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Originally published June 9, 2011 at 9:11 PM | Page modified June 9, 2011 at 9:20 PM

Seattle murder conviction tossed out over 'racist' comments

The state Supreme Court has thrown out a man's murder conviction in a 2006 gang-related shooting in Pioneer Square, ruling that the prosecutor who tried the case resorted to "racist arguments" to attack defense witnesses.

Seattle Times staff reporter

quotes Well, dang. To heck with the murder. Someone inferred racism, and that's just not right! Read more
quotes Would it have been an issue if it was an African American as the prosecutor? Read more
quotes He will be retried Next time, the attorney will be more respectable in front of 'da j... Read more

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The state Supreme Court has thrown out a man's murder conviction in a 2006 gang-related shooting in Pioneer Square, ruling that the prosecutor who tried the case resorted to "racist arguments" to attack defense witnesses.

The court, in an 8-1 ruling, found that James Konat, a veteran King County deputy prosecutor now trying a high-profile murder case, engaged in "prosecutorial misconduct" in questioning witnesses during the trial of Kevin L. Monday Jr., who was convicted in 2007 of first-degree murder and first-degree assault, and sentenced to 64 years in prison.

During the trial, Konat questioned witnesses, many of them black, about a purported street "code" that he claimed prevented some from talking to the police, according to the Supreme Court's majority opinion written by Justice Tom Chambers. In questioning some witnesses, Konat made references to the "PO-leese," the justices found.

During his closing argument to jurors, Konat also said that while witnesses denied the presence of such a code, "the code is black folk don't testify against black folk. You don't snitch to the police," according to the Supreme Court decision.

Monday, 25, is black; Konat is white.

Monday appealed the conviction on a number of grounds, claiming that Konat "made a blatant and inappropriate appeal to racial prejudice and undermined the credibility of African-American witnesses based on their race," according to the Supreme Court.

The state Court of Appeals agreed that Konat had appealed to racial prejudice during the trial, but upheld Monday's conviction.

But the Supreme Court, in Thursday's ruling, cited Konat's comments as grounds for the conviction to be overturned, saying that they cast doubt on the credibility of the witnesses based on their race. One justice called the deputy prosecutor's comments "repugnant."

"Defendants are among the people the prosecutor represents. The prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated," Chambers wrote.

"The State repeatedly invoked an alleged African American, anti-snitch code to discount the credibility of his own witnesses ... it is deeply troubling that an experienced prosecutor who, by his own account, had been a prosecutor for 18 years would resort to such tactics," the ruling said.

The justices contend that the only reason that Konat used the pronunciation "PO-leese" was to "subtly, and likely deliberately, call to the jury's attention that the witness was African American."

Justice James M. Johnson, the lone dissenter, said that even if Konat's comments "arguably tainted the jury's impressions," the murder case still was proved beyond a reasonable doubt.

Seattle police said that Monday fired at least 10 shots at Francisco Roche Green near the corner of Yesler Way and Occidental Avenue South in the early hours of April 22, 2006. Monday was also accused of firing gunshots at a vehicle and wounding the driver and a passenger. The incident was caught on video by a street musician who was in the area when shots were fired.

King County Prosecuting Attorney Dan Satterberg said he spoke with Konat after the trial and told him his comments were unacceptable. In response, all deputy prosecutors have been through retraining about potential prosecutorial misconduct, Satterberg said on Thursday.

Konat, 53, could not be reached Thursday to comment.

He is lead prosecutor in the trial of Isaiah Kalebu, who is charged with aggravated murder in the slaying of Teresa Butz and the rape of her partner in their South Park home in July 2009.

A spokesman for Satterberg's office said Konat was not formally disciplined.

Konat's words "do not represent the view of this office. It was regrettable," Satterberg said. He called Konat's method of explaining the so-called "code" in which witnesses don't talk to prosecutors or police "inartful and offensive."

But in response to Monday's appeal in 2008, the Prosecutor's Office maintained that Konat hadn't done anything wrong.

"The prosecutor's comment in final argument that 'Black folk don't testify against black folk' was nothing more than a summary of evidence in the case, consistent with the realities of the lack of cooperation and hostility by most of the transactional witnesses who testified. This was not prosecutorial misconduct," according to the filing written by now-retired Senior Deputy Prosecutor Lee Yates.

Satterberg said Monday will be retried, but a different deputy prosecutor will be assigned to the case.

Sarah Dunne, legal director for the American Civil Liberties Union of Western Washington, which filed a brief in support of Monday's appeal, said Konat's "behavior undermined the right to a fair trial."

Defense attorney Nancy Collins, who represented Monday in his appeals, said in an email Thursday that it's "unfortunate that any prosecutor needed to be reminded of these basic principles in our justice system."

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com

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