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Marty Keim asks appellate panel to reverse over use of gang evidence; state urges denial
Summary
In oral argument before an appellate panel, defense counsel for Marty Keim said repetitive gang-related exhibits required a limiting instruction and that failure to secure one amounted to ineffective assistance; the State argued the claim is untimely and that the record ties Keim to the scene. The panel submitted the case.
An appellate panel heard argument on a personal restraint petition filed on behalf of Marty Keim, focusing on whether extensive gang-related evidence should have been accompanied by jury limiting instructions and whether defense counsel’s choices amounted to ineffective assistance.
Devin Knowles, counsel for Keim, told the panel that two core principles of Washington criminal law—prohibiting the use of bad acts as propensity evidence and the presumption that jurors follow instructions—“essentially collapsed” when the trial record allowed gang evidence to be used “for any purpose whatsoever.” Knowles pointed to specific exhibits, including a photograph of Keim in a car flashing a gang sign and holding gold chains (admitted, counsel said, to show a pink phone cord linking Keim to a suspect vehicle), and argued the jury was never adequately guided on how to use that material.
“An instruction is not just what you can consider for this purpose,” Knowles said; “the most important part of [a limiting instruction] is saying what you can’t do with the evidence” — namely, use it as propensity evidence.
Ian East, representing the State of Washington, urged the court to deny the petition. East said the proceeding is a collateral attack subject to a different, more deferential standard, and he emphasized timeliness: Keim did not raise objections to particular exhibits in a timely fashion. East also highlighted the breadth of the record, saying it includes about 600 exhibits and six weeks of testimony, cell-phone and video evidence placing Keim at the scene, and statements East characterized as strongly tying Keim to the vehicle and location.
The State also argued that defense attorneys often make strategic choices about when to object and that the court should not substitute its judgment for reasonable tactical decisions. “If you can identify any reasonable reason that defense counsel would not want these instructions doled out throughout the trial…that makes perfect sense as a defense attorney,” East told the panel.
At several points the panel pressed both sides to identify whether the obligation to give a limiting instruction was the court’s sua sponte duty or the result of the State having requested one. Knowles confirmed the defense’s contention is that the State asked for a limiting instruction and the trial court declined to give it.
After roughly half an hour of back-and-forth on strategy, the standard of review and the potential prejudice of repeated gang-related materials, the panel announced the case was submitted. The court then called the next matter on the calendar, Mill Creek Foot and Ankle Clinic v. Hansen.
The petition remains under consideration; the panel did not issue a decision at the hearing.
