This is a reposting, originally published via Substack by Jerry Leclaire on May 24th, 2023. You can subscribe to his email list here.

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On Monday, May 22nd, Kip Hill’s article in the Spokesman reported “Spokane County Prosecutor’s Office won’t retry Black man whose convictions prompted charge of racism by appellate judge.” This development needs extended context. Darnai Vaile, the “Black man” of the headline, was convicted of two counts of resisting arrest in a Spokane County Superior Court jury trial and sentenced to six months probation. Vaile’s arrest, charging by the prosecutor, and jury-conviction (on only the least of the charges the prosecutor filed) stemmed from an incident that occurred at Peking Palace in Spokane Valley in May of 2019.

The incident began with a 911 call by a white woman alleging that Mr. Vaile gave her an unwanted kiss. A number of Spokane County Sheriff’s deputies responded. Mr. Vaile was soon pinned on the ground, hand-cuffed, arrested, and charged with multiple crimes, not one of which concerned the original complaint. In fact, the original 911 caller’s short cell phone video of the arrest was a major piece of evidence offered in Mr. Vaile’s defense at trial. Furthermore, the caller’s sister was also arrested and charged that evening (and later convicted) of an assault on a law enforcement office due to a scuffle over the treatment of the defendant.

Key to my understanding of this case is that the criminal charges that Prosecutor Larry Haskell’s office (as “the state”) brought against Mr. Vaile had everything to do with the police handling of the call and the accused—and little or nothing to do with the allegations made in the call itself. What was actually on trial in Superior Court was the interaction between Mr. Vaile and the sheriff’s deputies.

First, take note that Mr. Vaile, unlike nine out of ten defendants facing a laundry list of charges, did not knuckle under and accept a plea deal in order to avoid the uncertainty, expense, and time-consumption of a jury trial. Instead, four years of his life have been spent fighting the charges and the conviction. It would, arguably, have been easier to enter a guilty plea to a lesser charge and some reduced level of punishment. Of course, had he done as many feel forced to do, Mr. Vaile would have lived for some time with the considerable disadvantage in society of a criminal conviction on his record.

Mr. Vaile and his legal defense took his resisting arrest conviction and sentence of six months probation to the Washington State Court of Appeals, Division III, primarily on technical-sounding grounds. During the trial Spokane County Superior Court Judge Tony Hazel ruled that the cell phone audio—but not the video—recorded by the 911 caller during the police takedown of Mr. Vaile could not be presented to the jury because it constituted “hearsay” based on “the rules of evidence”.

All three judges of the three judge panel of the Court of Appeals concurred that the audio was, in fact, not hearsay and was, therefore, admissible at trial. On that basis, the “majority opinion” [that is, the joint opinion of two of the three judges] states, “We reverse Vaile’s conviction for resisting arrest and remand for a new trial.” As a practical matter “remand for a new trial” offers the possibility that the Prosecutor will ask the Appeals Court to approve dropping the charges and avoiding everyone enduring a second trial—essentially giving up on tying up Mr. Vaile any further. “Remand for a new trial” allows the Prosecutor’s office to save face by bowing out. And that is exactly what they’ve just done:

“Given that Mr. Vaile was acquitted on the felony charges and only the simple misdemeanor charges of resisting arrest remain, the State [the Prosecutor’s Office under Mr. Haskell] has determined that retrial would neither be a prudent use of judicial and administrative resources, nor further any deterrent or protective purpose,” [Deputy Prosecutor] McCollum wrote. The office is also not seeking further review of the case by the Washington Supreme Court.

The two of the three judges who wrote the Appeals Court “majority decision”, Judges Tracy Staab and Robert Lawrence-Berrey, seemed anxious to limit their ruling to only those issues specifically put to them by the written appeal, even as they acknowledge that “…this is an emotionally and racially charged case.” The third, Judge George Fearing, concurred that the trial court erred in excluding the audio evidence, but went much further [Bold is mine]:

Like the majority, I would reverse Vaile’s conviction for resisting arrest, but, unlike the majority, I would direct dismissal of the charge based on race-based government misconduct. Reversal and remand for a new trial does not suffice to correct the prejudice debasing African-American Vaile’s prosecution.

As I understand this legal jargon, “dismissal of the charge” (had it been the majority opinion) would have ruled out a second trial. More importantly, a majority opinion from the Appeals Court of “race-based government misconduct” would have spotlighted the race-based prejudice of our region even more than the local media has so far reported.

Judge Fearing pulls no punches. He opens his “(concurring/dissenting in part)” opinion with “This appeal presents a primer on racial prejudice inside America’s criminal justice system.” On page 36 of Fearing’s “(concurring/dissenting in part)” opinion he summarizes the reason for favoring dismissal:

This court [i.e. the majority decision by the other two judges] reverses and remands for a new trial the conviction for resisting arrest on evidentiary grounds rather than for improper racist comments. Since the undisputed facts, including the trial transcript, demonstrate racial prejudice blighting the prosecution of Darnai Vaile, I would also reverse the conviction on the basis of the State inserting racial stereotypes into the trial. But I would go further. I would ask the parties to submit briefing on whether the case should be dismissed for government misconduct. I would direct counsel to include, in a discussion of government misconduct, the conduct of law enforcement at the Peking Palace, the charging of Vaile with resisting arrest under the circumstances when he was not charged with any other crime such that law enforcement lacked cause to arrest, the overcharging of counts of resisting arrest, the uneven advocacy of evidentiary rules by the State, the racial innuendoes employed by the prosecutor at trial, and the cumulative effect of the numerous instances of State misconduct.

Judge Fearing’s “(concurring/dissenting in part)” opinion chronicles the inherent racism of our region, much of it so ingrained as to be barely noticeable from within. In my view, Fearing’s opinion is given rather short shrift in the local news before giving air to several breathless rebuttals. (See below for a link and a short reader’s guide to the Fearing’s opinion.)

Spokane County Prosecutor Larry Haskell and current Spokane County Sheriff John Nowels both submitted extended statements assailing Judge Fearing’s opinion. (Click on the names for the full texts.) Don’t expect contrition or self-awareness. Tellingly, both first fly to the defense of the woman who made the inciting 911 call—even as both ignore the fact that no charges ever arose from the act of “unwanted kissing” alleged in that call and the fact that the caller herself and her sister were sympathetic to the plight of the defendant in the course of the arrest and at trial. Nowels goes on to assert that the majority opinion “made it clear” that no one “was guilty of intentional racism or apathy” [italics are mine]. Well, not exactly. The majority opinion stated that this was a “racially charged” case. Judge Fearing never suggested that the racism he discerned in the conduct of jury trial was intentional, only that it was ingrained.

Nowels’ statement is especially egregious. He writes, “…the dissenting opinion appears to be based on wokeism, judicial activism, and the dissenter’s personal view run amuck and is not based on established law.” If Fearing’s opinion is “wokeism”, then I’m happy to be considered “woke”. (Isn’t the alternative to “woke” asleep? Asleep to the reality around us?) As for “judicial activism” I suggest that Sheriff Knowles carefully read the opinion in which Fearing explains his justification.

I lay this entire mess at the feet of the overzealous County Prosecutor Larry Haskell. No doubt he self-justifies by imagining himself as a crusader for justice, when, in fact, there was nothing in this case that justifies the original laundry list of charges—particularly in the absence of a harmed victim.

Keep to the high ground,

Jerry

P.S. Click here for a readable and searchable pdf of the Appeals Court decision in State v. Vaile. The majority opinion is presented first. It concluded on page number 21. Judge Fearing’s “(concurring/dissenting in part)” opinion commences on the next pdf page with a new page 1. I recommend skimming (at most) the many pages in both opinions covering the arcana of rules of evidence and hearsay. The meat of Fearing’s argument starts on his page 36 and runs to 59. Don’t miss the section starting on page 50 that opens with “When considering explicit race discrimination in America and its impacts on Darnai Vaile’s prosecution in nonexplicit, or implicit, unstated, ways, I also consider the venue for Darnai Vaile’s arrest and prosecution.” What follows is a recitation of the racially poisonous milieu in which the Spokane court system operates. It is eye-opening.