stating that “[t]he prosecution’s use of the word [Negroid] does not in any way appear to be an appeal to race-based prejudices, and we reject the claim that it was improper”
How later courts described this case
- stating that “[t]he prosecution’s use of the word [Negroid] does not in any way appear to be an appeal to race-based prejudices, and we reject the claim that it was improper”
- heightened standard did not apply when an African American defendant's race was used by the prosecutor as evidence of the defendant's guilt because his race "legitimately tied to the physical and circumstantial evidence pointing to [a defendant of his race] as the 22 No. 92412-1 killer"
- prosecutor’s racist comment made outside of the jury’s presence was not an intentional appeal to racial bias that could have affected the jury’s verdict and prejudiced the defendant
- prosecutor heckled black defense attorney in a death-penalty trial, asking, " 'Where did you learn your ethics? In Harlem?' "
Written by the judges who cited it.
The opinion
Wiggins, J.
¶47 (dissenting in part) — Jonathan Lee Gentry filed a motion to remand for supplementation of the record or a reference hearing in light of our decision in State v. Davis, 175 Wn.2d 287 , 290 P.3d 43 (2012). I believe a reference hearing is necessary to examine pertinent statistics that would enable us to assess whether Washington’s death penalty is imposed in a racially discriminatory manner. Because the majority declines to grant a reference hearing, I dissent. In all other respects, I agree with the majority.
¶48 We are required to conduct proportionality review in every capital case. RCW 10.95.130(2)(b). The inquiry we *643 engage in is whether the death penalty is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Id. One of the primary goals of proportionality review is to ensure that the death penalty is not imposed disproportionately on the basis of race. State v. Cross, 156 Wn.2d 580, 630 , 132 P.3d 80 (2006); State v. Elledge, 144 Wn.2d 62, 80 , 26 P.3d 271 (2001); State v. Gentry, 125 Wn.2d 570, 655 , 888 P.2d 1105 (1995). Since Gentry’s sentencing, new data has developed concerning race and the imposition of the death penalty in Washington. This data merits a new proportionality review.
¶49 Only one other African American had received the death penalty when Gentry was sentenced. In that case, the victim and defendant were of the same race and ethnicity. Since Gentry’s sentencing, five additional African American men have been sentenced similarly (Sammie Luvene, Dwayne Woods, Cecil Davis, Covell Thomas, and Allen Gregory). Of the seven African American men sentenced to death, six received the death penalty for killing a person of a different race. 15 This statistic hints that race impacts the imposition of the death penalty and illustrates the need for a new proportionality review.
¶50 In Davis , I urged the court to conduct an evidentiary hearing on similar grounds. 175 Wn.2d at 389 (Wiggins, J., concurring in dissent). The majority there felt “constrained to note that the issue was not raised by the defendant.” Id. at 362 . In contrast to Davis , Gentry specifically requests a reference hearing to determine “whether [racial] disparities are statistically significant.” Mot. To Set Oral Arg. or To Remand for Supplementation of the R. or a Reference Hr’g in Light of State v. Davis, 175 Wn.2d 287 , 290 P.3d 43 (Sept. 20, 2012) at 6. Thus, we do not face the constraints the majority felt in Davis . This court should accordingly take this opportunity to remand Gentry’s petition for an evidentiary hear *644 ing to determine whether, statistically speaking, the imposition of Washington’s death penalty is skewed on the impermissible basis of race. The cost of any burden on the court system associated with conducting this reference hearing is negligible compared to the assurance that Washington fairly and proportionately imposes the death penalty.
¶51 I dissent in part.
After modification, further reconsideration denied May 7, 2014.
Only Caucasians (one of which is categorized as Caucasian-Native American) have received the death penalty for killing someone of the same race since Gentry was sentenced.