SPOKANE — One of the state’s most prominent appellate judges has castigated his colleagues, ripped on police racism and denounced prejudiced prosecutors in a blistering opinion stemming from the violent 2019 arrest and subsequent prosecution of a Black man who kissed a white woman against her will at a Spokane-area restaurant.
Judge George B. Fearing, chief of Division III of the Washington Court of Appeals in Spokane, wrote that the case involving the beating and arrest of Darnai Leon Vaile by Spokane County sheriff’s deputies “presents a primer on racial prejudice inside America’s justice system.”
Racism, he said, “infected” the case from the minute the woman called 911 to the prosecutor’s closing arguments at Vaile’s trial — highlighting frequent improprieties found throughout the legal system that his colleagues aren’t doing enough to call out. (The full opinion can be found at st.news/criminal-legal-racism. Fearing’s separate opinion begins on page 22.)
Fearing’s dissenting opinion is almost 60 pages. It covers topics that went unmentioned during Vaile’s appeal, but, according to the judge, cast a shadow over the case from its outset.
The judge said he found racist tropes and stereotypes abounded in the case: the woman who called police; the deputies’ violent response to an “angry Black man” suspect; and charges of resisting arrest, which Fearing said are used “as a form of racial oppression” that “function as a means of targeting people of color who ‘disrespect’ authority.”
Vaile was never charged with a crime for the alleged kiss but faced charges of felony assault and resisting arrest for what happened after deputies arrived. The woman who called 911 testified on Vaile’s behalf at his trial.
Vaile was arrested Aug. 16, 2019, outside the Peking Palace restaurant in Spokane Valley after he allegedly approached and kissed a woman who was dining with her sister. Court documents do not detail the circumstances of the alleged kiss or whether the woman and Vaile had any prior interactions.
The woman called 911, and the sheriff’s office sent deputies — a lot of them.
“The arrival of six to eight … patrol cars occupied by an unknown total of deputies for a nonconsenting kiss was overkill,” Fearing wrote. “But represented a typical response to an accusation against a person of color.”
The deputies said Vaile — 6-foot-10 and 300 pounds — was angry and approached them aggressively, claiming he had a knife. The deputies responded by battering him with flashlights and fists, taking him to the ground and handcuffing him after a struggle.
A jury acquitted Vaile of two counts of assault but found him guilty of resisting arrest — a conviction he appealed.
Fearing and the other appellate judges who decided the case, Tracy Staab and Robert Lawrence-Berrey, unanimously vacated the conviction and sent the resisting arrest charge back to Spokane County Superior Court.
All three of the appellate judges found the trial judge improperly excluded evidence: the audio from a cellphone video of his violent arrest, in which Vaile can be heard trying to cooperate with the deputies as they beat him.
Several witnesses, including the woman who called 911, disputed deputies’ version of the events and said Vaile did nothing to threaten the officers before they jumped him.
The trial court disallowed the audio, saying it was hearsay. But the judge allowed deputies to introduce similar statements into evidence, according to the pleadings. The appeals judges said Vaile’s statements qualified as “excited utterances” that should have been allowed.
But that’s where Fearing and his colleagues’ opinions diverge.
“Since the undisputed facts, including the trial transcript, demonstrate racial prejudice blighting the prosecution of Darnai Vaile, I would also reverse the conviction and require both sides to further brief and discuss the conduct of law enforcement,” the “overcharging” of Vaile with crimes in which police were the only victims, and the “racial innuendoes employed by the prosecutor at trial,” Fearing wrote.
The other judges said Fearing’s conclusions were drawn from findings that weren’t raised in Vaile’s trial or appeal — and that by introducing issues on his own, he “raises concerns of partiality and lack of neutrality.”
Fearing’s opinion cites research, news articles and other documentation of racism in the criminal legal system that he believes are relevant to Vaile’s case.
The majority acknowledged that while those documents might inform the court, “they cannot be used as a basis for a decision when racism has not been raised, briefed or found.”
“This is not to say it did not exist in this case,” Fearing’s colleagues wrote. “But the separate opinion’s conclusion of racism relies on information outside the record, facts that have not been found, and issues that have not been raised.”
Fearing, in response, said he was doing what the Washington Supreme Court had asked of the state’s judges in a letter issued just days after the murder of George Floyd by Minneapolis police on May 25, 2020.
The Supreme Court justices, who normally only answer the legal questions presented on appeal, unanimously called on lawyers, judges and courts across the state to do more to address longstanding institutional racism.
“As judges, we must recognize the role we have played in devaluing Black lives,” the justices wrote. “The legal community must recognize that we all bear responsibility for this ongoing injustice, and that we are capable of taking steps to address it, if only we have the courage and the will.”
In his opinion, Fearing singled out the “long history of bigotry and hatred toward racial minorities” in Spokane and the inland Pacific Northwest, with its reputation as a haven for white supremacists such as the Aryan Nations, and the checkered history of law enforcement, citing ongoing racial disparities in arrests and prosecutions of people of color in Spokane County.
Finally, he cites what he calls the “elephant in the room” — the fitness of elected Spokane County Prosecuting Attorney Larry Haskell, who has distanced himself from racist comments made by his wife, but insists she is not a racist.
“The elected Spokane County prosecuting attorney’s wife declares herself a white nationalist, warns of a race war, [and] decries the end of the white race,” Fearing wrote. He also noted she has openly used racist slurs.
“A public official’s refusal to recognize someone with such vigorous, vast, vituperative and venomous views to be racist defies reason and common sense,” Fearing wrote. Haskell, despite claiming he does not subscribe to his wife’s views, has “failed to loudly and publicly denounce” them, Fearing wrote, and suggested Haskell sympathizes with her.
As for his colleagues’ concerns over his impartiality, Fearing wrote, “I plead guilty.”
“I confess to this bias because of America’s elongated history of slavery, servitude, the Ku Klux Klan, White Citizens’ Councils, night riders, Christian cross burnings, violence, lynching, hatred …,” he wrote in a list that continues for nearly three pages.
“History persists,” Fearing wrote.