Roughly three years ago, the Washington Supreme Court took a bold step toward eliminating appeals to racial bias in criminal trials. In State v. Monday, the Court reversed a first-degree murder conviction supported by videotape evidence of the charged crime and an apparent confession by the defendant because the prosecutor tainted the proceeding by impermissibly injecting race into the trial. Specifically, the prosecutor argued that African-American witnesses had adhered to an anti-snitch code and mimicked some African-American witnesses’ pronunciation of the word “police.” Monday was remarkable because the Court announced a rule putting the burden on the State – not the defendant – to demonstrate beyond a reasonable doubt that a prosecutor’s appeal to racial bias (whether subtle or direct) does not affect the jury’s verdict.
Last week, the Supreme Court significantly limited the reach of Monday. In the Personal Restraint Petition of Gentry, the Court ruled that the burden-shifting framework articulated in Monday does not apply retroactively to collateral attacks on criminal convictions.
Jonathan Lee Gentry (who is African American) was convicted in 1991 of the aggravated first-degree murder of 12 year-old Cassie Holden (who was white) and sentenced to death. Gentry’s trial was one of the earliest and most prominent prosecutions in Washington in which DNA evidence was used to obtain a conviction, along with testimony of jailhouse informants. During the Frye hearing on the admissibility of expert testimony about this DNA evidence, the prosecuting attorney lashed out at defense counsel (who was African American) asking, “Where did you learn your ethics? In Harlem?” At trial, certain witnesses used the N-word in describing a card game during which, according to their testimony, they heard Gentry admit to the murder. DNA experts used the word “Negroid” to describe the characteristics of hairs found on the victim. On direct appeal, Gentry argued that his trial was tainted by racial bias, but the Court affirmed, ruling that Gentry had failed to show prejudice.
In the wake of Monday Gentry brought a second personal restraint petition (his first was unsuccessful) challenging his conviction as tainted by racial bias for many of the same reasons raised in his direct appeal.
In determining whether Monday should apply retroactively, the Court applied the test for retroactive application of a new legal rule developed by the U.S. Supreme Court in Teague v. Lane. Under Teague, the Court explained, a new rule applies retroactively if it falls into one of two categories: (1) it is a substantive rule that places certain behavior “beyond the power of the criminal law-making authority to proscribe” or (2) it is “a watershed rule of criminal procedure ‘implicit in the concept of ordered liberty.’” The latter category – the only one pertinent in Gentry’s PR – “is limited to ‘those new procedures without which the likelihood of an accurate conviction is seriously diminished.’”
Although the Court recognized that Monday announced a new burden-shifting rule – and although Monday was motivated by concern that it was impossible to know whether or how appeals to racial bias affected the verdict – the Court nonetheless held that Monday is not a watershed rule. In reaching this conclusion, the Court observed that, in numerous other cases, that neither it nor the U.S. Supreme Court had recognized a watershed rule. The few lower federal courts that had recognized a watershed rule, the Court noted, had done so in the context of an error involving the burden of proof on an element of a charged crime calling into question the “likelihood of an accurate conviction.” Further, the Court commented, Gentry had failed to point to any case “that retroactively applies a close enough analog to this rule in Monday.”
Even with this ruling, the Court still analyzed Gentry’s claims of prejudice and found them insufficient to reverse his conviction. The only comments found to be improper – the prosecutor’s outburst during the Frye hearing – were held to be harmless because they occurred outside the presence of the jury and did not establish an improper motive in bringing the charges. The Court also explained that the other claimed instances of bias – the use of the N-word in jailhouse informants’ testimony and references to the term “Negroid” in expert DNA testimony – did not appear to be appeals to racial prejudice.
Justice Wiggins agreed with the Court’s Teague analysis but dissented, arguing for a reference hearing to assess whether the death penalty is imposed in Washington disproportionately on the basis of race.
Although the Court’s ultimate ruling on Gentry’s PRP based on Monday appears to be correct, the Court’s reasoning about the retroactive application of Monday under the Teague framework is susceptible to two significant criticisms.
First, it is difficult to square the underpinnings of Monday with the analysis in Gentry. In Gentry, the Court emphasized that Monday did not involve a procedure concerning the burden on an element of a crime. But the Court seems to skip over the reason why such new procedural rules apply retroactively: to ensure the accuracy of a conviction. The reasons the Court announced the burden-shifting framework in Monday and ultimately reversed the murder conviction in that case is because appeals to racial bias are antithetical to the fairness of the judicial process and because the Court could not say that the appeals to racial prejudice “did not affect [the] jury’s work.” In other words, there was no way to know whether the jury voted to convict based on animus or an impartial evaluation of the evidence. It is unclear, then, why Monday did not articulate a new procedural rule that falls squarely within the second Teague category (i.e., “new procedures without which the likelihood of an accurate conviction is seriously diminished”).
Second, there is little force to the Court’s observations that there is a dearth of cases recognizing rules with retroactive effect under Teague and that Gentry had failed to cite any authorities retroactively applying rules analogous to that announced in Monday. These observations do not explain why Monday is without retroactive application. Just because no other court has recognized a particular rule as having retroactive effect does not mean such recognition would be unsound. Our Supreme Court, after all, is responsible for making reasoned judgments about new questions of law.
It seems that with the ruling in Gentry, we are likely to see few future cases applying Monday in the criminal context. It’s clear that Monday is not a proper basis to bring a collateral challenge in the PRP context (and probably not in federal habeas proceedings). One hopes that courts won’t have occasion to apply Monday either at trial or in direct appeals. An open question is whether Monday applies as equally to civil actions as it does to criminal proceedings. But one likewise hopes that courts will not have reason to grapple with that question either.