SPOKANE, Wash. — In a scathing 59 pages, appellate court judge George Fearing called the case and charges against Darnai Vaile 'infected by racism.'
That dissenting opinion came with an appellate court ruling overturning Vaile's conviction for resisting arrest in Spokane in August 2019. In the majority opinion, the judges wrote Vaile's right to present a defense was violated.
"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," the two other judges write.
Vaile was arrested outside Peking Palace after a woman called 911 claiming he'd kissed her without permission. Vaile was later found not guilty of assaulting her, but was convicted of resisting arrest.
At trial, a Spokane County judge allowed the jury to see video of the arrest, but not hear it, claiming the recorded statements were hearsay. Vaile appealed, in part arguing the statements made on video should fall under excited utterances admissible in court.
"The trial judge suppressed his statement when he was face down, on the ground under three white police officers with one of those officers with his knee on this Black man's neck," said Lila Silverstein, an appellate public defender with the Washington Appellate Project who represented Vaile on appeal.
Silverstein agrees with Judge Fearing's criticisms, which claimed racial bigotry permeated the case from the moment of the 911 call. He criticized the woman who made the call.
"Instead of reporting Darnai Vaile to the restaurant managers and asking that he be removed from Peking Palace, [she] phoned law enforcement. Some white women view police as private security guards and protectors ready to perform their bidding," Fearing wrote. "We pejoratively label these women with the moniker “Karen.” Videos abound of Karens asking for assistance because of the innocuous presence of a Black man.
Silverstein provided the video to KREM 2. The woman who originally called the police is yelling in the background at Spokane County deputies to stop as they hold Vaile on the ground.
"You don't need to restrain him like that. He's ok," she yelled.
"The Spokane County sheriff deputies’ attack on Darnai Vaile is too often standard police procedure. In fact, one knowledgeable of encounters between African-American males and law enforcement officers would express surprise that Vaile survived the encounter without serious injury. Many Black Americans are not so lucky," Fearing wrote.
"But then the police responded in a gross overreaction," Silverstein agreed. "Numerous police officers arrived, threw Mr. Vaile to the ground, and started beating him with their batons."
KREM 2 News reached out to the Spokane County Sheriff's Office; Sheriff John Nowels called Fearing's opinion "egregious and offensive."
Sheriff Nowels' full statement reads:
While I usually refrain from commenting on court opinions out of respect for their judicial rulings and the separation of powers set forth in the United States Constitution, the dissenting opinion in this case, in my opinion, is so egregious and offensive to not only our deputies and the prosecutor’s office but especially to women and every sexual assault victim in our community and nation.
In this court proceeding, the majority reversed a trial court’s ruling regarding an evidentiary finding during the initial trial and remanded back for a new trial in the two-to-one opinion. The majority opinion also made it clear their decision was limited to the evidentiary issues raised by Mr. Vaile and that no one involved in this case, deputies nor prosecutors, was guilty of intentional racism or apathy. Furthermore, Mr. Vaile himself did not argue it on appeal.
While I do not always agree with some court rulings, most are understandable and well-reasoned opinions, as was the majority opinion in this proceeding. However, in this instance, the dissenting opinion appears to be based on wokeism, judicial activism, and the dissenter’s personal view run amuck and is not based on established law. I fear this opinion and the foundation based apparently on ideology, racial activism publications, and media reports, void of legal precedent, will further shake and fracture the already strained trust of the public in our justice system and the courts.
To read an appellate court judge describe a female victim reporting a sexual assault as a “Karen” and minimize her belief by characterizing the assault as nothing more than an “unwanted kiss” is outrageous, shocking, and an insult to all sexual assault victims. I fear opinions like this will only lead to more victims feeling disillusioned and deepening the belief and fear of sexual assault victims that they will not be taken seriously or believed.
I believe ALL people should be free of unwanted sexual advances, and victims reporting such actions should have their voice heard. The information should be thoroughly investigated, and if the legal standard to charge the suspect is met, they should face a judge or jury of their peers, and if found guilty, they should be held accountable, according to established law.
The Spokane County Prosecutor’s Office and the Spokane County Sheriff’s Office work closely together as we work to keep our community safe and serve the citizens of Spokane County. We strongly believe in the equal application of the law for everyone involved.
However, in his own words, the dissenting judge admits he does not, “In response to this court majority’s accusation of partiality, I plead guilty.” (pg 48 State v. Vaile). He also stated in his written dissent, “I recognize that no Washington case law supports dismissal solely for the conduct of the Spokane County sheriff deputies toward Darnai Vaile.”
The majority opinion expressly found the opposite, stating, “And while history, statistics, current events, and human nature must inform our decisions, they cannot be used as the basis for a decision when racism has not been raised, briefed, or found. (pg 4 and 5 State v. Vaile)
These are not the views I have of Spokane County, its law enforcement, or the prosecutor’s office. These allegations, not based in law or fact and directly opposed in the majority opinion, are offensive and unwarranted. They are an affront to all the hard-working men and women in law enforcement, the prosecutor’s office, the judiciary, and the criminal justice system as a whole.
I, as the Sheriff of Spokane County, and everyone at the Spokane County Sheriff’s Office, want to assure you, the people of Spokane County, we are committed to partnering with you to deliver a premier level of public safety with the equal application of the law for everyone with respect and professionalism. My deputies will continue to respond to ALL calls for service regardless of a crime victim’s or suspect’s race.
Fearing writes racism runs throughout Spokane County law enforcement and the justice system, pointing out data from within the county showing racial disparities in incarceration rates, delays in filing charges, arrest rates, and use of force.
Fearing pointed at what he calls the "elephant in the room": racist comments from elected prosecuting attorney Larry Haskell's wife. In those comments, she called herself a white nationalist and used racial slurs.
KREM 2 News reached out to Haskell, who has previously addressed his wife's comments.
Haskell provided this statement:
With the case still pending remand, the Rules of Professional Conduct limit the scope of my comments (for the time being). I have read the opinion(s) and believe that the proper analysis, based on general principles of law and appellate procedure, were adhered to by the majority. Neither the facts nor the caselaw support the position taken by the dissent. The dissent admits there is no legal basis for the relief proposed by its author.
The use of pejorative terms, such as labeling a crime victim to be a “Karen”, are insulting of crime victims everywhere. Minimizing the assault that occurred in this instance is simply inexplicable. Demanding that actual physical harm be done is inconsistent with legal principles of simple assault. Criticizing a crime victim for calling 911 is equally incomprehensible.
Though the dissent characterizes the entire incident and subsequent prosecution as “infected” by the “cancer” of racism from the 911 call through the trial, capable attorneys, qualified trial judges, and an appellate defense lawyer handled this matter prior to its presentation to the court of appeals. If they had seen it, it would have been assigned as error on appeal or addressed through an appropriate motion prior to trial. As the majority noted “[w]hile history, statistics, current events, and human nature must inform our decisions, they cannot be used as the basis for a decision when racism has not been raised, briefed, or found.” Slip Opinion at 4-5.
Our system of courts, established via Constitutional provisions and statutes enacted pursuant to them, are intended to insulate the judicial branch from the social and political forays taken by society and the other branches of government. The oath of a judge states that they are each to “faithfully and impartially discharge the duties of the office of judge.”
To that end, the majority correctly cites to Justice Ginsberg’s quote regarding this subject: “Courts do not, or should not, sally forth each day looking for wrongs to right, but rather should normally decide only the questions presented by the parties.” The majority opinion noted the dissent’s partiality and lack of neutrality. In response, the dissenting opinion embraced being partial.
Any allegation that is bolstered by newspaper articles, facts outside of the court record, out of state incidents, and resources that are largely untested by rigorous examination in a courtroom, are a poor basis for indictment of anyone for any reason, much less the 911 caller, the Sheriff’s office, and the deputy prosecutor/prosecutor’s office. Hopefully, we will collectively demand better than that.
Spokane County Chief Criminal Deputy Preston McCollam released a separate statement:
I’m gravely concerned the separate dissenting opinion turned back the pages on the constant fight to end violence against women in our community and across this nation. The opinion publicly suggests that the female 911 caller who reported she was sexually assaulted was a “Karen”. Any suggestion that the act was nothing more than an “unwanted kiss” greatly minimizes what in any context is and should always be viewed as (at least initially) a sexually motivated assault. To suggest otherwise or to state that a crime victim in vulnerable circumstance should take additional actions before calling 911 sets a dangerous precedent. A 911 dispatcher does not ask a crime victim what color they are, nor should they. A crime victim’s access to safety should never depend on their assailant’s skin color or on the skin color of a crime victim. Moreover when law enforcement respond to a 911 call for service they do not have all the facts and they do not always know what they are walking into, as was the case here.
This resurrection of an offensive mindset that an unwanted sexual advance should be ignored is not something I can condone. I’m concerned that this opinion will embolden all who would engage in violence against another person regardless of their race. I’m also concerned about it silencing crime victims due to fear of public and embarrassing repercussions as a result of their involvement in the investigative or prosecution process. We have fought long and hard alongside our law enforcement and community partners to stamp out such offensive conduct and make sure crime victims have access to the criminal justice system in fact and not just in words.
My office is committed to the equal application of the law in all cases. This office remains one of the most diverse workplaces within this community and while deeply disappointed with the opinion we remain committed to community safety, victim advocacy, and the equal application of the law in every matter. We have an amazing group of hard-working individuals in this office and within our law enforcement community. These individuals are committed every day to our community and work tirelessly to ensure access to justice.
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