## Facts

- Tyler Terell Bagby, a Black college student, attended a fraternity party where he punched Austin Davis, a white partygoer, during an altercation.
- The eyewitnesses were white except for Bagby’s friend Solomon Cooper, who is Black and attempted to deescalate and remove Bagby from the party.
- Bagby was charged with residential burglary, fourth-degree assault, and harassment.
- At trial, Bagby and Cooper were the only Black individuals in the courtroom; the judge and jury were white.
- The prosecutor repeatedly asked witnesses to identify Bagby by his “nationality,” prompting answers identifying him as “Black” or “African-American,” despite Bagby being a U.S.-born American citizen and identity/citizenship not being disputed.
- The prosecutor at times referred to Davis as “the white guy” and Bagby as “the Black guy.”
- In closing, the prosecutor characterized several white witnesses as “Good Samaritans” while excluding Cooper, who had tried to stop the conflict.
- The prosecutor also questioned a witness about Bagby’s dog; the justices disagreed whether this was reversible misconduct on the record.
- Bagby was convicted on all counts; the Court of Appeals affirmed; the Washington Supreme Court granted review.

## Issues

1. Whether the prosecutor’s “nationality” questioning and selective “Good Samaritan” framing constituted an objectively flagrant or apparently ill-intentioned appeal to racial bias requiring reversal.
2. Whether unpreserved race-based prosecutorial misconduct can be treated as per se prejudicial, excusing the lack of a contemporaneous objection.
3. Whether questioning about Bagby’s dog amounted to reversible prosecutorial misconduct.

## Decision

- The Washington Supreme Court reversed the Court of Appeals, vacated the convictions, and remanded for a new trial.
- The court held that two aspects of the prosecutor’s conduct were an objectively flagrant or apparently ill-intentioned appeal to racial bias: (1) repeated “nationality” questioning that highlighted the Black defendant as “other,” and (2) portraying white witnesses as “Good Samaritans” while omitting the sole Black witness who acted to deescalate.
- The court concluded this race-based misconduct was so incurable that it was per se prejudicial, requiring reversal despite the absence of a trial objection.
- No majority agreed that the dog-related questioning, standing alone, constituted reversible error, though a plurality viewed it as additional misconduct.

## Legal Principles

- Prosecutors have a special duty to protect the accused’s right to a fair trial; appeals to racial prejudice by the State are especially egregious.
- Race-based prosecutorial misconduct is assessed from the viewpoint of an objective observer, not the prosecutor’s asserted subjective intent.
- Although prosecutorial misconduct typically requires a showing of prejudice, misconduct that is so flagrant and ill-intentioned that a curative instruction would not remedy it is treated as per se prejudicial.
- When the State injects race in a way that undermines the presumption of innocence and credibility determinations, reversal may be required even without a contemporaneous objection.

## Conclusion

The court ordered a new trial because the prosecutor’s repeated “nationality” questioning and selective moral praise of white witnesses were objectively incurable appeals to racial bias that undermined the presumption of innocence and were per se prejudicial.


State v. Bagby, 200 Wn.2d 777, 522 P.3d 982 (Wash. 2023)