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Sirens & Gavels

Racial remarks overturn murder case

By GENE JOHNSON,Associated Press
SEATTLE (AP) — The Washington state Supreme Court overturned a man's murder conviction Thursday because of what one justice described as "repugnant" racial comments made by the prosecutor during the trial.

Kevin L. Monday Jr., who is black, was convicted in a 2006 shooting in Seattle's Pioneer Square neighborhood after a street musician's video camera captured him firing the shots that killed Francisco Green.

During the trial, longtime deputy King County prosecutor James Konat, who is white, repeatedly questioned recalcitrant witnesses by making references to the "po-leese" and to a supposed "code" of silence that kept witnesses from cooperating with officers. Konat told the jury, "The code is, black folk don't testify against black folk."

The comments had the ultimate effect of casting doubt on the credibility of the witnesses based on their race, Justice Tom Chambers wrote for the majority.

"The notion that the state's representative in a criminal trial, the prosecutor, should seek to achieve a conviction by resorting to racist arguments is so fundamentally opposed to our founding principles, values, and fabric of our justice system that it should not need to be explained," the opinion said.

Chief Justice Barbara Madsen similarly criticized the remarks in her concurrence: "The appeals to racism here by an officer of the court are so repugnant to the fairness, integrity, and justness of the criminal justice system that reversal is required."

Monday will be tried again — with a different prosecutor handling the case.

"It's never OK to invite jurors to convict someone based on racial biases, and we're glad the court recognized that," said Monday's attorney, Nancy Collins.

Konat's boss, King County Prosecutor Dan Satterberg, said he agrees the comments were inappropriate and offensive, and his office never argued otherwise. Instead, the issue before the court was whether a new trial was necessary, given the video of the shooting and Monday's admission that he fired the shots.

"The deputy prosecutor deeply regrets his remarks," Satterberg said in a written statement. "He has been told, in no uncertain terms, that those arguments are unacceptable."

The King County prosecutor's office instituted new training for prosecutors as a result of the case, spokesman Dan Donohoe said. Konat was not formally disciplined.

Konat is currently prosecuting Isaiah Kalebu, who is charged with murder in a rape and stabbing attack on a lesbian couple in South Seattle two years ago. He was focusing on that trial Thursday and unavailable for comment, Donohoe said.

The five justices who signed the majority opinion found that Monday must receive a new trial because the prosecutor's error was not "harmless" — meaning it could have affected the jury's decision. They noted that although the video captured the shooting, it could not establish that Monday acted with premeditation or whether he might have had other legal defenses for his actions.

Three justices, including Madsen, signed a concurring opinion which held that Monday deserved a new trial even if the comments were harmless.

Justice James Johnson voted against granting him a new trial.

"Even if the prosecutor's comments arguably tainted the jury's impressions of some witnesses, this could not affect the jury's perception of the videotape and other evidence," Johnson wrote in his dissent.

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