Washington Supreme Court hears debate over whether prosecutor's questioning about a photo appealed to racial bias

The Washington State Supreme Court heard arguments Jan. 27 in State of Washington v. Christopher Lamont Posey over whether a prosecutor's cross-examination about a photograph invoked racial stereotypes and therefore required reversal under the court's race-based prosecutorial-misconduct standards.

Petitioner's counsel, who identified himself in argument as Rich Lehi, urged the court to apply the court's recent decisions (referenced in argument as the Monday decision, Zamora and Bagby) and the "objective observer" or "apparently intentional" test to find the prosecutor's questioning incurably prejudicial. Lehi argued that the line of questioning elicited imagery that could "poison the well," citing the U.S. Supreme Court's phrasing in Buck v. Davis that "some toxins can be deadly in small doses," to say even a minimal racialized appeal can be decisive.

Deputy prosecutor Theresa Chen, representing Pierce County, told the court the questioning was proper impeachment of the defendant about his own conduct and supported by…