A prosecutor in the state of Washington received a public reprimand based on a number of statements he made during jury selection for a criminal trial.  The defendant, an American citizen of Hispanic descent, was charged with assault.   According to the stipulated facts, the prosecutor talked to potential jurors about “border security, illegal immigration, and crimes committed by undocumented immigrants including drug smuggling.”  Despite the fact that these issues were not relevant to the trial, he “repeatedly elicited potential jurors’ comments and views on these topics, referring at one point to ‘100,00 people’ ‘illegally’ crossing the border each month.”

Washington is one of the states that has adopted an anti-bias ethics provision.  Under its version of Rule 8.4(g), the state proscribes “commit[ing] a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, gender expression, or gender identity, honorably discharged veteran or military status, or marital status, where the act of discrimination is committed in connection with the lawyer’s professional activities.”  It also has a similar anti-bias provision (Rule 8.4(h)) that is tied to acts that are prejudicial to the administration of justice.  In this case, the lawyer was sanctioned for violating both provisions—along with the administration-of-justice provision to boot.  I’ve written about Model Rule 8.4(g), which has not received the widespread adoption many had hoped.  But Washington has not only enacted an anti-bias provision, but also it has used it to sanction attorneys from time to time.

You might wonder how this misconduct came to the disciplinary authority’s attention.  It turns out that the defendant appealed his conviction, arguing that the prosecutorial misconduct during voir dire deprived him of a fair and impartial trial (even though his trial attorney had not objected).  Ultimately, the Washington Supreme Court agreed with his contention and reversed the conviction.

The prosecutor received a public reprimand for his misconduct and expressed great remorse for what he had done.  In fact, there is a letter from the subject attorney that is included with the reprimand; it is worth a read.  The attorney also resigned from his position.

Link to stipulated sanction here:  https://www.mywsba.org/WebFiles/CusDocs/000000011226-0/002.pdf