“That is Whack!” – Prosecutorial Misconduct in Seattle

“All right Goldmember. Don’t play the laughing boy. There’s only two things I hate in this world. People who are intolerant of other people’s cultures and the Dutch. ” – Nigel Powers, Goldmember

Strange goings-on in Washington state these days. The state supreme court has found that James Konat, a veteran prosecutor in King County, engaged in “prosecutorial misconduct” in the 2006 murder trial of one Kevin L. Monday, Jr. (story here).

Mr. Konat’s crime? He sought to destroy the credibility of several defense witnesses, who happened to be black like Mr. Monday, by referring to a “street code” in which African Americans refuse to testify against each other. OK, that wasn’t actually his crime – everybody has heard of such a code. Of course, such “codes” to the degree that they actually exist, are certainly not restricted to African Americans. I imagine you could find examples in just about every people group and beyond. From mobsters to police officers, the “code of silence” is nothing new.

No, Mr. Konat’s actual crime – when questioning these witnesses he use enunciation and intonation reminiscent of African American caricatures on the stage and screen. When referring to the police, Mr. Konat would say “PO-leese” … and apparently did so to “subtly, and likely deliberately, call to the jury’s attention that the witness was African American.” OK, look, if you need some caricaturish pronunciation to notice the skin color of a witness, well, you’re blind.

Now, before going further, let me defend the state supreme court and the legal system in Washington – before calling it ruthlessly immoral and lawless. The state of Washington has a right to regulate its prosecutors as it sees fit. If it wants this type of behavior to be prosecutorial misconduct, then fine. I’d probably agree with the policy – if the issue is the caricaturish mockery, not the reference to a code of silence (the prosecutor must be allowed to make reference to such a code if it helps his case … though he should also have some evidence). I would hope that these rules were written down somewhere (and perhaps they were).

The real problem here is what else came with the ruling. The murder conviction for Kevin Monday was overturned. By a margin of 8-1, the supreme court ruled that the “beyond a reasonable doubt” conviction of Kevin Monday should be overturned because the prosecutor used insensitive pronunciations when questioning witnesses about a code of silence. Oh my.

Let me repeat that … Oh my.

And lawlessness shall increase …

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