Improper Bias Or Proper Motive Evidence?

The Washington State Court of Appeals Division Three affirmed a criminal conviction in part with the court majority rejecting the contention that the prosecutor improperly injected religious bias into the case

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 and felony harassment. 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.

We affirm Yasir’s conviction for second degree murder but reverse his conviction for felony harassment based on insufficient evidence. Otherwise, we find no error and remand with instructions to dismiss the harassment charge with prejudice and resentence Yasir on the remaining conviction. On remand, Yasir can raise any remaining sentencing issues.

Prosecution theory

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 anti-Muslim 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.

Legal principles

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.” Bagby, 200 Wn.2d at 794. 

The court

After applying an objective observer standard to the comments and evidence, we hold that Yasir did not meet his burden of showing that the prosecutor engaged in ethnic or religious based misconduct.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

FEARING, J. (dissenting)

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. State v. Dhaliwal, 150 Wn.2d 559, 579-80, 79 P.3d 432 (2003); State v. Kovalenko, 30 Wn. App. 2d 729, 748, 546 P.3d 514 (2024). 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.

At issue

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 trial counsel did not object to most of the testimony cited in this dissent. The Washington Supreme Court instructs, however, that “inaction by defense counsel [does not] excuse a prosecutor’s misconduct.” State v. Zamora, 199 Wn.2d 698, 717 (2022). 

Dissent’s view

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.

Although weak, some evidence pointed to Saad al Kawari as the killer. Ibtihal Darraji had struck Kawari weeks earlier. Kawari lived near Darraji. Kawari twice purchased gloves and cleaning solutions at Walmart on the night of January 30, 2000.

(Mike Frisch)