The Supreme Court Takes on Prosecutorial Misconduct

The case of State v. Monday made front-page news in June when the Supreme Court reversed a murder conviction based on the misconduct of a King County prosecutor, Senior Deputy James Konat.  http://www.seattlepi.com/local/article/Supreme-Court-throws-out-Seattle-murder-1417103.php.  Most of the ruling’s focus was on racially charged arguments made by Mr. Konat.  In addition to using the pronunciation “po-leese” when cross-examining African-American witnesses (Mr. Konat is white), Mr. Konat attempted to discount the credibility of African-American witnesses who denied knowledge of the crime by referring to a “code” he alleged was unique to the African-American community.  In his closing argument Mr. Konat declared  “the code is black folk don’t testify against black folk.”  While the Supreme Court’s majority opinion employed an arcane doctrine of “constitutional harmless error” to reverse the conviction, a pithy concurrence by Justice Barbara Madsen did not mince words.

“Regardless of the evidence of this defendant’s guilt, the injection of insidious discrimination into this case is so repugnant to the core principles of integrity and justness upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint….Rather than engage in an unconvincing attempt to show the error here was not harmless, the court should hold instead that the prosecutor’s injection of racial discrimination into this case cannot be countenanced at all, not even to the extent of contemplating to any degree that error might be harmless.”

Lost in the coverage of the Court’s opinion, and downplayed in the opinion itself, is that Mr. Konat’s offensive statements were just one part of a larger problem in his outrageously arrogant closing argument. The primary problem with his closing argument wasn’t that it traded on questionable racial generalizations (though it did), but that it substituted his own personal views, prejudices, and opinions for evidence.  In closing, Mr. Konat wrapped himself in prestige of his office and of his former boss, the popular Norm Maleng, and traded on that credibility to make some questionable and highly unfair generalizations:

“Seventeen years and eleven months ago yesterday, I signed on to serve at the pleasure of Norman K. Maleng. I never imagined in a million years I would get to try as many murder cases as I have in the last 15 years, and I never imagined I would ever get to try one, a doozy, like this one. Seventeen years and about ten months ago I started going to training sessions in the King County prosecutor’s office on Saturday mornings that we just dreaded when we could be playing golf…. And two things stood out for me very shortly into my career as a prosecutor, two tenets that all good prosecutors, I think, believe. One is that when you have got a really, really, really strong case, it’s hard to come up with something really, really, really compelling to say. And the other is that the word of a criminal defendant is inherently unreliable.”

Though casual observers may question the wisdom of the Court reversing the conviction in the face of seemingly overwhelming evidence (much of the offense was caught on video), it was an act of courage that happens all too seldom.  Career prosecutors like Mr. Konat can rise to the top of their profession without an inkling that such misconduct is improper because they are so rarely called out for it. Such errors are often downplayed as harmless—as they were in the Court of Appeals decision that the Supreme Court reversed—and therefore given little attention.

Indeed, Mr. Konat would have likely suffered no consequences for his behavior had the Supreme Court not reversed the conviction.  In an Op-Ed in the Seattle Times in which King County Prosecutor Dan Satterburg condemned Mr. Konat’s remarks,http://seattletimes.nwsource.com/html/opinion/2015341754_guest17satterberg.html,Mr. Satterbug claimed that “when I became aware of this issue, which was not raised at trial, we instituted a new round of training on prosecutorial misconduct in the office.”  Either Mr. Satterburg was unaware of Mr. Konat’s behavior until it reached the Supreme Court, or the lawyers who handled the appeal at the Court of Appeals were exempt from the training, because they defended Mr. Konat’s conduct at the Court of Appeals, arguing that Mr. Konat’s claim that “black folk don’t testify against black folk” was based on his “personal knowledge,” and that “[t]he prosecutor’s comment in final argument that ‘black folk’ don’t testify against ‘black folk’ was nothing more than a summary of the evidence in the case, consistent with the realities of the lack of cooperation and the hostility by most of the witnesses,” and finally that “[t]his was not prosecutorial misconduct, nor was it evidence of a racial bias by the prosecution.”  For a dismantling of Mr. Satterburg’s spin on his office’s handling of the Monday matter, read this letter to the editor by Nancy Collins, Mr. Monday’s appellate lawyer.http://seattletimes.nwsource.com/html/northwestvoices/2015352445_kingcountyprosecutordansatterbergweighsinonracistcomments.html