This is a reposting, originally published via Substack by Jerry Leclaire on May 22nd, 2023. You can subscribe to his email list here.


In criminal legal cases (as opposed to civil cases) it is the County Prosecutor’s decision to “bring charges” on behalf of the state against a potential criminal defendant—or not. Once a person is charged they face a criminal justice system which, if they fight the charge rather than accept a plea deal, will consume their time, money, and resources for a period of many months or even years—all for an uncertain outcome. If, on the other hand, a plea deal is accepted, it will, in most instances, disadvantage the accused for years to come. Either way, a County Prosecutor’s decision to level charges sets a course for the accused that is a punishment in itself. Prosecutorial decisions have the potential to ruin lives.

On May 18th an article by Kip Hill appeared in the Spokesman entitled “Black man’s resisting arrest conviction overturned by Court of Appeals; judge says case is indicative of racism in Spokane County”. Examination of the details of the case that led to this Court of Appeals opinion—and that headline—is enlightening—and is poorly covered in the article.

The current flap covered in the news article arises from a recent decision by a three-judge panel of the Washington State Court of Appeals, Division III. (For orientation, Division III is the state appellate court that hears appealed cases from all the County Superior Courts east of the Cascade crest. The Division III Appeals Court “sits” in Spokane at 500 N. Cedar St. Five judges and two commissioners serve in Division III.)

The ruling of the three judge panel that heard the appealed case of State of Washington v. Darnai Leon Vaile (appellant) hinged primarily on a rather fine point of law concerning admissible evidence in a jury trial in Spokane County Superior Court presided over by Superior Court Judge Tony Hazel. Specifically, the question was whether or not the audio portion of a short video of the event was, or was not, “hearsay”. At the original Superior Court trial the audio was considered inadmissible. The Appeals Court tribunal disagreed. Even without the jury being allowed to hear the audio at the trial, Mr. Vaile, the defendant, was acquitted of the prosecutor’s charge of third degree assault (a class C felony). Nonetheless, the jury convicted Mr. Vaile, a Black man, of resisting arrest (a misdemeanor). Mr. Vaile was sentenced to six months probation. It is this conviction that was appealed.

The three judge panel’s overall decision (click here to read the opinion) was fairly straightforward: Mr. Vaile’s conviction was overturned and the case “remanded” (i.e. returned) to the Spokane County Superior Court for reconsideration. In a very important sense this “remand” isn’t really to the Superior Court, but rather to the discretion of the County Prosecutor’s Office under Mr. Haskell. The Court of Appeals decision resets everything at square one prior to filing charges. It is an open question whether the Prosecutor will issue new charges or not. Either way, the decision isn’t likely to be covered in the news.

The three judge panel consisted of Presiding Chief Judge George Fearing, Acting Chief Judge Robert Lawrence-Berrey, and Judge Tracy Staab. Judge Staab wrote the opinion with which Lawrence-Berrey concurred. Judge Fearing, the most senior of the three, wrote a separate partial concurrence and partial dissent (starting on page 22 of the opinion) which he begins with “This appeal presents a primer on racial prejudice inside America’s criminal justice system.” It is Judge Fearing’s opinion which reporter Kip Hill finds newsworthy. In reaction, Mr. Hill solicited comments from Spokane County Prosecutor Larry Haskell, current Spokane County Sheriff John Lowell’s, and even retired Spokane County Sheriff Ozzie Knezovich—a panoply of protest over the accusation of racial prejudice.

I want to stand back from the criticisms of Judge Fearing’s opinion and start the case from the beginning. The event that is the subject of the state’s case against Mr. Vaile occurred on May 16th, 2019, at about 11:30 in the evening—a full four years ago. Julia E. Napier, 53, and her sister, Patricia Murray (age not stated) were “socializing, playing pool, and singing karaoke” at the Peking Palace on Sprague Avenue in Spokane Valley. During the evening they met Darnai Vaile, a then 23 year old, 6 foot 10 inch, more than 300 pound Black man, who studied at Lewis and Clark High School (judging by a mostly abandoned [since 2018] facebook page under his name). At one point, Vaile kissed Murray without her consent, and she called the police.

Two deputies appeared. While the deputies were talking with Ms. Murray and a gathered crowd outside the restaurant Mr. Vaile approached them saying he “wanted to tell them his side of the story”. Accounts of Mr. Vaile’s demeanor and exactly how the next few minutes went forward differ, but, regardless, Mr. Vaile wound up on the ground on his stomach with three or four officers (more had arrived) piled on top of him, one with his knee on Mr. Vaile’s head. In the process Mr. Vaile was struck with batons and handcuffed. Mr. Vaile had announced he had a knife and intentionally dropped it on the ground (one wonders if had he been given “the talk” as a young man). From the appellate court opinion:

Deputy Vicini acknowledged that Vaile was not making threats to the officers, and was not threatening the officers with the knife. Other than resisting his arrest, Vaile was not fighting with the officers. Deputy Hilton acknowledged that Vaile was not making verbal threats toward the officers or attempting to physically assault them.

You might imagine at this point that Ms. Murray and her sister would be happy with this outcome, having called the police in the first place over the alleged “assault” of an unwanted kiss. You would be wrong. Not only were no charges relating to this “assault” ever filed, but:

While Vaile was being arrested, Murray took a 10 second video of Vaile on the ground with police on top of him. As she was recording, Murray could be heard saying, “You stop right now you do not need to restrain him like that! He’s okay! He’s a gentle, kind person.”

The primary issue before the Appeals Court tribunal was whether the audio was admissible evidence. At the trial the audio was ruled inadmissible. The tribunal concluded to the contrary, i.e. that it should have been heard by the jury.

Even more telling, Ms. Murray’s sister, Julia Napier, was arrested that night for assaulting one of the deputies in defense of Mr. Vaile and in protest of his treatment by law enforcement.

The immediate upshot? According to the Spokesman:

Vaile, 23, was charged with two felony counts of assault in the second degree and misdemeanors charges of resisting arrest, obstructing, possession of a dangerous weapon and fourth degree assault. He posted his $3,000 bond on Aug. 21.

Napier was arrested for third-degree assault, resisting arrest and obstructing. Her bond was set for $10,000, which she posted on Aug. 18. [Napier was later convicted of one count of assault of a law enforcement officer, a felony.]

Here’s where we circle back to Prosecutor Haskell. It was Haskell’s office that filed the laundry list of charges listed above, no doubt hoping that Mr. Vaile would accept a plea deal (as many in a similar situation do) in the face of charges that might otherwise send him to prison if convicted in a jury trial.

In Kip Hill’s article covering the Appeals Court opinion, Haskell, Knezovich and Nowels all seem anxious to defend Ms. Murray, the white woman who called police over an unwanted kiss—and yet the issue of the “assault” of Ms. Murray herself (to say nothing of her sister Julia Napier who wound up with a felony conviction for assault of an officer) never came up.

We ought to pay attention to Judge Fearing’s criticisms of law enforcement and prosecutorial bias in Spokane County, particularly regarding Mr. Haskell. The law enforcement response to the complaint of an unwanted kiss could certainly be seen as needlessly excessive. County Prosecutor Haskell was not required to compound the error by filing a laundry list of charges. What started with a phone call over an unwanted kiss was pursued by Haskell into what has so far been a four year resource-consuming ordeal for the young man accused and a felony conviction for the original complainant’s sister.

Regardless of the issue of potential racial prejudice highlighted by Judge Fearing’s opinion, this whole case, no matter the color of the defendant, smacks more of harassment than justice—and it all leads back to the “prosecutorial discretion” of Mr Haskell’s office.

Keep to the high ground,

P.S. Close examination of this legal case has been an eye-opener for me. For decades it was my assumption that it was unwise to second-guess a jury verdict. After all, I thought, the jury examined the evidence over a long court process to which I was not party. What I did not understand is that an overzealous prosecutor, by choosing whom to prosecute, and by choosing the charges, can bring the power, complexity, and cost of our system to bear on people and circumstances that do not warrant it. Essentially, involvement with the legal system at the discretion of the prosecutor can become a punishment in itself. The “rule of law” under our legal system may well be the best there is available, but justice depends as much on the decisions made prior to court as it does to what happens in court.

Read Part 2