State v. Bagby

• Court: Washington Supreme Court
• Decided: January 19, 2023
• Docket: 99793-4
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JANUARY 19, 2023 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JANUARY 19, 2023 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 99793-4

v. En Banc

TYLER TERELL BAGBY, Filed: January 19, 2023

Petitioner.

PER CURIAM 1—The court unanimously holds that two elements of the prosecutor’s conduct ob-

jectively constituted a flagrant or apparently ill-intentioned appeal to jurors’ racial bias in a way that

undermined the defendant’s credibility and presumption of innocence. Because the race-based miscon-

duct was so flagrant and ill intentioned that a timely objection and jury instruction could not have cured

resulting prejudice, the errors are per se prejudicial, warranting reversal.

The two elements of the prosecutor’s misconduct constituting reversible error were repeated use

of the term “nationality” to distinguish the defendant, a Black man who is a United States citizen, from

1 This court may issue a per curiam opinion summarizing the votes of the justices in a plurality decision, preceding the lead opinion. Wash. Sup. Ct. Internal R. II-8(B). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

other witnesses, all but one of whom are not Black, and framing of several white witnesses as “Good

Samaritans” while conspicuously excluding the sole Black witness, who notably tried to deescalate the

first incident at issue.

In the lead opinion, four justices—Montoya-Lewis, J., González, C.J., and Yu and Whitener, JJ.—

would additionally hold that the prosecutor committed misconduct by questioning a witness about the

defendant’s dog. However, five justices—Stephens, Johnson, Madsen, Owens, and Gordon McCloud,

JJ.—hold, in a concurring opinion, that the record in this case does not support the conclusion that this

conduct was reversible error.

The decision of the Court of Appeals 2 is reversed, and the case is remanded to the trial court for

a new trial.

2 State v. Bagby, No. 36530-1-III (Wash. Ct. App. April 20, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/365301_unp.pdf.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JANUARY 19, 2023 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JANUARY 19, 2023 ERIN L. LENNON SUPREME COURT CLERK

STATE OF WASHINGTON, ) No. 99793-4 ) Respondent, ) ) v. ) EN BANC ) TYLER TERELL BAGBY, ) ) Filed: January 19, 2023 Petitioner. ) ______________________________ )

MONTOYA-LEWIS, J.—Tyler Terell Bagby was convicted of residential

burglary, fourth degree assault, and harassment. At his trial, the prosecutor

repeatedly asked witnesses to identify Bagby by his “nationality.” All the witnesses

responded by identifying Bagby as either Black or African-American. Bagby was

born in the United States; he is an American citizen; and his race, ethnicity, and

identity were not at issue in this case. We granted review to address whether a

prosecutor’s repeated use of the word “nationality,” among other statements, to

distinguish a defendant from other witnesses evokes racial bias in a manner that

constitutes prosecutorial misconduct and prejudices the trial. We hold that it does.

The prosecutor’s use of the term “nationality” and other comments For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

unnecessarily emphasized Bagby’s race during his trial. Here, we apply the

heightened standard for race-based prosecutorial misconduct claims and consider

the facts through the lens of an objective observer in light of our recent decision in

State v. Zamora.1 We conclude the prosecutor’s conduct in Bagby’s case was a

flagrant or apparently intentional appeal to racial bias in a way that undermined

Bagby’s credibility and his presumption of innocence. The prosecutor’s improper

conduct constituted prosecutorial misconduct that is per se prejudicial. Accordingly,

we reverse and remand to the trial court for further proceedings consistent with this

opinion.

FACTUAL BACKGROUND

A. The Incident

In the late-evening hours of February 3, 2018, Tyler Bagby went to a fraternity

party with his three friends: Solomon Cooper, Shyla Roberson, and Kailah

Crisostomo. At the time, the four were enrolled students at nearby universities.

Crisostomo and Bagby had been dating for a couple of weeks, but that night was the

first time Crisostomo met Roberson and Cooper. The group spent the evening

drinking at Bagby’s home before walking down the street to a crowded fraternity

party where they continued to drink, dance, and socialize.

Sometime after midnight in the early morning hours of February 4,

1 199 Wn.2d 698, 717, 512 P.3d 512 (2022). 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

Crisostomo separated from Bagby at the party. When she did not return, Bagby

asked Roberson to check on her. Shortly thereafter, Roberson found Crisostomo in

the fraternity’s gender-neutral bathroom crying hysterically and saying she did not

want to go back to Bagby. In response, Roberson offered to let Crisostomo come

back to her home.

When neither of the women returned, Bagby became concerned and went to

look for them. He found them in the same bathroom stall and asked them what was

going on. When Roberson insisted that he leave and that she would take Crisostomo

home, Bagby became angry and began to yell and shake the stall door. When Austin

Davis, a bystander, intervened and attempted to get Bagby to leave the bathroom,

Bagby punched Davis, knocking him unconscious. Cooper eventually came to the

bathroom and removed Bagby from the party. Two witnesses, Sabrina Manzo and

Leann Griffith, were present in the bathroom as these events unfolded.

After Bagby and Cooper left the party, Roberson and Crisostomo also left and

walked toward Roberson’s apartment. While the two women were walking,

Roberson called the police to report what had occurred at the fraternity party. Shortly

after they arrived at Roberson’s apartment, Crisostomo fell asleep on the couch.

Over the next 40 minutes, Bagby attempted to contact Roberson by calling her and

sending her messages through social media. Eventually, he sent her an insulting

message and then left the following voice message:

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

(Inaudible) when I see you I will break your fucking jaw, because you just made me look like a fucking (inaudible) with my friends and I’m not bullshitting with you. Get a restraining order against me now, because again when I come to you, I will fuck you up, when I see you.

1 Verbatim Rep. of Proc. (VRP) (Nov. 26, 2018) at 140.

Approximately 10 minutes after Bagby left the voice message, he arrived at

Roberson’s apartment, forced the door open, entered the apartment, and began

yelling at Crisostomo. Roberson called the police for the second time while yelling

for Bagby to get out. As Bagby attempted to talk to Crisostomo, she woke up and

retreated to the bedroom.

Two others—Elizabeth Nelson, who was walking past Roberson’s apartment

building, and Daniel Robinett, who lived in the unit above Roberson’s—heard

shouting and went to Roberson’s apartment to investigate. Police officers arrived

several minutes later and found Bagby standing outside of the apartment building,

where they arrested him.

B. Trial

Bagby was charged with residential burglary, fourth degree assault, third

degree malicious mischief, and harassment. The case was tried to a jury over two

days. Bagby was the only Black person at his trial other than his friend, Cooper. The

judge, the lawyers, nearly all of the witnesses, and the entire jury panel were white.

At trial, the prosecutor called several witnesses to testify about what they saw

during the incidents that occurred on February 4. In doing so, the prosecutor 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

repeatedly asked witnesses to identify Bagby by his “nationality.”

For example, the prosecutor asked Manzo, “And the gentleman talking to the

women in the stall trying to get his girlfriend out, what was his nationality?” Id. at

79. Manzo identified him as “African American.” Id. In response, the prosecutor

proceeded, “[A]nd then the gentleman that came up to talk to him, what was his

nationality?” to which she responded, “He looked white.” Id. at 80. The prosecutor

proceeded to refer to the individuals identified as “the white guy” and “the [B]lack

guy” during his direct examination of Manzo and continued to ask about the

“nationality” of “those men” as Manzo described additional individuals involved.

Id. at 79-81.

The prosecutor similarly questioned Griffith, “Did you ever pay attention to

his nationality or anything else?” Id. at 94. When she responded no, the prosecutor

clarified that he was asking about “[e]thnicity.” Id. In response, she added, “He was

[B]lack, I think.” Id. Later, Griffith was asked if she “recognize[d] the ethnicity of

that guy?” in reference to Davis. Id. at 95. Griffith responded, “He was white.” Id.

Then, she was asked to clarify if that was “the person that was talking to the African

American man?” Id. at 96. The prosecutor then clarified a second time, “And again,

we’re talking, the white guy did not push[,] touch[, or] hit the [B]lack guy he was

talking to?”, and Griffith responded in the affirmative. Id. at 97. The prosecutor

continued to ask witnesses to describe what they saw by identifying the people

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

involved by their race over a dozen times.

Throughout trial, neither party objected to questions or remarks about

nationality, race, or ethnicity. Defense counsel also asked the witnesses to refer to

the individuals involved by their nationality when describing what had occurred the

night of the incidents. Both the prosecutor and defense counsel asked the witnesses

about other individuals involved in the incidents using other identifying

characteristics, such as hair color. Davis was frequently referred to as the “guy with

the red hair.” Id. at 88, 89, 103, 104, 121. But, aside from the prosecutor’s questions

about his “nationality,” Bagby’s citizenship status was not part of the facts of the

case.2 From the start of trial, Bagby’s identity was not at issue and he did not deny

that he was the person involved in the relevant incidents. Rather the defense’s theory

at trial was self defense and diminished capacity by voluntary intoxication. The only

issue at trial was whether his conduct constituted a crime.

On cross-examination, the prosecutor also questioned Bagby at length about

his relationship with his dog. The prosecutor began by asking Bagby if Roberson

had ever watched his dog for him, and then proceeded:

[STATE]: How long have you had that dog? [BAGBY]: I got my dog in August of 2017, so that makes him about a year and a half now, his birthday is June 11th. [STATE]: So, he would have been a puppy when she knew him? [BAGBY]: Yes.

2 Bagby is an American citizen. He testified that he was born in California. 1 VRP (Nov. 27, 2018) at 220. 6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

[STATE]: For six months? [BAGBY]: That’s [why] she watched him. [STATE]: Okay. All right. Still have your dog? MR. BAGBY: Yes, I do. [STATE]: Love him? [BAGBY]: Of course. [STATE]: Care about him deeply? [BAGBY]: Who has a dog for over a year and don’t care about him? Yes, I do. [STATE]: Unfortunately, some people [don’t]; but I’m glad to hear you’re not one of them.

2 VRP (Nov. 27, 2018) at 261-62. The prosecutor’s fixation on whether Bagby cared

about his dog was peculiar considering that there was no dog involved at the incident

at the party or at Roberson’s apartment and that Bagby’s dog was irrelevant to the

events that occurred that night.

In closing arguments, the prosecutor framed his argument around the theme,

“This is a case with a bunch of [G]ood [S]amaritans. Mr. Bagby wasn’t one of them.”

Id. at 306-07. He proceeded to identify each witness one by one—Roberson, Davis,

Manzo, Griffith, Nelson, and Robinett—as “[G]ood [S]amaritans.” Id. at 306-08.

The prosecutor did not, however, identify Cooper—the person who helped remove

Bagby from the party and who tried to deescalate the situation—as a Good

Samaritan. Cooper, like Bagby, is Black. 1 VRP (Nov. 27, 2018) at 232. The

prosecutor described those other witnesses as “just regular folks who are going about

their day hoping to have a good time at the party.” 2 VRP (Nov. 27, 2018) at 352.

The prosecutor also repeatedly referred to Nelson and Robinett, two white

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

witnesses, as “citizens,” despite a lack of evidence in the record or other discussion

regarding their citizenship status:

Then you go on to Ms. Roberson’s apartment . . . . After [Bagby] kicks in the door and she’s screaming get out, get out of my house, two other citizens hear; one citizen from upstairs, as her neighbor upstairs, they didn’t know each other. . . . [Nelson and Robinett] both heard it. They were both concerned. And as [G]ood [S]amaritans they as good citizens they went on down there and tried to get Mr. Bagby to leave.

Id. at 308.

The jury found Bagby guilty of residential burglary, fourth degree assault, and

harassment but not guilty of malicious mischief. The trial court imposed a sentence

within the standard range.

C. Procedural History

Bagby appealed his convictions. He argued the prosecutor’s use of race and

the term “nationality” evoked racial bias in a manner that constituted prosecutorial

misconduct and negatively impacted his trial, requiring reversal of his convictions.

The State conceded that its use of the term “nationality” was incorrect but argued

that it was not an intentional appeal to racial bias. The State reasoned that raising the

issue of race was necessary and appropriate to help the witnesses who did not know

Bagby to identify him. Thus, the State claimed, such questioning did not rise to

prosecutorial misconduct, and even if it had, the error would have been harmless in

light of the substantial evidence against Bagby.

The Court of Appeals rejected Bagby’s arguments and affirmed the trial court. 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

Although the court cited the test for race-based prosecutorial misconduct from State

v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), 3 it focused on whether Bagby had

successfully overcome his failure to timely object at trial. The Court of Appeals

reasoned this burden required Bagby to demonstrate that the prosecutor’s conduct

was so “flagrant and ill intentioned” that a curative instruction would not have

alleviated the resulting prejudice. State v. Bagby, No. 36530-1-III, slip op. at 8

(Wash. Ct. App. Apr. 20, 2021) (unpublished),

https://www.courts.wa.gov/opinions/pdf/365301_unp.pdf. In considering whether

the prosecutor had appealed to racial bias, the Court of Appeals reasoned the

prosecutor had misused the term “nationality” in an attempt to establish Bagby’s

identity and that questions about Bagby’s dog were merely “awkward” attempts to

build rapport during questioning. Id. at 10. Ultimately, the court concluded that such

conduct did not play into racial bias when viewed in context and so the prosecutor’s

actions did not constitute “flagrant and ill-intentioned” misconduct. The court also

determined that Bagby’s failure to object during trial precluded any relief.

Bagby petitioned for review in this court, renewing his previous arguments.

We granted review and accepted briefs of amici curiae filed in support of Bagby

3 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, their conduct is considered per se prejudicial, and reversal of the defendant’s convictions is required. Zamora, 199 Wn.2d at 709 (citing Monday, 171 Wn.2d at 680). 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

from the Fred T. Korematsu Center for Law and Equality as well as the Black Law

Students Associations of the University of Washington and Gonzaga University.

ANALYSIS

I. The Right to an Impartial Jury and Prosecutorial Misconduct Claims

A criminal defendant is guaranteed the right to a fair trial by an impartial jury

under the Sixth and Fourteenth Amendments to the United States Constitution as

well as article I, section 22 of the Washington State Constitution. The promise of an

impartial jury requires that the jury be unbiased and unprejudiced. State v. Berhe,

193 Wn.2d 647, 658, 444 P.3d 1172 (2019) (citing Alexson v. Pierce County, 186

Wash. 188, 193, 57 P.2d 318 (1936)). “[A]llowing bias or prejudice by even one

juror to be a factor in the verdict violates a defendant’s constitutional rights and

undermines the public’s faith in the fairness of our judicial system.” Id. A defendant

is deprived of their right to an impartial jury “when explicit or implicit racial bias is

a factor in a jury’s verdict.” Id. at 657. As the United States Supreme Court has also

acknowledged, permitting racial prejudice in the jury system damages “‘both the fact

and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise

of power by the State.’” Peña-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct. 855,

868, 197 L. Ed. 2d 107 (2017) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

Ct. 1364, 113 L. Ed. 2d 411 (1991)).

As we have previously and repeatedly acknowledged, prosecutors play a

special role in ensuring the integrity of our justice system. They not only serve in a

quasi-judicial role as an officer of the court but they also serve as a representative of

the people with the duty to seek impartial justice for both the guilty and the innocent.

Monday, 171 Wn.2d at 676 (citing State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500

(1956)). Thus, defendants are among the people the prosecutor represents, and, as

such, prosecutors have a special duty to ensure that the defendant’s rights to a fair

trial are not violated. Id. A defendant’s right to an impartial jury under article I,

section 22 of the Washington State Constitution is “gravely violate[d] . . . when the

prosecutor resorts to racist argument and appeals to racial stereotypes or racial bias

to achieve convictions”—such convictions undermine the integrity of our entire

criminal justice system. Id. at 676, 680.

Generally, a defendant alleging prosecutorial misconduct must make a timely

objection and demonstrate that “the prosecutor’s ‘conduct was both improper and

prejudicial in the context of the entire trial’” for a reversal. Zamora, 199 Wn.2d at

708 (internal quotation marks omitted) (quoting State v. Loughbom, 196 Wn.2d 64,

70, 470 P.3d 499 (2020)). Under this test, “the prosecutor’s improper comments are

prejudicial ‘only where there is a substantial likelihood the misconduct affected the

jury’s verdict.’” Monday, 171 Wn.2d at 675 (emphasis and internal quotation marks

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

omitted) (quoting State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007)). If the

defense fails to timely object to the claimed misconduct, then reversal is not required

unless the defendant can show that “the prosecutor’s improper and prejudicial

conduct was ‘so flagrant and ill intentioned that [a jury] instruction would not have

cured the [resulting] prejudice.’” Zamora, 199 Wn.2d at 709 (emphasis added)

(alterations in original) (internal quotation marks omitted) (quoting Loughbom, 196

Wn.2d at 70).

However, we look to a different test when the alleged misconduct involves

claims of racial bias. The standard for race-based prosecutorial misconduct is

heightened to ensure there is no constitutional violation. See Monday, 171 Wn.2d at

680. In this context, the test is as follows: 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, their improper conduct is considered

per se prejudicial, and reversal of the defendant’s convictions is required. Zamora,

199 Wn.2d at 715; see Monday, 171 Wn.2d at 680.

The parties in this case have similarly framed the primary issue as a question

of whether the prosecutor’s use of the term “nationality,” among other comments,

constitutes “flagrant and ill-intentioned” misconduct, relying on language that

comes from the test for analyzing general prosecutorial misconduct claims. The

theme of intentionality plays a heavy role in their analysis. Bagby argues the

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

prosecutor intentionally used the term “nationality” to draw the jury’s attention to

Bagby’s race to evoke racial biases against Black defendants. The State counters that

the prosecutor’s remarks cannot be considered “ill intentioned” because the purpose

of the prosecutor’s remarks was merely to assist witnesses to identify Bagby. The

Court of Appeals similarly centered its analysis on the prosecutor’s claimed intent—

allowing witnesses to identify Bagby and building rapport—and ultimately

concluded that the prosecutor’s questions did not reflect racism or stereotypes in a

manner that constituted “flagrant or ill-intentioned misconduct.” Bagby, No. 36530-

1-III, slip op. at 10-11.

However, the requirement to demonstrate that a prosecutor’s conduct is

“flagrant and ill intentioned” is distinct from the “flagrant or apparently intentional”

standard we declared in Monday. Zamora, 199 Wn.2d at 709; In re Pers. Restraint

of Sandoval, 189 Wn.2d 811, 832-34, 408 P.3d 675 (2018) (applying the different

standards when analyzing the prosecutor’s racial comments versus nonracial

comments). In this case, the parties and the Court of Appeals erred by anchoring

their analyses to the “flagrant and ill-intentioned” standard that stems from general

prosecutorial misconduct cases. We take this opportunity to clarify and reiterate that,

after Monday, prosecutorial misconduct claims involving racial bias are controlled

by the “flagrant or apparently intentional” standard. 171 Wn.2d at 680. Thus, to

prevail on a claim of race-based prosecutorial misconduct, the defendant must

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

demonstrate that the prosecutor’s conduct was both improper and prejudicial by

showing that they flagrantly or apparently intentionally appealed to racial bias in a

manner that undermined the defendant’s credibility or the presumption of innocence.

Id.; Zamora, 199 Wn.2d at 709. If the prosecutor’s conduct flagrantly or apparently

intentionally appealed to racial or ethnic bias, then their improper conduct is

considered per se prejudicial and reversal is required. Zamora, 199 Wn.2d at 715.

Most recently, we applied this standard in Zamora, a case involving a

defendant of Latinx ethnicity and United States citizenship. Id. at 713 (majority),

723 (Gonzalez, C.J., concurring). During the one-hour voir dire examination, the

prosecutor asked potential jurors at least 10 times about their views on unauthorized

immigration, crime at the border, and border security, and he continually returned to

these topics throughout the questioning. Id. at 719. The nature of the facts and the

underlying alleged crime had nothing to do with immigration or border security. Id.

We applied the “flagrant or apparently intentional” standard and determined the

remarks about immigration and border security were irrelevant and unnecessarily

politicized jury selection. Id. at 709, 714. Although the prosecutor’s conduct did not

include an express mention of the defendant’s ethnicity as Latinx, we concluded that

when viewed in context, the prosecutor improperly linked the defendant’s ethnicity

to jurors’ potential racial and ethnic bias, stereotypes, and prejudices about people

of Latinx descent. Id. at 715.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

Bagby alleges the prosecutor tied the case to Bagby’s nationality, race, and

ethnicity through his repeated questioning about those topics. Accordingly, we apply

the heightened “flagrant or apparently intentional” standard to Bagby’s case to

further examine whether the prosecutor’s reliance on nationality, race, and ethnicity

was improper and constituted prosecutorial misconduct. Id. at 709; Monday, 171

Wn.2d at 680.

II. Intent and the Objective Observer Standard

The State argues we should conclude the prosecutor’s questions and

comments were not improper because the prosecutor’s conduct was race neutral and

not intentionally designed to discredit Bagby based on his race. This argument calls

for an evaluation of what was in the mind of the prosecutor to determine whether

they “flagrantly or apparently intentionally” appealed to jurors’ racial bias.

Effectively, the State’s argument requires that we interpret “flagrantly or apparently

intentional” appeals to jurors’ racial bias using a subjective intent-based standard.

However, subjective intent is not considered in race-based prosecutorial

misconduct claims. Zamora, 199 Wn.2d at 716 (quoting Loughbom, 196 Wn.2d at

76). The question of whether a prosecutor flagrantly or apparently appealed to

jurors’ racial bias is analyzed using an objective lens. Id. at 717-18. This is consistent

with our approach in general prosecutorial misconduct claims; in that context, we

have stated that the prosecutor’s “‘reasonable intentions’ are irrelevant because we

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

do not assess a prosecutor’s subjective intent when deciding whether error

occurred.” Loughbom, 196 Wn.2d at 76 (citing State v. Walker, 182 Wn.2d 463, 478,

341 P.3d 976 (2015)). Relying on an inquiry based on the prosecutor’s intent would

fail to adequately recognize how both explicit and implicit racial bias can undermine

the integrity and fairness of a jury’s verdict.

First, focusing on the prosecutor’s subjective intent would fail to detect any

implicit biases potentially at play. As we acknowledged in Berhe,

[R]acial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify. Due to social pressures, many who consciously hold racially biased views are unlikely to admit to doing so. Meanwhile, implicit racial bias exists at the unconscious level, where it can influence our decisions without our awareness.

193 Wn.2d at 657. It is not possible for courts to “simply ask the person about [their

implicit biases] and assess the credibility of [their] response because ‘people are

rarely aware of the actual reasons for their discrimination and will genuinely believe

the race-neutral reason they create to mask it.’” Id. at 663-64 (citing State v.

Saintcalle, 178 Wn.2d 34, 49, 309 P.3d 326 (2013) (plurality opinion)). Even if a

court were to ask a prosecutor, they would unlikely acknowledge, or perhaps even

know, whether their conduct involved their implicit biases. Thus, any analysis of

prosecutorial misconduct that relies on subjective intent would likely require

egregious and explicit bias in order for the courts to detect it. See id. at 664.

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

Second, focusing on the prosecutor’s intent also ignores the impact of racial

bias on the jury even where it plays a significant role. See id. In practice, a finding

that the prosecutor did not actually intend to discriminate would end the inquiry

without judicial review of whether the prosecutor’s conduct implicitly influenced

the jury to improperly consider race. Id. Such a result would inhibit our courts in

their duty to “be vigilant of conduct that appears to appeal to racial or ethnic bias,

even when not expressly referencing race or ethnicity.” Zamora, 199 Wn.2d at 714.

For these reasons, relying on an inquiry based on the prosecutor’s subjective intent

would unlikely correct the pervasive evils of all forms of racial bias. See Berhe, 193

Wn.2d at 664.

Therefore, in contrast to a subjective intent perspective, we apply the

objective observer standard when analyzing claims of prosecutorial misconduct

involving racial bias.4 Zamora, 199 Wn.2d at 717-18. We are concerned with the

impact of racial bias—not a person’s intent. Accordingly, to determine whether the

prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to

jurors’ potential racial bias, we ask whether an objective observer 5 could view the

4 We have adopted the objective observer standard to evaluate race-based juror misconduct, Berhe, 193 Wn.2d at 665, as well as jury selection practices. State v. Jefferson, 192 Wn.2d 225, 249-50, 429 P.3d 467 (2018) (plurality opinion); see GR 37(f). We extended this standard to include claims of prosecutorial misconduct involving racial bias in Zamora, 199 Wn.2d at 717-18. 5 An “objective observer” is an individual who is aware of the history of race and ethnic discrimination in the United States and that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State. Berhe, Wn.2d at 664-65 (quoting GR 37(f)). 17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

prosecutor’s questions and comments as an appeal to jurors’ potential prejudice,

bias, or stereotypes in a manner that undermined the defendant’s credibility or the

presumption of innocence.6 Id.

III. Applying the Objective Observer Standard to Bagby’s Case

With this analysis, we conclude that the prosecutor’s conduct apparently

appealed to racial bias and violated Bagby’s right to a fair trial. Under this objective

observer standard, we consider the content and subject of the statements, the

frequency of the remarks, the apparent purpose of the statements, and whether the

comments were based on evidence or reasonable inferences in the record. Zamora,

199 Wn.2d at 718-19; see Monday, 171 Wn.2d at 678.

In Zamora, the content and subject of the prosecutor’s statements revolved

around unauthorized immigration, crime at the border, and border security. Zamora,

199 Wn.2d at 719. The remarks were not one-off, isolated incidents but, rather, were

frequent and repeated. Id. Within a one-hour time frame, the prosecutor returned to

those topics no less than 10 times. Id. The case brought against Zamora—who was

on trial for allegedly assaulting a police officer, despite being beaten nearly to

death—was not remotely related to those topics, as border security, drug smuggling,

or immigration could not legitimately be tied to any evidence in the record. Id. We

6 The concept of an “objective observer” is consistent with the language of “apparently intentional” because the operative word “apparently” removes the focus from the actor’s subjective viewpoint and shifts it to a third-party viewer to whom the intent is apparent. 18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

concluded the apparent purpose of the prosecutor’s remarks was to highlight the

defendant’s perceived ethnicity and link it to the worst kinds of racist stereotypes

that the prosecutor had introduced about the Latinx community. Id.

Here, we apply the same framework to examine the prosecutor’s statements

in Bagby’s case: we consider (1) the content and subject of the questions and

comments, (2) the frequency of the remarks, (3) the apparent purpose of the

statements, and (4) whether the comments were based on evidence or reasonable

inferences in the record. Zamora, 199 Wn.2d at 718-19; see Monday, 171 Wn.2d at

678.

We analyze these factors with an understanding about the nature of racial bias

as it pertains to nationality and race. See Berhe, 193 Wn.2d at 664-65 (quoting GR

27(f)). As we have acknowledged, “Not all appeals to racial prejudice are

blatant. . . . Like wolves in sheep’s clothing, a careful word here and there can

trigger racial bias.” Monday, 171 Wn.2d at 678. 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:

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

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. Id. at

3108 (footnotes omitted); Mikah K. Thompson, Bias on Trial: Toward an Open

Discussion of Racial Stereotypes in the Courtroom, 2018 MICH. ST. L. REV. 1243,

1257 (2018). 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. 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.” See Claire

Jean Kim, President Obama and the Polymorphous “Other” in U.S. Political

Discourse, 18 ASIAN AM. L.J. 165, 168, 170 (2011).

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. First, the

prosecutor asked nearly every witness about Bagby’s nationality. Although Bagby’s

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

“nationality” is American, all of the witnesses responded that he is African-

American or Black, having interpreted the prosecutor’s question as referring to

Bagby’s race. This not only conflated the distinct concepts but also drew needless

attention to the defendant’s race. Also, at one point, the State asked a witness, “And

the defendant punched the white guy that was talking to him?” 1 VRP (Nov. 26,

2018) at 81. With another witness, the prosecutor reiterated, “And again, we’re

talking, the white guy did not push[,] touch[, or] hit the [B]lack guy he was talking

to?” Id. at 97. Identifying Bagby as the Black man and Davis as the white man in

opposition to one another in this manner further emphasizes the idea of a racially

charged “us” versus “them” mentality. See Prasad, supra, at 3107-08. Creating this

racial distance in which Bagby, identified as the Black man, as the aggressor, primes

the jury to consider the incident through that lens. See id. Additionally, in contrast

to questions about Bagby’s nationality, the prosecutor repeatedly used the term

“citizens” to describe two white witnesses. 1 VRP (Nov. 26, 2018) at 10; 2 VRP

(Nov. 27, 2018) at 308. Referring to citizenship and nationality in this manner further

associated whiteness with being American and Blackness as un-American. See Kim,

supra, at 168-70. The prosecutor’s use of racial identifiers and frequent

juxtapositioning of Black versus white further drew attention to Bagby’s race as a

factor in the trial.

Second, the State referred to Bagby’s nationality and race frequently. The

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

State questioned witnesses about Bagby’s “nationality” at least half a dozen times.

1 VRP (Nov. 26, 2018) at 79, 80, 94, 96, 97. The State also asked the witnesses to

identify Bagby and other witnesses by their race over a dozen times. Thus, the

number of times Bagby’s race is brought up was not an isolated incident. Monday,

171 Wn.2d at 678.

Third, the apparent purpose of the State’s use of the term “nationality” can

be understood only as a way to emphasize Bagby’s race. The State concedes that the

prosecutor misused the term “nationality.” However, the prosecutor’s use of a more

accurate term such as “ethnicity” or “race” 7 would have had the same result as it did

here, where the prosecutor questioned the witnesses in a manner that elicited a

reference to Bagby’s race, thus repeatedly highlighting his race throughout trial. The

fact that the prosecutor also used the term “nationality” to question witnesses about

Davis’s race does not minimize the impact of the repeated reference to Bagby’s race

throughout trial. This is simply because white Americans do not experience the same

type of persistent negative stereotypes, biases, and prejudices that plague Black

7 “Nationality” is defined as “[t]he relationship between a citizen of a country and the country itself, customarily involving allegiance by the citizen and protection by the state,” and membership in a country, often citizenship status. BLACK’S LAW DICTIONARY 1234 (11th ed. 2019). “Race” is defined as “any one of the groups that humans are often divided into based on physical traits regarded as common among people of shared ancestry.” MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/race (last visited Jan. 9, 2023). “Ethnicity” is “a particular ethnic affiliation of group.” MERRIAM-WEBSTER.COM, https://www.merriam- webster.com/dictionary/ethnicity (last visited Jan. 9, 2023). Generally, race focuses on physical traits, while ethnicity is concerned with a group’s cultural identity. 22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

communities in this country. See Letter from Wash. State Sup. Ct. to Members of

Judiciary & Legal Cmty. (June 4, 2020),

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Ju

diciary%20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7].

Fourth, the apparent purpose of the remarks about race and nationality was

not to prove a relevant fact nor was it based on evidence in the record. Bagby is an

American—his citizenship had absolutely nothing to do with the crimes he was

charged with or the facts of the case. The State argues the purpose behind asking

witnesses about Bagby’s race was to help witnesses identify participants in the

incident. However, the record does not support this explanation because Bagby’s

identity was not at issue in this case and he did not deny that he was the person

involved in the relevant incidents; the only issue at trial was whether his actions

constituted a crime. Moreover, the prosecutor should have used different methods of

questioning to allow witnesses to identify Bagby and other witnesses using

characteristics other than race. For instance, the prosecutor and defense counsel

frequently referred to Davis by his hair color. The witnesses should have been posed

broader questions to allow them to identify Bagby by numerous other identifying

characteristics. Bagby’s race had nothing to do with the crimes he was charged with

or the facts of the case, and his race was not necessary to identify him since he had

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

conceded his involvement in the events underlying this case. Consequently, the

apparent purpose of the prosecutor’s remarks can only be explained as a method to

emphasize Bagby’s race.

The pattern of treating white witnesses differently from Black witnesses

continued in closing arguments when the prosecutor framed his arguments around

the theme of “[t]his is a case with a bunch of [G]ood [S]amaritans. Mr. Bagby wasn’t

one of them.” 2 VRP (Nov. 27, 2018) at 306-07. He identified Roberson, Davis,

Manzo, Griffith, Nelson, and Robinett as the Good Samaritans. The only witness the

prosecutor did not identify as a Good Samaritan was Cooper, who was responsible

for deescalating the situation in the fraternity bathroom and removing Bagby from

the party. Cooper was the only Black witness. Like the remarks about nationality

and race, the prosecutor repeatedly used the term “[G]ood [S]amaritan.” Id. at 306-

07. He did not use the term once in passing but deliberately singled out each white

witness, one by one, identified them by name, and referred to each person as a good

Samaritan. There was no apparent purpose based on the evidence in the record for

why Cooper should have been singled out and excluded as a Good Samaritan.

Compared to some of the other witnesses who were merely passive bystanders,

Cooper located his friend as soon as he heard what had occurred in the bathroom,

went there to deescalate the situation, and physically removed Bagby from the

fraternity house. The only aspect that distinguishes him from the other witnesses is

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

the color of his skin. This is yet another example of how the prosecutor used subtle

language to signal to the jury positive associations toward the white witnesses in

juxtaposition with the one Black witness and the Black defendant involved in this

case.

Additionally, the prosecutor continued to draw attention to Bagby’s race

through his questioning about Bagby’s dog. Like the other actions by the prosecutor,

an objective observer could view this line of questioning as an appeal to racial bias,

given the content of the remarks, the frequency, the meager connection to the

evidence, and the apparent purpose. Zamora, 199 Wn.2d at 717-18. At the start of

Bagby’s cross examination, the prosecutor asked him whether he loved his dog.

When Bagby replied that he did love his dog, the prosecutor reiterated the question

by asking whether he “[c]are[d] about him deeply.” 2 VRP (Nov. 27, 2018) at 262.

When Bagby assured him that he did, the prosecutor then responded with the

statement, “Unfortunately, some people [don’t]; but I’m glad to hear you’re not one

of them.” Id. The prosecutor even asked Bagby whether he still has his dog, knowing

that the dog was just a year and a half old. Id. at 261. During opening remarks, the

prosecutor also stated that Davis, the man who Bagby had punched, intervened

during the bathroom incident even though “he doesn’t have a dog in the fight.” 1

VRP (Nov. 26, 2018) at 13. Like the frequent references to nationality and race, the

prosecutor’s repeated follow-up questions about Bagby’s dog cannot be dismissed

25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

as a one-off comment.

The concurrence argues that the prosecutor inquired about dogs to

demonstrate the relationship between Bagby and the victim and to show that Bagby

trusted her enough to leave the dog with her for a short period of time. Thus, the

concurrence states that the purpose of raising questions about the dog was to

establish the credibility of a witness, not to prime the jury toward any racist

inferences. However, the questioning about Bagby’s dog was not based on relevant

evidence in the record. No evidence about a dog was ever introduced at Bagby’s

trial; rather, this part of the record raises and connects Bagby to dogs for no apparent

reason; if there was such a reason, as the concurrence suggests, that reason would

have been identified and argued before the jury. The charges of burglary, assault,

malicious mischief, and harassment did not involve a dog whatsoever.

As the concurrences note, the State asserts that it questioned Bagby about his

dog ownership in an effort to demonstrate Roberson’s credibility by suggesting that

her friendship with Bagby must have been strong for him to have entrusted her with

caring for his dog in the past. The State’s assertion does not explain why it would be

relevant to repeatedly ask Bagby about his love of the dog or whether he even still

has the dog. It is difficult to explain this decision by the prosecutor to ask about the

dog on multiple occasions when it had no relevance to the charges or facts of the

26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

case whatsoever, nor can we conclude that the prosecutor’s reasoning is based on a

reasonable inference from the record.

As we have explained, under the objective observer standard, the inquiry is

not about the prosecutor’s claimed subjective intent to bolster the credibility of

another witness; rather, we look to whether the prosecutor flagrantly or apparently

intentionally appealed to racial bias in a way that undermines the defendant’s

credibility or the presumption of innocence. Zamora, 199 Wn.2d at 715; see

Monday, 171 Wn.2d at 680. It is worth noting, stories about Michael Vick—a highly

prominent Black former football quarterback, who was convicted for dog fighting—

are still in the public consciousness. 8 Ann Linder, The Black Man’s Dog: The Social

Context of Breed Specific Legislation, 25 ANIMAL L. 51, 57-68 (2018) (discussing

deep-seated prejudices involving dogs and Black and Latinx families). The

prosecutor likely primed the jury to recall imagery associated with this story by

commenting, “Unfortunately, some people [don’t]” love their dogs. 2 VRP (Nov.

27, 2018) at 262. The jury was also likely primed to recall this story in light of the

prosecutor’s repeated mentioning and questioning of both Cooper and Bagby about

Cooper’s experience as a Washington State University football player. The questions

8 This is where the concurrence misses the point about the relevance of the prosecution saying “he doesn’t have a dog in the fight.” 1 VRP (Nov. 26, 2018) at 13. The concurrence argues that this phrase alone is not a callback to racist tropes about Black men but rather a general reference to dogfighting and betting on the outcome of such now illegal dogfights. However, the phrase continues to prime the bias of the jurors after the repeated discussions of the defendant’s dog, despite this being irrelevant to the case in any way. 27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

about Bagby’s dog evoke a harmful racial trope about Black men and their

mistreatment of dogs. Kevin Blackistone, Opinion, Black Men and Dogs: Don’t

Believe Vick, NPR (Sept. 25, 2007);9 Linder, supra, at 52-56 (2018) (discussing

deep-seated prejudices involving dogs and Black and Latinx families). The

suggestion that Black men mistreat dogs is a myth used to perpetuate the stereotype

that Black men are dangerous and violent. See Blackistone, supra.

An objective observer—who is aware of the history of race and ethnic

discrimination in the United States and that implicit, institutional, and unconscious

biases, in addition to purposeful discrimination, have influenced jury verdicts in

Washington State—could recognize the prosecutor’s questioning about whether

Bagby cared for his dog or even still has his dog as an allusion to stereotypes about

Black men mistreating dogs. See Zamora, 199 Wn.2d at 718 (quoting Berhe, 193

Wn.2d at 665). This line of questioning whether Bagby was capable of keeping and

caring for his dog evokes a harmful racial trope about Black men being too

dangerous to properly treat dogs, undermining Bagby’s credibility and presumption

of innocence. The prosecutor’s questioning about the dog could have evoked this

harmful stereotype in the mind of the jurors and was irrelevant to crimes charged. If

the prosecution intended to use the information about the dog to bolster the

credibility of Roberson, it should have done so by explicitly stating its purpose in

9 https://www.npr.org/templates/story/story.php?storyId=14698643. 28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

asking about Babgy’s dog and otherwise opining whether all dog owners love their

dogs. The prosecution’s failure to make its purpose clear in this line of questioning

allows the jury to come to its own conclusions, and those conclusions could easily

be based on the racist ideas about Black men and dogs.

An objective observer could conclude that this prosecutor’s conduct was a

flagrant or apparently intentional appeal to the jurors’ potential racial biases in a way

that undermined the defendant’s credibility or presumption of innocence. 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, and his

questioning about Bagby’s dog—were an apparently intentional attempt to

distinguish Bagby based on his race. These themes were repeated throughout the

course of the trial, and 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, considering that these comments emphasized Bagby’s race and the subtle

connections these word choices have to negative stereotypes about Black

communities. In light of the numerous instances of attention drawn to Bagby’s race

throughout the trial and the lack of connection those remarks had to the record in

this case, an objective observer could conclude that the prosecutor had apparently

intentionally reinforced the stereotype that Bagby, because he is Black, was more

likely to have committed the crimes for which he was charged. Thus, we conclude

29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

the prosecutor’s questions and comments at trial were improper and constitute an

apparently intentional appeal to jurors’ potential racial bias in a way that undermined

Bagby’s credibility and presumption of innocence.

IV. Prejudice

In Monday, we explained that once it has been determined that the

prosecutor’s conduct flagrantly or apparently intentionally appealed to racial bias, it

then becomes the State’s burden to prove that the prosecutor’s race-based

misconduct was harmless beyond a reasonable doubt. Monday, 171 Wn.2d at 680

(referring to “constitutional harmless error”). If the State fails to do so, then the

defendant’s convictions will be vacated. Id. Bagby and amici urge this court to

instead adopt a “per se prejudice” rule to address instances when a prosecutor

appeals to racial bias. Under such a rule, rather than analyzing the degree to which

the prosecutor’s conduct could have resulted in harm, we would conclude that a

showing that the prosecutor engaged in flagrant or apparently intentional appeals to

racial bias is per se prejudicial and thus the defendant’s convictions must be vacated.

The harmless error analysis in Monday does not adequately address the

challenge of quantifying and measuring the harm caused by racial bias. Zamora, 199

Wn.2d at 722. There is also an inherent conflict in the nature of harmless error

analysis when it is applied to the context of addressing racial bias—if a prosecutor’s

flagrant or apparently intentional appeals to racial bias are inherently constitutionally

30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

unfair, how can it also sometimes be harmless? As the Monday concurrence

observed, “‘[T]he right to a fair trial that is free of improper racial implications is so

basic to the federal Constitution that an infringement upon that right can never be

treated as harmless error.’” 171 Wn.2d at 683 (Madsen, C.J., concurring) (emphasis

omitted) (quoting Weddington v. State, 545 A.2d 607, 614-15 (Del. 1988)). “Rather

than engage in the unconvincing attempt to show the error here was not harmless,

the court should hold instead that the prosecutor’s injection of racial discrimination

into this case cannot be countenanced at all, not even to the extent of contemplating

to any degree that the error might be harmless.” Id. at 682 (Madsen, C.J.,

concurring). As we acknowledged in Berhe, “as our understanding and recognition

of implicit bias evolves, our procedures for addressing it must evolve as well.” 193

Wn.2d at 663; see also Zamora, 199 Wn.2d at 722 (noting that “Monday’s past effort

to address race-based prosecutorial misconduct by applying a harmless error

standard has proved insufficient to deter such conduct”). Therefore, we hold that

once a court has concluded that a prosecutor’s conduct flagrantly or apparently

intentionally appealed to jurors’ racial bias, it cannot be cured and it is per se

prejudicial. Zamora, 199 Wn.2d at 722.

As we have discussed above, the prosecutor in Bagby’s case engaged in

conduct that flagrantly or apparently intentionally appealed to racial bias and thus

31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

undermined Bagby’s credibility and the presumption of his innocence. Thus, we

hold the prosecutor’s conduct was per se prejudicial and reverse.

CONCLUSION

As we have firmly stated, those who are accused of committing crimes are

entitled to fair trials free of racial bias and prejudice. In this case, the prosecutor

repeatedly evoked racist tropes and used racially coded language in a manner that

cannot fairly be ignored. We conclude that the prosecutor’s conduct in Bagby’s case

was improper and constituted a flagrant or apparently intentional appeal to racial

bias in a way that undermined Bagby’s credibility and his presumption of innocence,

and such conduct is per se prejudicial. Thus, we reverse the Court of Appeals and

remand to the trial court to vacate the convictions.

32 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby No. 99793-4

______________________________

WE CONCUR:

___________________________ ______________________________

33 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

No. 99793-4

STEPHENS, J. (concurring)—I agree with the lead opinion’s conclusion that

the prosecutor’s repeated use of the term “nationality” to distinguish the defendant

from other witnesses constituted a flagrant or apparently ill-intentioned appeal to

jurors’ racial bias. I also agree that the prosecutor’s framing of some witnesses as

“Good Samaritans” while conspicuously excluding the only Black witness—the

person who pulled the defendant from the initial fight—constituted a flagrant or

apparently ill-intentioned appeal to jurors’ racial bias. Because the effect of these

actions could not have been cured with a timely objection, the errors are prejudicial

and warrant reversal.

The lead opinion goes on to find reversible error due to the prosecutor’s

references to the defendant’s dog, noting stereotypes associating particular dog

breeds with Black men or priming the jury to think of Michael Vick and associate

Bagby with animal abuse. Lead opinion at 27-28 (citing Kevin Blackistone,

Opinion, Black Men and Dogs: Don’t Believe Vick, NPR (Sep. 25, 2007),

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

http://www.npr.org/templates/story/story.php?storyId=14698643; Ann Linder, The

Black Man’s Dog: The Social Context of Breed Specific Legislation, 25 ANIMAL L.

51, 57-58 (2018)). I do not believe the record in this case supports that conclusion,

and I do not join that portion of the lead opinion.

As the lead opinion correctly states, the test to determine if a prosecutor’s

misconduct implicates racial bias is “whether an objective observer could view the

prosecutor’s questions and comments as an appeal to jurors’ potential prejudice,

bias, or stereotypes in a manner that undermined the defendant’s credibility or the

presumption of innocence.” Lead opinion at 17-18 (footnote omitted) (citing State

v. Zamora, 199 Wn.2d 698, 718, 512 P.3d 512 (2022)). To assist in determining

whether a statement could meet this test, we consider several factors: “the apparent

purpose of the statements, whether the comments were based on evidence or

reasonable inferences in the record, and the frequency of the remarks.” Zamora, 199

Wn.2d at 718-19; see State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011).

In the lead opinion’s view, the prosecutor drew “attention to Bagby’s race

through his questioning about Bagby’s dog.” Lead opinion at 24-25; see also 2 VRP

(Nov. 27, 2018) at 261-62 (prosecutor asking when Bagby got his dog and how long

he had his dog). The brief line of questioning culminated in the prosecutor asking

whether Bagby cared deeply about the dog. When Bagby confirmed that he did, the

prosecutor responded, “Unfortunately, some people [don’t]; but I’m glad to hear

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

you’re not one of them.” 2 VRP (Nov. 27, 2019) at 262. The lead opinion frames

the prosecutor’s questioning about Bagby’s dog as unwarranted, an instance of

misconduct that “connects Bagby to dogs for no apparent reason.” Lead opinion at

26.

Based on my review of the record, the apparent purpose of the prosecutor’s

statement was to establish the credibility of Bagby’s victim, Roberson, by showing

that Bagby trusted her enough to care for his dog, whom he loved.1 The lead opinion

omits that Bagby—not the prosecution—first mentioned his dog when discussing

his relationship with Roberson during his direct examination:

[DEFENSE COUNSEL]: Okay. Yesterday when you heard that [Roberson] was—she didn’t really like you, that she was using you, did that surprise you?

MR. BAGBY: Quite honestly, yes, . . . . I felt safe enough, I mean, I felt comfortable around her to let her watch my dog if I walked to the store. You know, I legitimately thought we were friends.

1 VRP (Nov. 27, 2019) at 227 (emphasis added).2 The prosecutor’s subsequent

cross-examination of Bagby flowed from this direct examination. And because the

1 The lead opinion correctly states that the central inquiry “is not about the prosecutor’s claimed subjective intent,” but rather whether an objective observer could view the prosecutor’s conduct as a flagrant or ill-intentioned appeal to racial bias. Lead opinion at 26 (citing Zamora, 199 Wn.2d at 718). But this does not exclude looking to the apparent purpose of the statement, as required by Zamora, and I would do so here. 199 Wn.2d at 718-19. As an appellate court, we consider the entire context of the statement. 2 Bagby also volunteered information about his dog when he was asked on direct examination how the people at the fraternity party knew him: “[DEFENSE COUNSEL]:

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

record shows that Roberson’s credibility was a central issue at trial, it was both

logical and permissible for the prosecution to attempt to establish Roberson’s

credibility in the manner it did. See, e.g., 2 VRP (Nov. 27, 2018) at 331-32 (defense

counsel in closing argument identifying inconsistent narratives about Bagby and

Roberson’s relationship, specifically highlighting that Bagby allowed her to watch

his dog); contra lead opinion at 26 (“[I]f there was [] a reason [for the prosecutor to

ask about the dog], as the concurrence suggests, that reason would have been

identified and argued before the jury.”).

The lead opinion rejects this apparent purpose, arguing the prosecutor could

permissibly impeach Roberson through this line of questioning only if he had

“explicitly stat[ed his] purpose in asking about Bagby’s dog and otherwise opining

whether all dog owners love their dogs.” Lead opinion at 28. The lead opinion also

suggests that when impeaching a witness, counsel must relate all questions to “the

charges or facts of the case.” Id. at 26. But we have never held that counsel must

expressly declare their intention to impeach during either direct or cross-

Did you know those guys that—in that frat house? A: They knew me, I have a very unique looking dog, surprisingly they recognized me from my dog. Q: What kind of dog do you have? A: He is a husky and [G]erman shepherd mix. Q: Okay. A: I’m typically known as Poseidon’s owner, so. Q: The way, I’m sorry? A: My dog’s name is Poseidon, a Greek God of the sea. Q: Poseidon? A: Yeah, he has baby blue eyes, I’m typically known as Poseidon’s owner, so forget about the (inaudible) I have a name.” 1 VRP (Nov. 27, 2018) at 234.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

examination. Nor have we ever announced a rule that impeaching questions must

relate to a specific element of the charged conduct. Indeed, in Henderson v.

Thompson, we recognized that tying impeaching statements directly to evidence in

the case cannot excuse the improper use of language that appeals to racial bias. 200

Wn.2d 417, 438-39, 518 P.3d 1011 (2022) (trial judge abused discretion by excusing

defense counsel’s description of Black plaintiff’s demeanor as “combative” and

“confrontational” on the ground that the language was “‘race neutral’ and tied to the

evidence”). Again, we look at the record as a whole and the context in which an

objective observer would view the statements.

Unlike the lead opinion, I do not believe an objective observer would find that

the prosecutor “repeatedly ask[ed]” about the dog. Lead opinion at 26 (emphasis

omitted). The prosecutor questioned Bagby about his dog only while discussing

Bagby’s relationship with Roberson and only for a brief period during cross-

examination. For example, just prior to asking Bagby about his dog, the prosecutor

asked him about how long and how well he knew Roberson:

[PROSECUTION]: So, you’d known—your relationship with Shyla Roberson was more casual when you guys were at Spokane Falls Community [College], is that correct?

MR. BAGBY: Yes. ....

Q: And you hung out quite a bit at WSU [(Washington State University)]?

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

MR. BAGBY: Yes, we did.

[PROSECUTION]: You’d been to her apartment?

A: Yes.

Q: Okay. And she’d been to yours?

Q: She’d watch your dog for you while you went to the store?

Q: How long have [you] had that dog?

2 VRP (Nov. 27, 2018) at 261.

I disagree that the prosecutor’s statements about Bagby’s dog constituted

flagrant or apparently ill-intentioned prosecutorial conduct implicating racial bias.

While I can understand how a line of questioning about dogs, breeds of dogs, or

animal abuse might play on racial stereotypes, the conclusion that an objective

observer could find that occurred in this case is, to me, unwarranted.3

3 The lead opinion attributes to me an argument regarding the prosecutor’s statement that Austin Davis, the person Bagby had punched, intervened in the bathroom incident even though “he doesn’t have a dog in the fight.” 1 VRP (Nov. 26, 2018) at 13. According to the lead opinion, I argue “that this phrase alone is not a callback to racist tropes about Black men, but rather a general reference to dogfighting and betting on the outcome of such now illegal dogfights.” Lead opinion at 27 n.8. In fact, I make no such claim. Nor do I read the lead opinion as holding that the isolated use of this fairly common idiom in describing Davis’s actions constituted reversible misconduct.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bagby, No. 99793-4 (Stephens, J., concurring)

With these observations, I respectfully concur in the decision reversing

Bagby’s conviction and remanding for a new trial.