January 28, 2023
Tyler Bagby was on trial in Washington State for residential burglary and assault. Bagby was born in this country and is an American citizen. He is also Black. Neither his race nor his nationality were at issue in the trial. Nevertheless, during the trial, the prosecutor repeatedly asked witnesses if they could identify Bagby’s “nationality.” And, in his closing argument, the prosecutor referred to two (white) witnesses as “citizens” (even though no testimony was ever heard regarding their citizenship). Bagby was convicted of most of the charges.
Last week, in an opinion you can read HERE, the Washington Supreme Court reversed the conviction, concluding that the prosecutor’s conduct “evokes racial bias in a manner that constitutes prosecutorial misconduct and prejudices the trial,” and constituted a “flagrant appeal to the jurors’ potential latent racist biases.” Referring to citizenship and nationality in the manner that the prosecutor did, the court decided, had the plain purpose (and effect) of associating whiteness with being American and Blackness as un-American.
It strikes me that that was actually a pretty easy call.