Prosecutors asked about a Black man’s ‘nationality.’ WA Supreme Court says it showed racial bias

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The Washington state Supreme Court building in Olympia. (Ellen M. Banner / The Seattle Times)

Whitman County prosecutors improperly appealed to jurors’ racial bias when they repeatedly asked witnesses about a Black defendant’s “nationality,” even though the defendant was an American citizen, the Washington state Supreme Court ruled unanimously on Thursday.

Prosecutors also acted improperly by referring to white witnesses as “good Samaritans,” while conspicuously excluding the sole Black witness, even though the Black witness had tried to de-escalate the situation, the Supreme Court found.

The case is the latest in an ongoing effort by the state Supreme Court to try to address systemic racism in the criminal legal system.

In the case, Tyler Terell Bagby was charged with burglary, assault, harassment and malicious mischief, based on a 2018 incident at a fraternity party where, during an argument with his girlfriend, he punched an onlooker.

His lawyers conceded that he had punched the onlooker, but argued that it was self-defense. “The jury found Bagby guilty of residential burglary, fourth degree assault, and harassment but not guilty of malicious mischief,” the court noted.

During the trial held the same year as the incident, Bagby’s identity was not contested. But at least a half dozen times at trial, a prosecutor asked witnesses to identify Bagby’s “nationality.”

Bagby, born in California, is an American citizen. But witnesses inferred questions about his nationality to be in reference to Bagby’s race, to which they responded that he was African American or Black, the court wrote.

“The prosecutor’s ‘othering’ of Tyler before an all-white jury denied him a fair trial,” Travis Stearns, one of Bagby’s attorneys, said Thursday. “Tyler’s case is not an anomaly, as our criminal legal system continues to dehumanize Black men.”

The purpose of the prosecutor’s remarks, the court wrote, must be to emphasize Bagby’s race.

“By calling attention to Bagby’s ‘nationality,’ the prosecutor played into a stereotype that to be American is to be white and to be Black is somehow ‘foreign,'” Justice Raquel Montoya-Lewis wrote for the court. “Here, when the prosecutor continuously referred to Bagby’s nationality, ethnicity, and race, it primed the all-white jury to pay more attention to this racial difference, thereby activating any anti-Black implicit biases they may hold.”

It is not necessary, the court wrote, for the prosecutor to have meant for his remarks to be racially biased. Rather, they must meet the standard of a “flagrant or apparently intentional appeal” to racial bias.

“We are concerned with the impact of racial bias — not a person’s intent,” Montoya-Lewis wrote.

And, in analyzing the impact of the prosecutor’s remarks, the court returned to a standard it set in 2018 and has now used to evaluate prosecutorial misconduct, juror misconduct, jury selection practices and police seizures.

The standard: Could an “objective observer” view the conduct, in this case the prosecutor’s references to nationality and “good Samaritans,” as an appeal to jurors’ racial biases or prejudices? “Objective observers” must be aware of how America’s history of race and ethnic discrimination, while implicit, institutional and unconscious biases, and discrimination have influenced jury verdicts in Washington, the court said.

The court noted the frequency of the prosecutor’s references to “nationality,” and said it could find no purpose for those remarks other than to emphasize Bagby’s race.

During cross examination, the prosecutor also repeatedly asked Bagby about his dog, including whether he cared about it, despite the dog having no relevance to the case.

“Who has a dog for over a year and don’t care about him?” Bagby responded. “Yes, I do.”

“Unfortunately, some people [don’t],” the prosecutor said, “but I’m glad to hear you’re not one of them.”

Four of the nine justices found that this also constituted misconduct, writing that the questions “evoke a harmful racial trope about Black men and their
mistreatment of dogs.”

The Supreme Court vacated Bagby’s convictions and sent the case back to the trial court.

“The prosecutor repeatedly evoked racist tropes and used racially coded language in a manner that cannot fairly be ignored,” Montoya-Lewis wrote. “The objective observer could understand that the sheer volume of comments could have made it impossible for jurors to ignore the color of Bagby’s skin.”

David Gutman: 206-464-2926 or; .