Time to take back “Woke” (and “Freedom”)

Words are encoded symbols. To paraphrase an old saying, the meaning of a word is in the mind of the beholder. To me, a person using the word “woke” as a term of disparagement is in danger of identifying themself as willfully—and often angrily— ignorant of history, a person who is likely spoon-fed most of their news from Fox News, Newsmax, Tucker Carlson or worse. After all, the literal meaning of “woke” is “awakened”, i.e. not asleep. Who but a right wing Republican celebrates wearing blinders, being asleep, willfully ignorant, eyes firmly closed?

Of course, using “woke” as a term of disparagement may light up rather different images in the minds of those speaking and hearing it. That, of course, is a basic trouble with language—meanings morph and blur.

I was recently taken aback when newly elected Spokane County Sheriff John Nowels was quoted in the Spokesman invoking “wokeism” as he criticized Washington State Appeals Judge George Fearing’s opinion pointing out the institutional racism in the Spokane County Superior Court trial conviction of Darnai Vaile:

Nowels wrote that “the dissenting opinion [Fearing’s] appears to be based on wokeism, judicial activism, and the dissenter’s personal view run amuck and is not based on established law,” using the phrase “woke” that is often employed by conservative political thinkers to criticize what they see as overreactions to calls for greater social justice.

(I give some credit to Kip Hill for highlighting the meaning of the word “woke” in the Nowels quote.) 

To me, anyone using “woke” as a disparaging buzzword had better explain exactly what they mean. To disparage being awake suggests the speaker lacks the maturity to learn and understand the consequences of our warty history of treatment of minorities, much less the maturity to consider modifying their speech and actions in light of that history. I might suspect such a speaker believes children should be taught only the myths—a mythic history that must deny or gloss over the stories of racial slavery, the 3/5ths clause, the manifest reason the Civil War was fought (hint: it wasn’t “state’s rights” or “the Lost Cause”), the political resolution of the Civil War, the Jim Crow era, lynchings, race-based voter suppression then and now, the treatment of and treaties made and broken with native Americans, redlining, restrictive covenants, and more.

I endeavor to be “woke” to the fullness of our history, warts and all, and I am suspicious of anyone who suggests that being “woke” is a bad thing. Awareness of our past offers a path toward making a better future for everyone. If you don’t know history you risk repeating it. I don’t want to go back there. 

We need to take back “woke”—and explain to others what it means to us. When a Sheriff Nowels uses woke as a term of disparagement we ought to ask him exactly what the word lights up in his brain. Is he, too, so self-blinkered that he cannot acknowledge our history and lacks the introspection necessary to recognize how that history still affects us? If so, that is a worrisome viewpoint for a sheriff. 

Keep to the high ground,

Jerry

P.S. The “judicial activism” of the Nowels quote rings in my ears from my youth as a slur popularized by the infamous John Birch Society. It was a slur leveled at the Supreme Court that at the time was led by Chief Justice Earl Warren. The “Warren Court” (remember “Impeach Earl Warren”?) read in our Constitution rights the reactionary John Birch Society didn’t like. Perhaps the first among the Warren Court’s decisions the JBS didn’t like was Brown v. Board of Education, the decision meant to end government sanctioned segregation in public schools. Today’s Republican Party follows closely on the JBS doctrine. Listen or read “How a Secretive, Extremist Group Radicalized The American Right”

P.P.S. There is a comprehensive discussion of the origins, popularization, and recent attempt to capture the term “woke” in Wikipedia. It is an interesting read.

P.P.P.S. “Freedom” is another word we need to take back. What a significant number of Republicans actually mean when they use the term is the “freedom” is amply illustrated by their legislative actions over the last year—and their definition is makes a mockery of the word. Jamelle Bouie’s brilliant essay in the New York Times, “The Four Freedoms, According to Republicans”, sums it up:

There are, I think, four freedoms we can glean from the Republican program.

There is the freedom to control — to restrict the bodily autonomy of women and repress the existence of anyone who does not conform to traditional gender roles.

There is the freedom to exploit — to allow the owners of business and capital to weaken labor and take advantage of workers as they see fit.

There is the freedom to censor — to suppress ideas that challenge and threaten the ideologies of the ruling class.

And there is the freedom to menace — to carry weapons wherever you please, to brandish them in public, to turn the right of self-defense into a right to threaten other people.

Roosevelt’s four freedoms were the building blocks of a humane society — a social democratic aspiration for egalitarians then and now. These Republican freedoms are also building blocks not of a humane society but of a rigid and hierarchical one, in which you can either dominate or be dominated.

It is time check out the Election Landscape–here’s how

All politics are local, but with our ever more nationally focused news coverage it often harder to learn about the candidate for local office in this August’s municipal primary—who might live in your neighborhood and with whom you could meet face-to-face—than it is to focus on the newest candidate for the U.S. Presidential election that is more than a year away. 

In mid-July, if you’re a registered voter in Washington State, a primary election ballot for municipal races will appear in your mailbox. Now is the time to pay attention. You can avoid what used to be my response to the municipal primary ballot: “Huh? There’s an election this year?” 

Fortunately, thanks to county and state websites it is now possible to orient yourself in the election landscape without relying on what you’re fed by local media. The goal of this blog post is to orient you to official sources of information by using the City of Spokane municipal elections as an example. (I expect that many other states maintain similar official databases, but, confusingly, each state has its own rules and requirements dating back to our founding as a nation, a fact that emphasizes the importance of paying attention to local and state governance.)

In the State of Washington, the office of the Secretary of State (SOS) maintains an online tool for voters, vote.wa.gov. Visit the site and enter your voter information. Then, in the left hand column click “Who Filed”. Voila! Up pops the list of candidates who will appear on your primary ballot. This list is gathered by the SOS from data supplied by each county’s elections office. “Filing week” with the county elections offices was May 15-19. Only candidates who filed during that week will appear on the August primary ballot—there is no more guess work about who’s running. 

In my case, living in the City of Spokane City Council District 2, there are seventeen candidates running for six elective offices. (Two are Superior Court [county-wide] judges who are running unopposed, so the list is effectively fifteen candidates among whom I get to choose for four elective positions.)

That is still too many names to keep track of, so I’m going to go out on a limb here and suggest that you can glean a pretty clear idea who is serious and competitive among these candidates by researching public records. By law, the Washington State Public Disclosure Commission (PDC) maintains a database of campaign contributions at PDC.wa.gov. Once a candidate starts accepting campaign contributions they are required to register and file reports with the PDC at regular intervals. As a rule, any truly viable candidate for elective office will have filed with the PDC and started reporting well before the May county elections office “filing week”. (Also note that some aspirational candidates file with the PDC and then never get around to filing with the county elections office to appear on the ballot.)

PDC.wa.gov takes some getting used to. Once you’re there, click “For Voters and the Public” in the upper lefthand corner. Then, under the heading “Political Disclosure Reports”, click “Candidates”. On the resulting page you’ll need to enter 2023 for the “Election Year” and (in my example) “City of Spokane” for the “Jurisdiction”. (This search function is quite fussy. One needs to keep playing with it. For example, it likes “Spokane Co”, but not “Spokane County” for “Jurisdiction”. “City of Spokane” also pulls up “City of Spokane Valley”.)

So where does that leave us with, say, the race for Mayor of the City of Spokane?

Five names will appear on the August primary ballot, but only two, Lisa Brown and Nadine Woodward, have raised campaign funds to date, 158K and 312K, respectively. (Tim Archer reported $150, apparently from a relative, Frances Archer.) Archer and the other two, Stevens and McKann, may share a debate stage with Ms. Brown and Ms. Woodward, but seem highly unlikely to mount any sort of effective campaign. (Note: Legally one must report one’s own monetary contributions to one’s campaign. Lack of reporting any contributions at all suggests a complete lack of a serious campaign effort.) In our current voting system (as opposed to ranked choice voting) these extra three who will appear on the ballot along with Ms. Brown and Ms. Woodward are likely, at most, to serve only as potential spoilers, siphoning votes from the likely frontrunners. (It is interesting to note that three more aspirants for the mayorship who signed up earlier with the PDC never filed with County Elections—Casillas, Kleven, and Legault. None reported raising any funds either.)

Similarly, Betsy Wilkerson and Kim Plese are the only two reporting campaign contributions to the PDC to date, 52K and 91K, respectively, for the position of City Council President of the City of Spokane. Andrew Rathbun signed up with the PDC on May 22nd, seemingly as an afterthought afterfiling with county elections. Mr. Rathbun raised significant funds in the 2019 election cycle as a candidate first for Mayor and then for City Council Member from District 3 (NW). He made it to the November general in District 3 but lost to Karen Stratton for the City Council position. This year he bears watching, but he seems to be off to a very late start. 

There are six City Council seats in the City of Spokane, two from each of three Districts (click here for a map). One seat from each District comes up for election in consecutive odd-numbered years. This year it is “Position 1” from each District that appears on the ballot. 

In District 1 (NE Spokane) Lindsey Shaw and Michael Cathcart have both raised funds. No one else is on the ballot.

In District 2 (South Hill plus) Paul Dillon, Cyndi Donahue, and Katey Treloar have all raised campaign funds. Mike Naccarato reports none so far (although he has a campaign website on which he apparently spent some money)—and only signed up with the PDC last Friday, June 2. 

District 3 (NW Spokane) is swarmed with candidates. Seven are signed up with the PDC, six of whom filed with Elections. Of those six, four report raising campaign funds, Esteban Herevia (13K), Kitty Klitzky (3.5K), Christopher Savage (8K), and Randy McGlenn (4.1K).

I urge you to do your own homework to see who will appear on your ballot. Take the opportunity to meet and talk with the candidates. Visit their campaign websites, their Facebook pages, their blogs. These are localcandidates, after all. That’s the point. Support the ones you like by talking them up with your friends and acquaintances, by posting about your support on social media, by making a campaign contribution, and/or working with their campaigns. This is democracy at work. It’s messy and complicated—but it’s the best system around. If we don’t participate we will lose the whole “By the People” piece upon which our country was founded.

Keep to the high ground,

Jerry

P.S. While I believe that the reported campaign contributions can tell us who is actually mounting a potentially viable campaign, the absolute amount of money a campaign has amassed is no guarantee of success. That success will depend on how the money is spent balanced against many other factors—especially the participation of the electorate. 

P.P.S. The order in which I listed the candidates for City of Spokane elected offices above is the order in which I would currently rank them if we had adopted ranked choice voting. Each front runner (and sometimes the second listed) in my ranking is someone I have met and whose work and qualifications I respect. I reserve the right to change my ranking—but I would be surprised if I do.

There is a lesson screaming at us from the past

Big ideas can have big consequences. In 1997 William Strauss and Neil Howe published a book entitled The Fourth Turning: An American Prophecy, part of what is now referred to as part of “Strauss–Howe generational theory”. It is an effort to describe patterns and predict the future based on cycles of generational cohorts. The Fourth Turning, among others of their books, helped popularize terms familiar to us, e.g. Millennials and Generations X, Y, and Z. A basic theme of the book is “…the idea that every 80 years of American history has been marked by a crisis, or ‘fourth turning’, that destroyed an old order and created a new one.” Strauss and Howe suggested that after around 80 years the people that most vividly remember the last calamity—and were most affected by it—have died off, and with them has died much of the generational memory of that last cataclysm. With that lost of generational memory of the last major trauma comes the likelihood of repeating it. 

Steve Bannon, once called “the Leni Riefenstahl of the Tea Party movement” (by Andrew Breitbart), and the man who turned Trump’s 2016 faltering campaign into an electoral success, was so fascinated by The Fourth Turningthat he, in 2010, wrote and directed a documentary film entitled Generation Zero based on the book, produced by David N. Bossie for Citizens United Productions (yes, that Citizens United). 

Last Monday, Memorial Day, as some of us paused to remember those who died in the cataclysm of World War II, Professor of History Heather Cox Richardson published a piece that, for me, brought the Strauss-Howe concept of die off of memory leading to a fourth turning to full circle. In a Substack column (copied below), Richardson pulled quotes from an eight page pamphlet published March 24, 1945 by the U.S. Army, entitled “FASCISM!”. If you have a few minutes, I urge you to click that link and read the original (as well as Richardson’s post). If you read the original keep in mind that it was written and disseminated as the war still raged, before the beginning of the Cold War, before the communist takeover of China under Mao was complete, and before the “Red Scare” of the McCarthy era. In other words, place the pamphlet in its proper place in history. 

Richardson’s post based on the WWII pamphlet offers a stark reminder for me of exactly the loss of generational memory we are now experiencing as the last of WWII veterans go to their graves—and their stories with them. We would do well to see the parallels between the fascism described in the pamphlet and the actions of prominent parts of the modern day Republican Party. We would do well to remember not just those who fought and died in WWII but why they fought and died, lest The Fourth Turning, with the aid of the like of Steve Bannon, forces us to re-live something like that horror.

Keep to the high ground,

Jerry

May 29, 2023

HEATHER COX RICHARDSON

MAY 29, 2023

Beginning in 1943, the War Department published a series of pamphlets for U.S. Army personnel in the European theater of World War II. Titled Army Talks, the series was designed “to help [the personnel] become better-informed men and women and therefore better soldiers.”

On March 24, 1945, the topic for the week was “FASCISM!”

“You are away from home, separated from your families, no longer at a civilian job or at school and many of you are risking your very lives,” the pamphlet explained, “because of a thing called fascism.” But, the publication asked, what is fascism? “Fascism is not the easiest thing to identify and analyze,” it said, “nor, once in power, is it easy to destroy. It is important for our future and that of the world that as many of us as possible understand the causes and practices of fascism, in order to combat it.”

Fascism, the U.S. government document explained, “is government by the few and for the few. The objective is seizure and control of the economic, political, social, and cultural life of the state.” “The people run democratic governments, but fascist governments run the people.”

“The basic principles of democracy stand in the way of their desires; hence—democracy must go! Anyone who is not a member of their inner gang has to do what he’s told. They permit no civil liberties, no equality before the law.” “Fascism treats women as mere breeders. ‘Children, kitchen, and the church,’ was the Nazi slogan for women,” the pamphlet said.

Fascists “make their own rules and change them when they choose…. They maintain themselves in power by use of force combined with propaganda based on primitive ideas of ‘blood’ and ‘race,’ by skillful manipulation of fear and hate, and by false promise of security. The propaganda glorifies war and insists it is smart and ‘realistic’ to be pitiless and violent.”

Fascists understood that “the fundamental principle of democracy—faith in the common sense of the common people—was the direct opposite of the fascist principle of rule by the elite few,” it explained, “[s]o they fought democracy…. They played political, religious, social, and economic groups against each other and seized power while these groups struggled.”

Americans should not be fooled into thinking that fascism could not come to America, the pamphlet warned; after all, “[w]e once laughed Hitler off as a harmless little clown with a funny mustache.” And indeed, the U.S. had experienced “sorry instances of mob sadism, lynchings, vigilantism, terror, and suppression of civil liberties. We have had our hooded gangs, Black Legions, Silver Shirts, and racial and religious bigots. All of them, in the name of Americanism, have used undemocratic methods and doctrines which…can be properly identified as ‘fascist.’”

The War Department thought it was important for Americans to understand the tactics fascists would use to take power in the United States. They would try to gain power “under the guise of ‘super-patriotism’ and ‘super-Americanism.’” And they would use three techniques:

First, they would pit religious, racial, and economic groups against one another to break down national unity. Part of that effort to divide and conquer would be a “well-planned ‘hate campaign’ against minority races, religions, and other groups.”

Second, they would deny any need for international cooperation, because that would fly in the face of their insistence that their supporters were better than everyone else. “In place of international cooperation, the fascists seek to substitute a perverted sort of ultra-nationalism which tells their people that they are the only people in the world who count. With this goes hatred and suspicion toward the people of all other nations.”

Third, fascists would insist that “the world has but two choices—either fascism or communism, and they label as ‘communists’ everyone who refuses to support them.”

It is “vitally important” to learn to spot native fascists, the government said, “even though they adopt names and slogans with popular appeal, drape themselves with the American flag, and attempt to carry out their program in the name of the democracy they are trying to destroy.”

The only way to stop the rise of fascism in the United States, the document said, “is by making our democracy work and by actively cooperating to preserve world peace and security.” In the midst of the insecurity of the modern world, the hatred at the root of fascism “fulfills a triple mission.” By dividing people, it weakens democracy. “By getting men to hate rather than to think,” it prevents them “from seeking the real cause and a democratic solution to the problem.” By falsely promising prosperity, it lures people to embrace its security.

“Fascism thrives on indifference and ignorance,” it warned. Freedom requires “being alert and on guard against the infringement not only of our own freedom but the freedom of every American. If we permit discrimination, prejudice, or hate to rob anyone of his democratic rights, our own freedom and all democracy is threatened.” And if “we want to make certain that fascism does not come to America, we must make certain that it does not thrive anywhere in the world.”

Seventy-eight years after the publication of “FASCISM!” with its program for recognizing that political system and stopping it from taking over the United States, President Joe Biden today at Arlington National Cemetery in Arlington, Virginia, honored those who gave their lives fighting to preserve democracy. “On this day, we come together again to reflect, to remember, but above all, to recommit to the future our fallen heroes fought for, …a future grounded in freedom, democracy, equality, tolerance, opportunity, and…justice.”

“[T]he truest memorial to their lives,” the president said, is to act “every day to ensure that our democracy endures, our Constitution endures, and the soul of our nation and our decency endures.”

—

City of Spokane government in transition

A week ago Governor Jay Inslee appointed current City of Spokane City Council President Breean Beggs to fill the Spokane County Superior Court Judge position that comes open this July 1st with the retirement of Judge Michael Price. Mr. Beggs will run to keep his new seat on the Superior Court in the fall of 2024. It remains to be seen if he’ll have a challenger.

Beggs, skilled legal mind and one of the smartest and most even-tempered people I’ve ever met, announced earlier this year that he would not seek re-election as City of Spokane City Council President this fall after ably serving seven years in city government. 

Beggs’ departure from the City Council Presidency will leave a gap in city government with six months to go before the beginning of 2024 when those elected this November will take their seats. As with any organization, in times like these one needs to consult the bylaws by which the organization was established. In this case those bylaws are the City of Spokane City Charter,written and adopted when we switched to a “strong mayor” form of government in January 2001. 

Article II, Sections 8(B&C): Vacancies specify that in the event of a city council president or mayoral vacancy the city council members, by majority vote, “may elect one of their number to the vacant office” to fill the position. (Alternatively, the council members may, by majority vote, select “a qualified person” from outside the council as long as that person is a resident in the district represented [see P.S.].)

Since serving effectively as City Council President requires more than a passing knowledge of the institution—and, since there is only a half year to go before those elected this November take office, it seems entirely logical for the council to elect one of the current council members (CMs) to serve as President for the next six months. CM Lori Kinnear is the very logical choice. Ms. Kinnear served in Spokane City government before she was first elected CM from District 2 (South Hill plus) in 2015. She has served as council president pro tem when Mr. Beggs was absent. She knows the job. CM Kinnear as council president has not yet been voted by the council, but that is likely in the next few weeks. (See the Spokesman article for more detail.)

The Spokane City Council is composed of seven voting members, two from each of three districts and the council president. Making CM Kinnear Council President will leave an open seat on the council from District 2. As Nate Sanford put it in the Inlander:

If you’re looking for work,there may be a job opening at Spokane City Hall this summer. 

The position: interim City Council member.

If CM Kinnear’s position on the City Council remains unfilled until 2024 (when the winners of the November election take office), it will somewhat change the dynamic of the Council. With only six voting Council members the more liberal members of the Council would still have a majority over the two (Jonathan Bingle and Michael Cathcart) who are more conservative, but the liberal members would no longer have the votes to override a veto by the mayor. Section 16: Ordinances – Signing and Attesting specifies that a veto override requires “a minimum five affirmative votes”.

Now might be a good time for some orientation. 

The mayor and the city council president are both elected city-wide. The members of the council (CMs) are elected two each from three districts: District 1 (NE), District 2 (South Hill plus), District 3 (NW). (Click here for a map.) Every two years (in odd numbered years like this year), one seat from each council district comes up for election for a four year term. Thanks to writers of the City Charter we adopted in 2001 there is a two term limit on elected officials in the City of Spokane (except for the three municipal court judges). 

Here’s the current composition of the Council:

District 1 (NE):

Michael Cathcart (Term: 2020-2023) up for re-election this fall

Jonathan Bingle (Term: 2022-2025)

District 2 (South Hill)

Lori Kinnear (Term: 2020-2023) term limited out—open seat this fall

Betsy Wilkerson (Term: 2022-2025) Running for Council President this fall. If elected, this seat will be filled (thru 2025) by a replacement based on majority vote of the remaining members of the Council. 

District 3 (NW)

Karen Stratton (Term: 2020-2023) term limited out—open seat this fall

Zack Zappone (Term: 2022-2025)

Just how attractive is an “interim City Council member” position that will open up on July 1 and run only to December 31st? It will require civically-minded person willing to “stand in” for six months with little to no possibility of using the appointed incumbency as a springboard to election to the same seat for a following four year term. There are already four people running for CM Kinnear’s current seat this fall. Candidate registration for the fall election is already closed. So if it were feasible to learn the job and organize and run a campaign simultaneously, that option isn’t really open. The pay, at about $4000/month, for a job that, if done well, is all-consuming, is not likely to attract a professional (e.g. an accountant) away from current employment. It will be interesting to see if anyone steps forward and applies.

Campaigns being what they are these days (even for municipal elections) it would probably be unwise for one of the four current candidates for CM Kinnear’s empty seat to step forward—and there is no guarantee the Council would think it wise to appoint one. In any case the only one of the candidates whose resume includes time spent working in City of Spokane government is Paul Dillon. 

It should be an interesting final six months in Spokane municipal government. Thanks to term limits the following year we will lose the long-standing expertise of CMs Kinnear and Stratton. Watch carefully for candidates with some administrative experience. In an upcoming blog post I’ll have a look at the candidates.

Keep to the high ground,

Jerry

P.S. Interestingly, the way the two term limit is worded in Section 6(A): Qualifications anyone who had previously served out 8 years as Council President or as a Council Member, although likely well qualified, would be ineligible to come back for six months and serve in a position from which they had termed out—a possibly unintended consequence of the Charter writer’s zeal for term limits.

The role of systemic racism

On Monday, May 22nd, Kip Hill’s article in the Spokesman reported “Spokane County Prosecutor’s Office won’t retry Black man whose convictions prompted charge of racism by appellate judge.” This development needs extended context. Darnai Vaile, the “Black man” of the headline, was convicted of two counts of resisting arrest in a Spokane County Superior Court jury trial and sentenced to six months probation. Vaile’s arrest, charging by the prosecutor, and jury-conviction (on only the least of the charges the prosecutor filed) stemmed from an incident that occurred at Peking Palace in Spokane Valley in May of 2019. 

The incident began with a 911 call by a white woman alleging that Mr. Vaile gave her an unwanted kiss. A number of Spokane County Sheriff’s deputies responded. Mr. Vaile was soon pinned on the ground, hand-cuffed, arrested, and charged with multiple crimes, not one of which concerned the original complaint. In fact, the original 911 caller’s short cell phone video of the arrest was a major piece of evidence offered in Mr. Vaile’s defense at trial. Furthermore, the caller’s sister was also arrested and charged that evening (and later convicted) of an assault on a law enforcement office due to a scuffle over the treatment of the defendant.

Key to my understanding of this case is that the criminal charges that Prosecutor Larry Haskell’s office (as “the state”) brought against Mr. Vaile had everything to do with the police handling of the call and the accused—and little or nothing to do with the allegations made in the call itself. What was actually on trial in Superior Court was the interaction between Mr. Vaile and the sheriff’s deputies. 

First, take note that Mr. Vaile, unlike nine out of ten defendants facing a laundry list of charges, did not knuckle under and accept a plea deal in order to avoid the uncertainty, expense, and time-consumption of a jury trial. Instead, four years of his life have been spent fighting the charges and the conviction. It would, arguably, have been easier to enter a guilty plea to a lesser charge and some reduced level of punishment. Of course, had he done as many feel forced to do, Mr. Vaile would have lived for some time with the considerable disadvantage in society of a criminal conviction on his record. 

Mr. Vaile and his legal defense took his resisting arrest conviction and sentence of six months probation to the Washington State Court of Appeals, Division III, primarily on technical-sounding grounds. During the trial Spokane County Superior Court Judge Tony Hazel ruled that the cell phone audio—but not the video—recorded by the 911 caller during the police takedown of Mr. Vaile could not be presented to the jury because it constituted “hearsay” based on “the rules of evidence”. 

All three judges of the three judge panel of the Court of Appeals concurred that the audio was, in fact, not hearsay and was, therefore, admissible at trial. On that basis, the “majority opinion” [that is, the joint opinion of two of the three judges] states, “We reverse Vaile’s conviction for resisting arrest and remand for a new trial.” As a practical matter “remand for a new trial” offers the possibility that the Prosecutor will ask the Appeals Court to approve dropping the charges and avoiding everyone enduring a second trial—essentially giving up on tying up Mr. Vaile any further. “Remand for a new trial” allows the Prosecutor’s office to save face by bowing out. And that is exactly what they’ve just done:

“Given that Mr. Vaile was acquitted on the felony charges and only the simple misdemeanor charges of resisting arrest remain, the State [the Prosecutor’s Office under Mr. Haskell] has determined that retrial would neither be a prudent use of judicial and administrative resources, nor further any deterrent or protective purpose,” [Deputy Prosecutor] McCollum wrote. The office is also not seeking further review of the case by the Washington Supreme Court.

The two of the three judges who wrote the Appeals Court “majority decision”, Judges Tracy Staab and Robert Lawrence-Berrey, seemed anxious to limit their ruling to only those issues specifically put to them by the written appeal, even as they acknowledge that “…this is an emotionally and racially charged case.” The third, Judge George Fearing, concurred that the trial court erred in excluding the audio evidence, but went much further [Bold is mine]: 

Like the majority, I would reverse Vaile’s conviction for resisting arrest, but, unlike the majority, I would direct dismissal of the charge based on race-based government misconduct. Reversal and remand for a new trial does not suffice to correct the prejudice debasing African-American Vaile’s prosecution.

As I understand this legal jargon, “dismissal of the charge” (had it been the majority opinion) would have ruled out a second trial. More importantly, a majority opinion from the Appeals Court of “race-based government misconduct” would have spotlighted the race-based prejudice of our region even more than the local media has so far reported. 

Judge Fearing pulls no punches. He opens his “(concurring/dissenting in part)” opinion with “This appeal presents a primer on racial prejudice inside America’s criminal justice system.” On page 36 of Fearing’s “(concurring/dissenting in part)” opinion he summarizes the reason for favoring dismissal:

This court [i.e. the majority decision by the other two judges] reverses and remands for a new trial the conviction for resisting arrest on evidentiary grounds rather than for improper racist comments. Since the undisputed facts, including the trial transcript, demonstrate racial prejudice blighting the prosecution of Darnai Vaile, I would also reverse the conviction on the basis of the State inserting racial stereotypes into the trial. But I would go further. I would ask the parties to submit briefing on whether the case should be dismissed for government misconduct. I would direct counsel to include, in a discussion of government misconduct, the conduct of law enforcement at the Peking Palace, the charging of Vaile with resisting arrest under the circumstances when he was not charged with any other crime such that law enforcement lacked cause to arrest, the overcharging of counts of resisting arrest, the uneven advocacy of evidentiary rules by the State, the racial innuendoes employed by the prosecutor at trial, and the cumulative effect of the numerous instances of State misconduct.

Judge Fearing’s “(concurring/dissenting in part)” opinion chronicles the inherent racism of our region, much of it so ingrained as to be barely noticeable from within. In my view, Fearing’s opinion is given rather short shrift in the local news before giving air to several breathless rebuttals. (See below for a link and a short reader’s guide to the Fearing’s opinion.)

Spokane County Prosecutor Larry Haskell and current Spokane County Sheriff John Nowels both submitted extended statements assailing Judge Fearing’s opinion. (Click on the names for the full texts.) Don’t expect contrition or self-awareness. Tellingly, both first fly to the defense of the woman who made the inciting 911 call—even as both ignore the fact that no charges ever arose from the act of “unwanted kissing” alleged in that call and the fact that the caller herself and her sister were sympathetic to the plight of the defendant in the course of the arrest and at trial. Nowels goes on to assert that the majority opinion “made it clear” that no one “was guilty of intentional racism or apathy” [italics are mine]. Well, not exactly. The majority opinion stated that this was a “racially charged” case. Judge Fearing never suggested that the racism he discerned in the conduct of jury trial was intentional, only that it was ingrained.

Nowels’ statement is especially egregious. He writes, “…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.” If Fearing’s opinion is “wokeism”, then I’m happy to be considered “woke”. (Isn’t the alternative to “woke” asleep? Asleep to the reality around us?) As for “judicial activism” I suggest that Sheriff Knowles carefully read the opinion in which Fearing explains his justification. 

I lay this entire mess at the feet of the overzealous County Prosecutor Larry Haskell. No doubt he self-justifies by imagining himself as a crusader for justice, when, in fact, there was nothing in this case that justifies the original laundry list of charges—particularly in the absence of a harmed victim. 

Keep to the high ground,

Jerry

P.S. Click here for a readable and searchable pdf of the Appeals Court decision in State v. Vaile. The majority opinion is presented first. It concluded on page number 21. Judge Fearing’s “(concurring/dissenting in part)” opinion commences on the next pdf page with a new page 1. I recommend skimming (at most) the many pages in both opinions covering the arcana of rules of evidence and hearsay. The meat of Fearing’s argument starts on his page 36 and runs to 59. Don’t miss the section starting on page 50 that opens with “When considering explicit race discrimination in America and its impacts on Darnai Vaile’s prosecution in nonexplicit, or implicit, unstated, ways, I also consider the venue for Darnai Vaile’s arrest and prosecution.” What follows is a recitation of the racially poisonous milieu in which the Spokane court system operates. It is eye-opening.

A closer examination of the Vaile case

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 caseagainst 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,
Jerry

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.

A Short History

Once again (see United States debt-ceiling crisis 2011) Republicans are holding the national and global economy hostage in an attempt to claim the mantle of fiscal conservatism. The Republicans pushing this default are extortionists, including McMorris Rodgers. Don’t negotiate with extortionists—or they will be back for more. 

The basic issue in the current debt ceiling standoff: Is the United States going to pay the debts it has already incurred or are we going to stiff our creditors and, by so doing, crash our national credit rating and credibility in the global economy? 

We should not be here. Not keeping up with payments on the public debt is constitutionally prohibited. Section 4 of the 14th Amendment to the U.S. Constitution (adopted in 1868) states, “The validity of the public debt of the United States, authorized by law…shall not be questioned.” 

As the Professor of U.S. History Heather Cox Richardson points out, the history of the adoption of Section 4 of the 14th Amendment suggests it was made to order for our current times. On the origins of Section 4 of the 14th Amendment:

Undermining the value of U.S. bonds [as was being proposed for the Union Civil War debt] was an attack not just on the value of investments, but on the nation itself. When Republican [not the Republican Party of today] lawmakers wrote the Fourteenth Amendment in 1866, they recognized that a refusal to meet the nation’s financial obligations would dismantle the government, and they defended the sanctity of the commitments the government had made. When voters ratified that amendment in 1868, they added to the Constitution, our fundamental law, the principle that the obligations of the country “shall not be questioned.”

Needing to raise the debt ceiling separate from negotiating over and passing a federal budget is usually dated to the Second Liberty Bond Act of 1917, but it’s a bit more complicated than that. Before WWI Congress typically passed specific bond issues to be offered by the U.S. Treasury in order to cover various incurred federal debts, especially war debts. Rather than discuss and vote over each bond issue, with the Second Liberty Bond Act of 1917 Congress set a ceiling for the amount of debt the Treasury could take on by selling bonds and then let the Treasury work out the details. 

The debt ceiling votes that started with the Second Liberty Bond Act of 1917 have been used in Congress at various times as a vehicle to highlight and force discussion around the national debt, but using the debt ceiling to threaten catastrophic debt default to extract political concessions is a relatively new. (The one exception was a close call in 1953 during the Eisenhower administration. If you really want to get into those weeds click here.) In 1979 a parliamentary rule proposed by Rep. Dick Gephardt, a Democrat from Missouri (imagine that!), later dubbed the “Gephardt Rule”, was adopted. It deemed the debt ceiling to have been raised when the budget was passed. That worked as intended to avoid playing chicken with a debt default—the concern that Gephardt saw and wished to avoid.

But then, under the House Speakership of Newt Gingrich in 1995 during the Clinton administration, Republican majorities in the House and Senate scrapped the Gephardt Rule. That year Speaker Gingrich threatened to refuse to raise the debt limit and thereby cause a debt crisis. Newt was riding high on his Heritage Foundation-inspired “Contract with America” to reduce the size of government, cut taxes, and engage in tort “reform” and welfare “reform”. The ensuing battle over the budget (not, strictly speaking, the debt limit) resulted in two memorable federal government shutdowns. This hostage-taking of the economy, in the end, damaged Republicans more than Democrats.

The exclusively Republican tactic of holding the national (and international) economy hostage by refusing to raise the debt ceiling next arose in 2011 after the Tea Party takeover of Congress. This Republican-manufactured crisis ultimately avoided default but came so close that it resulted in a downgrade of the U.S. credit rating and an ongoing increase in borrowing costs.

In 2013 Republicans once again held the economy hostage, threatening to send the country into debt default unless their demand to defund the Affordable Care Act was met. Once again Republican approval ratings declined.

Now in May of 2023 Republicans are at it again, but with demands in their House-passed Limit, Save, Grow Act of 2023 (with McMorris Rodgers’ Yea vote) to defund every legislative achievement of the Biden administration and impose spending caps in exchange for a short term extension. Doug Muder captures it perfectly:

The American people don’t really understand where government spending goes, so they support spending cuts in the abstract, while rejecting any specific list of significant cuts.

The two parties maneuver around that phenomenon: Republicans support vague spending “caps” that don’t specifically cut anything in particular, while Democrats try to pin them down. Do they want to cut defense? Veterans benefits? Health care? Education? No, of course not. They just want to cut “spending”.

It is time to put a stop to this irresponsible hostage taking, invoke Section 4 of the 14th Amendment, and pay the country’s bills. As Heather Cox Richardson points out, this round Republican hostage taking over the debt limit is already damaging our national security. The Republican Party is rapidly becoming an irresponsible terrorist organization. 

Keep to the high ground,

Jerry

P.S. There is one more thing that often gets left out of the discussion of this Republican-manufactured debt default crisis. Thanks to the trickle-down economics orthodoxy of the Republican Party since the Reagan administration (1980 onward), not only do Republicans refuse to consider raising taxes on the wealthy and on corporations in order to reduce the national debt, but they actively work to further lower those taxes (see Tax Cuts and Jobs Act of 2017) and swell the national debt even more. After most wars this country has fought, taxes were used to help re-balance the budget and reduce the accumulation of debt. But not under Republican orthodoxy after George W. Bush’s second Iraq War. No. Bush went ahead with additional tax cuts pushing up the debt even further.

Along those same lines, does anyone remember W’s exhortation to “go shopping!” rather than calling for sacrifice to support the economy after 9/11 and in the lead-up to the Second Iraq War? Just another manifestation of warped Republican trickle-down advocacy.