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Spokane, Washington  Est. May 19, 1883

Appeals court judge will not recuse himself in Spokane County cases, saying prosecutor, law enforcement don’t understand systemic racism

Spokane County Courthouse.  (DAN PELLE/THE SPOKESMAN-REVIEW)

A state appeals court judge who stung Spokane County prosecutors and police with accusations of racist enforcement of the law has rejected calls that he recuse himself from ruling on local cases.

Appellate Judge George Fearing wrote in a new ruling that he holds no animus toward law enforcement officers or prosecutors and only called out their racist actions to help create a more fair criminal justice system.

The ruling is the latest in an ongoing back and forth between the Spokane County Prosecutor’s Office and the judge, who wrote an 80-page unpublished opinion calling out systemic racism in a now-overturned case.

Spokane County Prosecutor Larry Haskell asked Fearing last month to recuse himself. Haskell said the judge had violated the Judicial Code of Conduct and showed clear bias toward prosecutors, law enforcement and victims of assault.

Fearing answered last week in a 28-page ruling that he does not have a bias against the prosecutor’s office and that his opinion in regard to systemic racism is in line with the Washington Supreme Court’s directive to confront racism and begin “institutionalizing real change” in the criminal justice system.

The judge did say he will recuse himself in cases where Haskell and his wife, Leslie Haskell, are named parties and in cases where testimony from one of the deputies suing Fearing is key to the appeal.

The prosecutor’s office is disappointed in Fearing’s decision, said Chief Criminal Deputy Preston McCollam.

“Judge Fearing has decided that despite his obvious bias and willingness to insert his personal opinions about law enforcement and prosecutors into his decision making, the rules of judicial conduct do not require him to remove himself from criminal cases,” McCollam wrote in an email. “If you read his letter he clearly believes himself too enlightened to be held responsible for the words he wrote about my office, law enforcement, and this community as a whole. His twenty page letter does nothing to restore confidence that any deputy prosecutor or law enforcement officer in this community can have a fair hearing in front of him.”

The back and forth between Fearing and Haskell began when Fearing, who presides over the Division III Court of Appeals that handles most Eastern Washington cases, wrote the 80-page opinion earlier this year detailing what he called the systemic racism inherent in a Spokane County case.

In August 2019, Darnai L. Vaile, now 26, was arrested after a woman called from Peking Palace in Spokane Valley saying Vaile kissed her without her permission.

Vaile was not charged with anything related to the unwanted kiss, but with two counts of third-degree assault against two deputies. He was convicted in Spokane Superior Court on those charges.

The conviction was appealed and subsequently overturned by a panel of three judges that included Fearing. The appellate judges disagreed with a lower court ruling that a video of Vaile’s arrest was inadmissible.

Fearing wrote independently from his colleagues, saying racism permeated the case. This is not the first time that Fearing penned a passionate dissent defense on racial issues. In 2021, he offered sharp criticism of racist covenants on deeds throughout Spokane County.

In response to Haskell’s request, Fearing asked “other interested parties” to weigh in on the recusal request.

Parties respond

The public defenders , members from religious groups, social justice advocacy groups and nonprofit legal services that responded said they appreciated Fearing for calling out racism in a dissenting opinion.

Local police, the sheriff’s office and prosecutors said Fearing showed bias against law enforcement officers.

The split is evident in letters solicited by Fearing. Of the 15 letters he received, 10 wrote they appreciated Fearing’s stance while five said he showed bias.

The state Supreme Court wrote a letter in June 2020 encouraging members of the judicial and legal community to have the courage and will to address racism and the ongoing injustices faced by Black Americans, noted Victoria Blumhorst, director of the Spokane County Counsel for Defense, in her letter.

Blumhorst wrote that Fearing’s opinion addressed the very issue the state’s highest court asked of judges, by calling out racism he saw in an appellate proceeding.

Haskell’s office has filed a complaint against Fearing with the state’s Judicial Conduct Commission, McCollam said.

Complaints to and investigations by the commission are confidential until a judge is sanctioned.

The commission meets five times a year.

It is extremely rare for a judge to be sanctioned for something they wrote in an opinion, said David J. Sachar, director at the national Center for Judicial Ethics.

“Comments made by a judge during court proceedings are typically not considered indicative of improper bias or prejudice,” Sachar wrote in an email. “A judge or justice would have to go as far as to proclaim a presumed ruling on a case – or future cases – and be unwilling to consider the matter fairly. It is extremely rare for a viable complaint against a judge to come from judicial statements in an official ruling or order.”

Despite the rarity of a sanction, Spokane County Sheriff John Nowels and Spokane Police Chief Craig Meidl wrote that they believe Fearing violated the Code of Judicial Conduct.

“Judge Fearing is so blinded by his bias that his opinion crosses the threshold into activism against law enforcement and court officers who all took an oath to uphold the Constitution of the State of Washington and The United States of America,” Nowels wrote. “These are the actions of a politician not a judge.”

Meidl listed four rules in the Code of Judicial Conduct he believes Fearing violated, before going on to say that law enforcement had no choice whether to respond to the incident.

“When a victim of an assault requests law enforcement, the community expects a response,” Meidl wrote. “Nor does law enforcement base whether they are going to respond to a victim’s request for help on the suspect’s demographics.”

He also took issue with Fearing bringing SPD into the case when they did not respond to the Vaile incident.

“For reasons unknown, Judge Fearing determined it appropriate to reference SPD in his diatribe against law enforcement,” Meidl wrote. “This, also, is grossly inappropriate and had nothing to do with the case.”

He went on to encourage Fearing to recuse himself from all Spokane cases, saying the judge “already established a visceral and indelible opinion of the Spokane criminal justice system.”

Along with Nowels and Meidl’s letters, the Spokane Police Lieutenants and Captains, the Spokane Police Guild and the Spokane County Deputy Sheriff’s Association all wrote in support of asking Fearing to recuse himself.

The Washington Appellate Project, Washington Association of Criminal Defense Lawyers, the Washington Defender Association, Washington state Office of Public Defense and the Way to Justice opposed Fearing recusing himself.

The NAACP Spokane branch also opposed the recusal request, writing in their letter that the prosecutor’s office clearly did not understand the state Supreme Court’s directive.

“You cannot fight what you cannot name, and we applaud Judge Fearing’s bravery and honesty in accurately identifying and detailing the systemic racism present in the Vaile case – a painful fact that we and our community are all too familiar with,” the NAACP letter reads.

The Peace and Justice Action League of Spokane (PJALS), the Spokane Community Against Racism (SCAR) and the Unitarian Universalist Church of Spokane also submitted letters opposing Fearing’s recusal.

Fearing’s ruling

Fearing wrote in his recent ruling that the prosecutor’s office and law enforcement showed “disdain” for both the Washington Supreme Court’s open letter on racism and a similar letter from Spokane County Superior Court.

“A Washington judge should not disqualify himself from criminal cases because of striving to fulfill the instructions of the Washington Supreme Court,” Fearing wrote.

He is recusing himself from cases that rely on the testimony of Deputy Clay Hilton. 

An anonymous caller left Fearing a voicemail as a “concerned citizen” left him an angry voicemail calling Fearing “woke” and included “derogatory comments about Spokane’s African American community being criminals.”

Not long after Hilton requested all records related to staff communications and the Vaile case also as a “concerned citizen,” according to Fearing’s decision.

Hilton also intends to sue him, Fearing wrote.

“I hold no ill will toward Deputy Hilton, but have concern about his anger, inability to reflect on his behavior, and insistence on retaliation,” Fearing wrote. “I lack confidence in his credibility.”

He also plans to recuse himself in cases where Larry and Leslie Haskell are named parties.

The prosecutor’s office maintains its position that Fearing should recuse himself, McCollam said Friday.

“My take away was that Judge Fearing believes he’s more enlightened than the others and that the judicial cannons that relate to bias and being impartial don’t apply to him,” McCollam said.

Fearing denied any bias against victims of assault, law enforcement in general and prosecutors.

“Spokane law enforcement officers need to learn that occasional criticism does not mean that one dislikes or dishonors officers,” he wrote.

He also clarified that he did not call anyone in the case a racist, except for Leslie Haskell, Larry Haskell’s wife, who is a self-described “proud white nationalist.”

“The prosecuting attorney’s office’s protestation against my labeling of conduct as racist fails to recognize the nature of institutional racism and shows a lack of understanding of recent Washington Supreme Court decisions on racism,” Fearing wrote. “Institutional racism often results from the behavior of persons who do not intend racial prejudice or harm.”

Editor’s Note: This story has been updated to correct who left Fearing the angry voicemail. The voicemail was left anonymously, according to Fearing’s decision.

The Spokesman-Review is publishing Fearing’s ruling along with letters from local officials in their entirety online.

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