The Washington appellate courts have been on something of a tear in the last 6 months or so, reversing convictions or granting new trials for appeals to racial bias during trials. Along the way, the Washington Supreme Court has imposed new standards for analyzing claims of racial bias that make it clear all courts, lawyers, and parties need to take these issues very seriously.

We’ve covered this issue before; you can find recaps of prior decisions here, here, and here. The most recent decision comes in State v. Bagby the Washington Supreme Court issued a couple of weeks ago. This case involved the conviction of a Black man for residential burglary, fourth degree assault, and harassment of his then-girlfriend for an incident occurring at a fraternity party and threats he made after.

The defendant, Tyler Bagby, is a Black man. During trial, the prosecutor repeatedly asked witnesses to identify the defendant by his “nationality,” even though Bagby was born in the US and was an American citizen. In response to the questions from the prosecutors, Bagby was repeatedly identified as Black or African American, while other witnesses were described as white. The prosecutor also repeatedly referred to the white witnesses as “Good Samaritans” or “citizens.”

Bagby’s identity was not at issue and he never denied he was involved in the relevant incidents. The defendant instead argued self defense and diminished capacity on the basis of intoxication. So it wasn’t clear why the prosecutor repeatedly asked witnesses to identify Bagby by his nationality, race, or ethnicity.

On appeal, the defendant argued that the reference to “nationality” and other references to race evoked racial bias. The Supreme Court agreed by a vote of 9-0 and reversed his conviction. The court reaffirmed that when alleged prosecutorial conduct involves claims of racial bias, the courts must use a different analysis—what the court calls a “heightened” standard to ensure there is no violation of a defendant’s constitutional right to a fair and unbiased trial.

The test is this: when a prosecutor flagrantly or apparently intentionally appeals to racial or ethnic bias in a way that undermines the defendant’s credibility or the presumption of innocence, their conduct is considered per se prejudicial and the defendant’s conviction must be reversed.

Under the “flagrantly or apparently intentionally” standard, the subjective intent of the prosecutor is not relevant. Instead, the analysis is done through an objective lens, what the court calls an objective observer standard. The court emphasized that its concern is with the impact of racial bias, not on a person’s intent.

Using the objective observer test, the court asks whether an objective observer could view the prosecutor’s comments and questions as an appeal to jurors’ potential prejudice, bias, or stereotype in a manner that undermined the defendant’s credibility or the presumption of innocence. The objective observer is one who is aware of the history of race and ethnic discrimination in the US and that implicit, institutional, and unconscious biases in addition to purposeful discrimination have influenced jury verdicts in this state.

In this analysis, factors courts can consider are the context and subject of the questions/comments, the frequency of the remarks, the apparent purpose of them, and whether the comments were based on evidence or reasonable inferences in the record.

The court noted that the objective nature of the test is important because not all appeals to racial prejudice are blatant or intentional but can be as or more prejudicial than blatant appeals to racism:

Like wolves in sheep’s clothing, a careful word here and there can trigger racial bias. Biases are often activated through the use of coded language or racial code words such as phrases or symbols that “play upon race . . . [and] white Americans’ negative views of [B]lack Americans—without explicitly raising the race card.” andré douglas pond cummings, Racial Coding and the Financial Market Crisis, 2011 UTAH L. REV . 141, 217. When prosecutors utilize racially coded language, jurors respond with their own “latent biases.” Praatika Prasad, Note, Implicit Racial Biases in Prosecutorial Summations: Proposing an Integrated Response, 86 FORDHAM L. REV . 3091, 3101 (2018). Coded language often involves themes or euphemisms that evoke a conception of “us” versus “them.” E.g., id. at 3104-09. Terms such as “‘them,’ ‘these people,’ and ‘not like us’” “highlight the difference between the jurors and Black defendants” and suggest that Black defendants are inherently different from white jurors and deserve less sympathy, thus interfering with jurors’ ability to properly weigh evidence. Studies have shown that even the simplest racial cues can trigger implicit biases and affect the way jurors evaluate evidence and “‘subtle manipulations’” of a defendant’s background—such cues can affect juror decision-making more so than even explicit references to race. Prasad, supra, at 3101.

The court noted that by calling attention to Bagby’s “nationality,” which he did on a frequent basis, the prosecutor played into a stereotype that to be Black is foreign while being white is to be American. It primed the all-white jury to pay more attention to the racial differences, which could activate any anti-Black implicit biases the jurors held. It was also completely unnecessary to discuss his “nationality” as there was no dispute as to his identity. His race or nationality did not relate to any relevant fact or issue the jury was to decide.

The court concluded that the objective observer would likely find that the prosecutor’s word choices and themes—his use of the term “nationality,” his overemphasis on Bagby’s race and its juxtaposition against white witnesses, were an apparently intentional attempt to distinguish Bagby based on his race. The sheer volume of comments and questions would likely have made it impossible for the juror to ignore the color of Bagby’s skin nor the stereotype that because he is Black, he was more likely to have committed the crimes he was on trial for.

The lesson from these cases is simple—language matters very much. Lawyers have to think hard about word choice. Which also necessarily means educating themselves about the link between language and racism and unconscious biases.