A man accused of fatally shooting his ex-girlfriend in 2017 at her Milton apartment won his appeal this week after he successfully argued that prosecutorial misconduct deprived him of a fair trial.
"When prosecutors commit misconduct that suggests racist stereotypes to the jury, justice falls prey to prejudice," the opinion from a three-judge panel of Division II of the Washington State Court of Appeals said.
Jurors convicted 31-year-old Joshua Kioni Ellis of second-degree murder for the death of Wendi Traynor, and Ellis was sentenced to 23 years, four months in prison.
The unanimous Division II panel overturned his convictions Aug. 31.
"Ellis argues that the prosecutor committed misconduct during voir dire because he invoked racial stereotypes and appealed to the prejudice of the jury," Judge Bernard Veljacic wrote for the panel. "Because the prosecutor committed misconduct that deprived Ellis of a fair trial, we reverse his convictions."
A Pierce County Prosecutor's Office spokesperson said official there are deciding whether to ask the state Supreme Court to review the decision.
Prosecutors told jurors Ellis shot Traynor, who was 25, about a month after she had left their home in Kentucky and moved back to the Puget Sound. Her family found her body in her new apartment about a week after the shooting. Ellis argued at trial that he killed Traynor in self-defense as she reached for a gun.
On appeal, Ellis argued that deputy prosecutor John Neeb's reference to The People v. O.J. Simpson and an implicit bias exercise were improper during jury selection.
"The prosecutor, allegedly seeking to clarify the attorney's roles in the proceeding, invoked the name of a notorious case involving the prosecution of a Black man for the murder of his White former spouse," Veljacic wrote in the opinion, signed by judges Bradley Maxa and Anne Cruser. "To mention it when a Black man is on trial for murdering his White girlfriend is bad faith on the part of the prosecutor."
The appellate opinion gave this account of what happened:
A juror asked the defense attorney: "You're the state, right?"
The attorney responded: "No, I'm not. I'm the people."
The prosecutor objected and later said: "The last subject I want to cover with you guys is part of what we've already covered, and that is in some states the most notorious case of all time for this example is The People versus O.J. Simpson, and I'm not talking about that case."
The defense attorney objected, and Superior Court Judge James Orlando told the prosecutor to finish his question.
The prosecutor continued: "It's got nothing to do with that case or any of the facts. I say that, because in California the prosecutors and the government represent the people of the State of California. In Washington, ... I represent the State of Washington."
The defense attorney, the prosecutor said, "represents Mr. Ellis, and Mr. Ellis alone. No one's confused about that, right? No one's confused about our roles. Okay?"
The Division II opinion said "the comment was egregious," and that it "invited the jury to draw parallels between that case and the case against Ellis."
It went on to say: "In his attempt at 'clarification' the prosecutor chose the most inflammatory reference he could have made. The sensationalized coverage, societal implications, and consequences of the infamous O.J. Simpson trial could not have been unknown to members of the jury."
Other cases could have clarified the role of the prosecution, the appellate court found.
"The People vs. Larry Flynt, The People vs. Philip Spector, The People vs. Roman Polanski, The People vs Woody Allen, or any case from the long-standing crime drama 'Law & Order,'" a footnote of the opinion suggested. "And if the prosecutor was desperate, even a made-up case for that matter, would have been better."
At another point in voir dire the prosecutor spoke about implicit bias.
"In an exercise to explain implicit bias, he invited the jurors to close their eyes and imagine two people summoned for jury duty, one dressed entirely in blue and the other entirely in red, with facial tattoos reading either 'Bloods' or 'Crips,'" the opinion said. "The prosecutor then asked the jurors which of them imagined at least one of the two as Black and explained that that was implicit bias. He then asked them to imagine the same two people shaking hands, laughing, and talking about their roles in a movie because they were actually actors in costume."
The prosecutor said: "The issue in implicit bias is this. If you judge somebody by their appearance right up front, you get to. If you stick to that opinion no matter what the evidence is, you're wrong. It's that simple."
The Superior Court judge overruled the defense attorney's objection.
"While one might question whether each of these examples alone would taint the entire trial, at the very least when viewing the entirety of the voir dire presentation — a critical stage in ensuring the accused receives a fair trial by an impartial jury — the prosecutor's use of both the O.J. Simpson case and stereotypes of Black men as violent, in a case where a Black man stands accused of a violent crime, was prejudicial such that we cannot conclude beyond a reasonable doubt that the misconduct did not impact the jury's verdict," the opinion said.
