of border security, immigration, undocumented immigrants, and drug smuggling was wholly irrelevant,” the Court declared. “The apparent purpose of the remarks was to highlight the defendant’s perceived ethnicity and invoke stereotypes that Latinxs are ‘criminally’ and ‘wrongly’ in the country, are involved in criminal activities such as drug smuggling, and pose a threat to the safety of ‘Americans,’” according to the Court. 

The Court noted that it had previously announced a burden-shifting rule and embraced the harmless error standard for race-based prosecutorial misconduct claims in Monday. “When a defendant shows that the prosecutors committed race-based misconduct, the burden shifts to the State to prove the misconduct was harmless beyond a reasonable doubt,” the Monday Court instructed.

But as evidenced by the prosecutor’s behavior in the present case as well as the Court of Appeals affirming Zamora’s convictions, the Court determined that “Monday’s past effort to address race-based prosecutorial misconduct by applying a harmless error standard has proved insufficient to deter such conduct.”

Thus, the Court announced that it is replacing the harmless-error standard set forth in Monday and adopting the “tested and proven rule of automatic reversal,” as follows: “when a prosecutor flagrantly or apparently intentionally appeals to a juror’s potential racial or ethnic prejudice, bias, or stereotypes, the resulting prejudice is incurable and requires reversal. This conclusion is consistent with our constitutional principles and reasoning discussed in Monday.”

Applying the newly announced standard to the present case, the Court held that the “prosecutor … committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and required reversal.”

Accordingly, the Court reversed the Court of Appeals and vacated Zamora’s convictions. See: State v. Zamora, 512 P.3d 512 (Wash. 2022).  



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