Washington Appeals Court Reverses Conviction Due to Race-Based Prosecutorial Misconduct

A Washington appeals court recently reversed a conviction due to prosecutorial misconduct, despite finding there was sufficient evidence to support the conviction. The defendant was convicted of possession of a controlled substance with intent to deliver.  On appeal, he argued that the prosecutor had engaged in race-based misconduct by using the phrase “Mexican ounce” to describe the packaging of the heroin for which he had been charged.  He argued the prosecutor used this language to tie him to the drugs and to use “stereotypes of Mexican drug-dealing and dishonesty” against him.

Prosecutorial misconduct occurs when a prosecutor uses arguments to arouse the jury’s passions or prejudices. Raising race when it is not relevant can affect the jurors’ impartiality and appeal to their prejudice, resulting in a conviction that is not based on the evidence.

The defendant did not object to this language at trial.  Generally, when a defendant first raises prosecutorial misconduct on appeal, they must show improper conduct, prejudice, and that a jury instruction could not have cured the prejudice.  Washington treats race-based misconduct differently from other types of prosecutorial misconduct, however.  The court instead considers if the prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” State v. Zamora (quoting State v. Monday).  The test is whether an objective observer could view the comments as an appeal to potential bias, prejudice, or stereotypes. The court should consider the context of the comments.  The conviction must be reversed if the appeals court finds the prosecutor flagrantly or apparently intentionally appealed to racial or ethnic prejudice.

The appeals court noted that the case was based on allegations of constructive possession of drugs.  The jury had to determine if the circumstantial evidence showed the defendant had dominion and control over them and whether he intended to sell them.  The detective had testified that although 28 grams is an ounce, 25 grams is considered an ounce for heroin and is referred to as a “Mexican ounce.” He also testified the heroin found in this case was packaged in 24.6 gram bindles.

The prosecutor then used the term “Mexican ounce” twice in closing argument.  The state argued the term was relevant because it showed that 25 ounces was such a common amount for the sale of heroin that there was a term for it.

The appeals court rejected this argument, noting that testimony that the heroin was packaged in an amount commonly sold would be probative of intent to sell, but the term tying that amount to a particular ethnic group was not.  The comments about a “Mexican ounce” suggested that the defendant, who appeared to be Latinx, was more likely to possess the drugs.

The state argued the prosecutor had acted in good faith and did not intend to appeal to juror prejudice.  The appeals court pointed out, however, that the test is how an objective observer could view the comments, not the prosecutor’s subjective intent. The appeals court found that an objective observer aware of discrimination and biases could see the prosecutor’s action as an apparently intentional appeal to prejudice. The comments could suggest the defendant was more likely to have possessed drugs packed in a “Mexican ounce” because he appeared to be Latinx and spoke Spanish.

The appeals court reversed the conviction and remanded the case to the trial court.

If you are facing criminal charges, an experienced Washington criminal defense attorney can fight to protect your rights. Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation to discuss your case.


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