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 an earlier offer of proof. "A prosecutor does not improperly assert racial bias into a trial by inquiring about the defendant's own relevant conduct," Chen said, arguing the inquiry was aimed at credibility and was not an appeal to race.

A central factual point in dispute at argument was whether the jury saw the photograph. Counsel and several justices noted the image itself was not admitted into evidence before the jury; rather, jurors heard testimony elicited by the prosecutor that described the photo. The parties also debated whether the prosecutor's subsequent decision to withdraw pursuit of the line the next day or the defense's choice to decline a limiting instruction meaningfully reduced any prejudice. Lehi argued the initial questioning occurred at a critical stage (cross-examination of the defendant) and that withdrawing the photo later did not erase the impression already placed before jurors.

Several justices pressed both sides on how to apply the Bagby factors alongside the court's objective-observer standard: whether the factors should be mechanically weighted, whether a single factor can suffice to show prejudice, and how to assess apparent intent versus effect. One justice framed the inquiry as whether an objective observer could conclude the prosecutor's conduct "appealed to racial biases through their conduct," while others probed whether frequency, stage of trial, and evidentiary foundation should change the analysis.

Chen told the court there was a record basis for the prosecutor's questions, pointing to an offer of proof the State referenced at page 62 of the record and explaining the prosecution's theory that the photograph and prior interactions informed the victim's responses and the defendant's credibility. Lehi countered that the State had not shown the photograph was sent by the defendant to the victim or otherwise connected it to intimidation in the trial record.

The arguments turned on legal standards as much as the facts. Petitioner urged the court to emphasize that the objective-observer standard focuses on the effect of the conduct and that race-based appeals are treated as incurable; the State urged deference to a trial context in which the impeachment attempt was short, peripheral and ultimately not pursued further.

The court thanked counsel, marked the case submitted and adjourned with no oral decision. The justices will issue a written opinion resolving whether the prosecutor's questioning in this trial met the court's race-based prosecutorial-misconduct standard and, if so, whether reversal and a new trial are required.

Details from the argument: the petitioner relied on Zamora and Bagby; the U.S. Supreme Court's Buck v. Davis was cited by petitioner for the risks of even limited racialized evidence; the State pointed to an offer of proof in the record (page 62) as the foundation for its impeachment questions. The photograph itself was not admitted into evidence in front of the jury, and defense counsel declined a limiting instruction when it was later offered. The case was submitted for decision at the close of argument.