The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Washington Court Holds (2-1) Prosecutors Didn't Improperly "Play[] into Religious or Cultural Prejudices" in Trial of Iraqi Immigrant Husband for Murdering Wife
Some short excerpts from yesterday's long opinion in State v. Darraji (Wash. App.), written by Judge Tracy Staab and joined by Chief Judge Robert Lawrence-Berrey:
Prosecutors are prohibited from injecting improper bias into a trial by playing into religious or cultural prejudices. But not all references to religion or culture play into improper bias. When relevant and grounded in the evidence, it is not improper for a prosecutor to present testimony or argument related to religion and culture. Indeed, such evidence may be necessary to prove a fact at issue, such as motive. That is what happened in this case.
The State charged Yasir Darraji with second degree felony murder …. The State's evidence was that Yasir, an Iraqi immigrant, was upset that his former wife, Ibtihal Darraji, had changed her behavior and beliefs in ways that did not conform to Iraqi culture. Yasir himself framed his concerns about Ibtihal in terms of his Iraqi culture and Islamic beliefs.
After police found Ibtihal's murdered body inside a burning vehicle, the investigation focused on Yasir, largely due to evidence of his admitted disapproval of Ibtihal's behavior, which he described as culturally and religiously motivated. Given this specific factual circumstance, Yasir's religious beliefs and cultural affiliation were relevant to the State's case. It therefore was not improper for the State to present evidence and arguments pertaining to religion and culture to the jury….
In February 2020, the State charged Yasir with second degree murder against an intimate partner, committed during the course of a second degree assault by strangulation….
At trial, the State's theory was that Ibtihal's rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses. Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal's body inside.
On appeal, Yasir argues that the State committed prosecutorial misconduct by introducing irrelevant and inflammatory evidence of Islamic beliefs to invoke antiMuslim bias with jurors. He asserts that the State's theory of conflict between the couple was manufactured when the couple simply disrespected each other. Yasir maintains that the State's evidence of Iraqi culture, Islamic beliefs, and Ibtihal's non-conforming behavior was irrelevant. He points to specific evidence and comments as particularly inflammatory, including evidence of Ibtihal's decision to convert to Christianity and stop wearing a hijab, and evidence of their daughter wearing traditional Islamic attire and praying. Along with the prosecutor's use of the term "Americanized," he contends these comments and evidence amounted to prosecutorial misconduct. While acknowledging that he failed to raise this issue at trial, Yasir argues that we should apply the standard for race-based misconduct to his arguments based on culture and religious bias….
"[T]o prevail on a claim of race-based prosecutorial misconduct, the defendant must demonstrate that the prosecutor's conduct was both improper and prejudicial by showing that [the prosecutor] flagrantly or apparently intentionally appealed to racial bias in a manner that undermined the defendant's credibility or the presumption of innocence." … We analyze race-based misconduct using an objective observer standard and do not consider the prosecutor's subjective intent. "[W]e ask whether an objective observer could view the prosecutor's questions and comments as an appeal to jurors' potential prejudice, bias, or stereotypes in a manner that undermined the defendant's credibility or the presumption of innocence." … When applying this objective observer standard to the prosecutor's remarks, "we consider (1) the content and subject of the questions and comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements, and (4) whether the comments were based on evidence or reasonable inferences in the record." …
With respect to the first two Bagby factors, there is no question that Iraqi culture and religion, both Islamic and Christianity, were frequently discussed during trial. If these comments were not based on evidence that Yasir adhered to these customs and beliefs, then the comments would be improper and prejudicial. Similarly, if the comments and evidence were introduced to discredit Yasir then they would likewise be inadmissible….
[But t]he comments and questions by the prosecutor were based on evidence and introduced to show motive. The State maintained that Yasir believed Ibtihal's changing behaviors failed to conform to Iraqi culture and Islamic beliefs and were disrespectful, insulting, and reflected poorly on him. The prosecutor's comments and questions throughout the trial about Iraqi culture were based on evidence that Ibtihal's behaviors were viewed by Yasir and others close to him as failing to conform to Iraqi culture. These behaviors became the topic of rumors and gossip.
The non-conforming behavior included drinking, smoking, going to bars, dating, driving, working, not covering her hair, and attending a Christian church. While Yasir's appeal focuses primarily on evidence of the couples' religious differences, the State maintained that Ibtihal's conversion to Christianity and decision to wear her hair uncovered was part of the larger picture.
Yasir himself made it clear that his beliefs and actions were influenced by his culture and religion. The day after Ibtihal's murder, Yasir explained to police that Ibtihal's outburst and name calling was unacceptable because "our culture is different." He further explained both in his interview and while testifying at trial that Ibtihal's perception of freedom following divorce was incorrect and childlike, testifying rhetorically "Why would she need freedom if I didn't even put boundaries around her?"
Yasir was aware of and disapproved of Ibtihal's changing behavior, including her conversion to Christianity. He told Ibtihal's friend, Shaker, that Ibtihal's changes did not "fit with his rituals and culture." He exclaimed to his friend, Suwaed, that Ibtihal had become an "unbeliever of God." Jameel testified that Ibtihal was attending church with her in 2017 but stopped attending in 2018. She explained that Yasir knew Ibtihal was attending a Christian church. Yasir testified that he told Ibtihal to stop taking their children to church….
Next, Yasir contends that the prosecutor's use of the term "Americanized" was improper. Throughout the course of the trial, the prosecutor used the term three times. Once during opening argument when describing the evidence of motive and twice during questioning of witnesses. When the witnesses were asked if they would characterize Ibtihal as becoming more "Americanized," both witnesses disagreed, although one witness suggested that Ibtihal was "becoming more aware." On both occasions, the prosecutor moved on with questioning. The term was not used in closing argument.
We agree that under different circumstances, the term "Americanized" could be used improperly to interject an "'us' versus 'them'" bias. In this case, however, the term was used to summarize relevant evidence of motive, and particularly whether the couple disagreed on the freedoms available to Ibtihal in the United States. An objective observer could not view the use of this term as an appeal to bias or prejudice against Muslims or persons from Iraq….
And a short excerpt from Judge George Fearing's long dissent:
During trial, the State employed three converging dynamics to bias the jury: ethnicity, religion, and Americanism. I agree with the majority that evidence concerning Iraqi culture and Islam, Yasir Darraji's upbringing in Iraq, Ibtihal Darraji's change in lifestyle, and Ibtihal's conversion to Christianity held relevance to the prosecution. For example, a prosecutor may question a witness about religious belief to establish a possible motive for a crime.
But because of the divisive subject of Islam and stereotypes of Middle Eastern men, the State needed to selectively, thoughtfully, and carefully present its evidence rather than turn the trial into a contest between American culture and Christianity, on the one hand, and Iraqi culture and Islam, on the other hand. The State also should have avoided any patriotic appeals to Islam and Iraqi culture being antagonistic to Americanism.
The State gratuitously painted victim Ibtihal Darraji as Christian and American and defendant Yasir Darraji as Muslim and un-American. The State even went as far as suggesting Ibtihal was a martyr to Christianity. With its testimony and arguments to the jury, the State employed the ancient, but common, practice of portraying the victim as "us" and the accused as "them" in order to assure a conviction. I would reverse and remand for a new trial because Yasir Darraji did not receive a fair trial.
I list the State's disproportionate references during trial to Americanism, Christianity, and Islam. During its opening statement, the State promoted the United States as a refuge for the world. The State mentioned that Yasir and Ibtihal Darraji fled Iraq because of violence directed at the couple after Yasir worked in security for the United States. The State intoned: "[the Darrajis] … came here to seek the American dream." Later comments by the State's attorney, during opening, suggested Yasir interfered in Ibtihal's pursuit of the American dream.
Also, during its opening statement, the State blamed hostility between Yasir and Ibtihal Darraji, accruing after the move to the United States, to Ibtihal's becoming more "Americanized."
Fights started happening again and rumors were being spread about Ibtihal Darraji that this good life she'd come here to live suddenly wasn't looking right anymore. There were a lot of disputes about how she was becoming more Americanized. She'd spend time with friends and go dancing. She'd go drinking sometimes. These are things that were seen as unacceptable in her culture.
Other than perhaps suggesting spending time with friends, dancing, and drinking alcohol, the State never defined for the jury, during the opening, what it meant by "becoming more Americanized." Nevertheless, one who sat through the trial or reads the transcript recognizes that the State deemed "becoming Americanized," which I refer to as "Americanization," to encompass wearing western clothes, discarding the hijab, and converting to Christianity. More importantly, the term "Americanized" would lead Spokane jurors to identify with Ibtihal Darraji and distance themselves from Yasir, who wished to preserve his Iraqi culture and Islamic religion despite moving to the United States. Thus, the opening statement began the "us" versus "them" dichotomy that did not end until the jury deliberated….
The State repeatedly, repeatedly, and repeatedly mentioned Ibtihal Darraji's Christianity and Yasir Darraji's Islamism. The State often and frequently elicited testimony of Ibtihal's change in dress and shedding of the hijab. The incessant reference to Christianity and Americanization served no purpose other than to arouse the jurors. The State told the jury that Ibtihal's devotional exercises at the Union Gospel Mission began her journey to death despite no evidence supporting this assertion. The State falsely told the jury that Hamid Nahi averred that Christianity could be a death sentence to a Muslim female residing in the United States….
Yasir Darraji's prosecutor intentionally inserted a theme that undermined the credibility of Darraji because he, unlike his wife, refused to be Americanized and held to Islam. The prosecutor portrayed Darraji as the stereotypical Middle Eastern man seeking revenge against an ex-wife. The State did not need to insert ethnic and religious bias to convict Darraji, but it insisted in doing so….
There's a lot more in both opinions.
