The Washington State Supreme Court: A pleasant judicial contrast

Temple of Justice building, where Washington State’s Supreme Court is located.

As I’m sure is obvious by now, we are still reeling from the United States Supreme Court’s recent turn — not just the Dobbs v. Jackson opinion overturning Roe, but other disappointing decisions as well.

For a pleasant contrast, at least we can turn to our State Supreme Court, particularly since its June 2020 open letter in the wake of the George Floyd killing and protests. In the recent unanimous decision of State v. Zamora, the Court did not mince words in its finding that a prosecutor committed misconduct by appealing to the jurors’ potential racial or ethnic biases, prejudices, or stereotypes during jury selection.

The case arose from the criminal conviction of Joseph Zamora, a Latino person, for assault of a police officer. Before even getting to what transpired during jury selection, the Supreme Court briefly described the outrageous encounter leading to Zamora’s arrest and charges:

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, at approximately 9:30 p.m., Joseph Zamora was walking to his niece’s house when a neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake who indicated he needed to speak with Zamora. Hake quickly became nervous because of Zamora’s demeanor, explaining that Zamora was “looking through” him with eyes the “size of silver dollars.”… Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him. A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him; he had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Turning to the prosecution’s conduct during jury selection, the Court noted:

Grant County Prosecutor Garth Dano began voir dire by introducing the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics, referring at one point to “100,000 people” “illegally” crossing the border each month…. He began asking jurors whether they felt they were closer to choosing a side of “we have [or] we don’t have enough border security.”… He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough [of] what’s called Fentanyl that would have killed 65 million Americans.”

The Court rightly held that Dano committed race-based prosecutorial misconduct:

…this was a prosecution where a citizen’s mistaken report of vehicle prowling led to a violent altercation with police officers that almost resulted in the death of the defendant who was guilty of nothing more than walking while high on drugs. This case was not remotely related to immigration—lawful or unlawful. 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 State argues it had race-neutral reasons for asking these questions. Namely, to gauge the jurors’ opinions on law enforcement generally. Contrary to the State’s assertion, no legitimate, relevant trial purpose supports the prosecutor’s
questions or statements. Rather, 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.”…

Moreover, these remarks and questions were not isolated. The prosecutor asked about undocumented immigration, crime at the border, border security, and undocumented immigrants committing crime no less than 10 times during his one- hour voir dire examination. The prosecutor affirmatively and repeatedly returned to these topics, even asking jurors to “make room” for the idea that undocumented immigrants are criminals and that people have reason to fear them.

The Court concluded that “a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases and purposeful discrimination could understand the prosecutor’s questions and comments as a flagrant or apparently intentional appeal to the jurors’ potential racial or ethnic bias toward Latinxs.”

In a separate concurring opinion, Chief Justice Gonzalez, joined by Justice Montoya-Lewis, further emphasized the intentional and unintentional biases that persist among some residents of Washington against people they perceive as immigrants from countries south of the United States, and specifically admonished Prosecutor Dano for harboring such biases.

It is certainly disappointing — though not surprising — that such biases persist not just in our community as a whole but particularly in officials charged with upholding our laws. But it is also heartening to see continued attempts by our courts to redress such problems.