FOIA Request Reveals Clinic Failed to Address Race Concerns Before Student Outcry

Although Dean Testy and other members of UW Law’s administration currently emphasize the potential for a prosecution clinic to effectively address racial disparities in the law, emails revealed by a recent FOIA request filed with KCPAO show that issues surrounding prosecutorial discretion and racial disparities in the criminal justice system were not considerations involved in the development of the clinic.

The emails detail that the clinic was initially developed between KCPAO and Seattle University School of Law during September 2012. The proposed clinic at SU Law was to be led by a Senior Deputy Prosecuting Attorney who would develop curriculum and serve as a full-time visiting professor.

After SU decided not to proceed with the clinic in February 2013, UW Law took steps to establish a similar class. By March 22, 2013, UW Law had issued a draft Memoradum of Understanding (MOU) laying out specifics for the implementation of a prosecution clinic. While the MOU stated clear goals of providing students with opportunities to develop trial advocacy and professional skills, it did not mention racial or social justice in any section.

It wasn’t until April 3, 2013 that issues of prosecutorial discretion were brought up to KCPAO by UW Law over email.  It took UW Law until June 7, 2013 to develop a proposal of integrating racial justice into the clinic’s curriculum.

So although UW Law’s administration repeatedly told student leaders in meetings held after the clinic’s announcement on April 2, 2013 that racial justice had always been an element of the clinic’s proposed curriculum, we now know that racial justice was not a part of the formal plan for the clinic as communicated to KCPAO.

The emails also indicate that UW Law’s belated attempt to address racial justice caught KCPAO off guard. One instructor candidate from KCPAO expressed dismay at UW Law’s June 7th proposal to include racial justice issues in the clinic’s curriculum, stating that the proposed materials were “more political than clinical.” So while UW Law has told student leaders that the clinic’s instructors will have a “demonstrated commitment to addressing problems of racial disparity,” instructor candidates have expressed an aversion to materials addressing racial justice.

This unsettling revelation about development of the clinic’s goals and curriculum is just the latest example of UW Law blundering on issues of race. UW Law has struggled to teach issues of race in a classroom setting. There are no common standards or goals for addressing race in core curriculum. The sole academic class dedicated to exploring issues of race, Race and the Law, was founded solely 5 years ago and does not have consistent quality in instruction. And unlike other major programs within the University of Washington, UW Law does not have a diversity plan.

Creating a prosecution clinic that can thoughtfully address racial justice issues is a challenge for institutions with a proven commitment to those issues. For an institution that does not have a commitment to racial justice, creating such a clinic may be impossible.  UW Law has mislead student leaders by insisting that racial justice has been a major consideration from the clinic’s inception, casting doubt on UW Law’s ability to deliver an inclusive, innovative curriculum for a prosecution clinic.


This post was authored by a UW Alum who reviewed the King County Prosecutor’s Office documents we unearthed via a public disclosure request.


Prosecutor Rejects Juror Because of Race

Here are some of the highlights from the recent King County Prosecutor’s Office case where it was found that they rejected a juror based on race:

— The KCPO showed its awareness of racial disparities by asking potential jurors if they had knowledge of racial disparities and if this knowledge would make them more lenient to black defendants.  So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.  Certainly this is not what UW Law administration means by using the clinic to familiarize us students with racial disparities.

— Among its various excuses, the KCPO also said it rejected the juror because he had been on a jury previously that failed to reach a verdict.  As it turned out, that was the other potential black juror.  KCPO had confused the two black potential jurors–a fact which they admitted in their briefs and then denied in their oral argument.

— KCPO then said that they rejected the juror because he raised his hand to indicate that he did not think past conduct would have a bearing on determining guilt or innocence; however, the KCPO did not strike 15 jurors who answered the same way.

—  KCPO said that they rejected the juror because he used the term “brother;” the Division I Court of Appeals wisely held that this “explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Yet these are the people UW Law has chosen to teach us about racial disparities.

On to the full story…

Last summer, the King County Prosecutor’s Office (KCPO) was called out for rejecting jurors because they were African American.  In under 10 pages, the Division I Court of Appeals considered the excuses proffered by the KCPO and found that:

“the proffered reasons for the strike are unsupported by the record, appear ‘pretextual’ because similar jurors were not excused from sitting, or appear to be mere “proxy” reasons for racially motivated excusal.”

To put it in legal terms, the KCPO lost a Batson case.*

This decision came just two months after UW Law administration decided to host a prosecution clinic with the KCPO.  When students and community members suggested it was not a good use of resources, the administration began to describe the clinic as one that would help sensitize students to issues of racial disparities.

But according to many of us students, UW Law has not shown an interest in racial justice. In fact, students at UW Law have been asking for a Critical Race Theorist and a Diversity Plan for years; we have neither.  Then, after just two months of emails between faculty and prosecutors, we have a Prosecution Clinic claiming to be concerned with racial justice.

We already had evidence that KCPO and UW Law are hostile toward or chronically disinterested in racial justice, and this case gives us another perspective on the culture at KCPO and less directly, the culture at UW Law, as the school insists on staying the course with its hurtful plan to team-teach a prosecution clinic with KCPO.

In the decision, State of Washington v. Misty Lou Cook and Pierre Daniel Spencer-Wade, we get to see a bit more into the culture of the prosecutor’s office which is teaming up with our own UW Law.

The KCPO said that they rejected this juror (Juror No. 34) not because of race but due to a variety of reasons, including that he used the term, “brother.”  The Division I Court of Appeals wrote that the term’s “use by the State in its purported race-neutral explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Another KCPO explanation: Juror No. 34 had set on a jury that had been unable to reach a verdict.  However, the record showed that it was Juror No. 5, the only other black juror.  In “its briefing, the State conceded that the prosecutor confused Juror No 34 with the other African-American juror, No. 5, but at oral argument the State retracted this concession.”  So in brief the KCPO actually admitted that it could not discern between the two black potential jurors.  And then they unadmitted in court.  We students believe this further indicates that KCPO cannot teach UW Law students about racial disparity because they have a culture more concerned with winning than with justice.

Another reason the King County Prosecutor claimed to have stricken No. 34 was that he “missed a simple corroboration question.”  In fact 15 other potential jurors answered similarly, and 5 of them were selected for the jury.  (And what’s more is that No. 34’s reply was correct and in line with the rules of evidence.)  Citing precedent, the court quoted: “if the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination…”

Interestingly, the Court of Appeals wrote that “it was the State who first raised the issue of Spencer-Wade’s race.  The prosecutor spoke of racial inequities suffered by African-Americans and inquired into any bias the jurors might have that would make them more lenient toward [the defendant] because of his race.” So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.

So, again, please write the decision makers and let them know that this clinic is an awful idea, for many reasons, including the culture at KCPO and UW Law’s reluctance to act on diversity issues students have pushed for years. See previous blog entries for ideas on what your letter could look like.  The decision makers can be contacted at:

Dean Testy <>, Prof. Maranville <>, UW President Michael Young <>, UW Provost <>, Board of Regents <>

Please tell them why UW Law needs a Critical Race Theorist and a Diversity Plan; tell them to cancel the prosecution clinic and to commit to clinics that address unmet legal needs. And if you like, Cc us at  Please be kind and respectful; the administration has been both, and anyway, honey attracts more bees than vinegar.


*In Batson v. Kentucky, the United States Supreme Court set forth a three-part analysis to determine whether a member of the venire was peremptorily challenged pursuant to discriminatory criteria. First, a defendant must establish a prima facie case of purposeful discrimination. Second, if the defendant establishes a prima facie case, then the burden shifts to the State to articulate a race-neutral explanation for challenging the juror. Third, the trial court considers the explanation of the State and determines whether the defendant has established purposeful discrimination.

Direct Action Around the Clinic, a DP & CRT

August 30, 2013

To Whom It May Concern at SU Law and UW Law:

RE: UW Law (and now SU’s) new Prosecution Clinic

UW Law administrators and faculty have chosen to pursue a collaborative effort with the King County Prosecutor’s Office to convict people for misdemeanors in King County.  Recently we learned SU students will be able to participate also.

The administration says it is a great chance for students to develop their advocacy skills, and that they’ll be sensitized to topics of race and the law, and racial disparities in particular.

However, we know better.

We know that just two months ago the KCPO lost–on appeal–a case for rejecting jurors based on race.

We know that the year before that, a senior prosecutor–Konat–got called out by the Washington Supreme Court for telling jurors that they shouldn’t pay any mind to the black witnesses.

We know through these and other interactions that the KCPO is focused on simply fighting full force, with little to no awareness about racial justice.

UW Law doesn’ t see a problem with all this.  That’s not surprising in an institution where we have three African American faculty.  We have no diversity plan.  No critical race theorist.  And though students have been pushing for a DP and a CRT for years, we have been consistently ignored by the administration and faculty.

The time has come for us to say enough is enough.

We are organizing for a direct action against UW Law, against the Prosecution Clinic and for a Diversity Plan and a Critical Race Theorist at UW Law.  The time, date, and location are to be determined.  We know we will have music, poetry, representatives of concerned community groups…

How can we stop this Clinic?  How can we promote racial justice?  How can we convince an almost-exclusively white and privileged institution like UW Law that they shouldn’t team up with the KCPO?

When the Supreme Court came down on Konat’s case two years ago, the NAACP called for him to be fired.  Instead he was allowed to use up all his vacation time, keep making that $142K/yr and then quietly leave the office just last year.

No.  No more quiet.  No more, “we don’t have money for a diversity plan,” no more one-sided support of the prosecutor, no more intentional blindness with lips blandly referencing “The New Jim Crow” and thinly excusing their pre-determined course of action by alleging an awareness of “racial disparities.”

The time for action is now.  Please email us at to get involved.

UW Law Students

Who’s Teaching Us Racial Justice?

When students began to push back against the Prosecution Clinic, we soon realized that the administration wasn’t backing down. For years prior we had pushed for a critical race theorist and a diversity plan to address the school and profession’s deep seated race issues. While these student-proposed solutions would have had a much broader reach and a higher chance at successfully changing the climate, the administration decided to have a prosecution clinic and in two months, it was done.  In justifying the clinic, they have said it will teach students about racism in the criminal justice system.

The first email about the clinic came in February, and by April, the Prosecution Clinic was tabling at a clinic fair.  Years of student pushing led to naught, it seemed to us, and now the King County Prosecutor’s Office is going to be a part of a program that proposes to teach 8 students a year about racial disparities.

This is the same prosecutors office that in February of last year had a senior deputy prosecutor (Mr. Konat) resign after the Washington Supreme Court found he had engaged in “prosecutorial misconduct” stemming from racially charged language.

This led to Superior Court Judge Ronald Kessler to file a bar complaint, and “the Supreme Court cited Konat’s comments as grounds for the conviction to be overturned, saying they cast doubt on the credibility of the witnesses based on their race. One justice called the deputy prosecutor’s comments ‘repugnant.'”  (This from The Seattle Times.)

The racially charged language was used in 2007.  Mr. Konat was not fired.  Instead, he got called out by the Washington Supreme Court in 2011, used up all his vacation and leave, and then bowed out.  Last year.

And yet this year, the UW Law administrators expect students to learn about racial disparities amid this atmosphere, an atmosphere that may be one of silent consent to a harmful status quo.

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Relevant History: The Washington Supreme Court found that King County Prosecuting Attorney Konat used racially charged language in a 2007 trial, finding that Konat referred  to police as the “PO-leese,” the justices found and that he cast doubt on the credibility of black witnesses by saying they had a code: “the code is black folk don’t testify against black folk. You don’t snitch to the police,” according to the Supreme Court decision.

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Again, please contact Dean Testy  lawdean at and Prof. Maranville maran at telling them why UW Law needs a Critical Race Theorist and a Diversity Plan; tell them to cancel the prosecution clinic and to commit to clinics that address unmet legal needs. And if you like, Cc us at

UW Law and Diversity

Our Own Backyard

For years now, UW Law students have been pushing for a Critical Race Theorist and a Diversity Plan that would touch the whole school and equip all law students with knowledge of the weaknesses of the justice system and our own school.  UW Law’s administration’s proposed Prosecution Clinic would touch only 8 students per year.

Prosecution Clinic

UW Law administrators have arranged a Prosecution Clinic with a touted goal of preparing future prosecutors to lessen the unjust proportion of black and brown people hurt by the criminal justice system.


There is no defense component to this Clinic.  Rather than a prosecution-defense Criminal Justice Clinic, like unto that at Chicago, we are providing only one side of the fight–the prosecutor’s office–with free labor in the form of 8 UW Law students.

Prosecutors generally have more financial resources already, and so the balances are tipped even more in their favor.

Racial Bias in Seattle

The Seattle Police Department has a reputation for racial profiling, and UW Law may be prosecuting the most vulnerable members of our community.

Historical Role of Clinics

Clinics have generally provided services for those with none.  The Children’s Advocacy Clinic, for example, or the Immigration Law Clinic, have provided services for people with nowhere else to turn.

Existing Clinics Already Underfunded

While other clinics struggle to get off the ground or exist, the administration makes up its mind to have a prosecution clinic and it seemed to us as though money suddenly appeared.

What else?

Students have asked for other clinics including a dependency clinic, and they have signaled the lack of consumer law and civil trial advocacy opportunities at the school.  We have said that the school is inefficiently allocating funds, and that we don’t think the state should be a client.  We have said that there is already an entity fulfilling the role of prosecutor, whereas other clinics provide services unmet by our community.

The prosecution clinic serves only a handful of students, allowing them to practice their trial advocacy skills in a forum that is not currently under-resourced, and is often hostile to communities already underrepresented at UW Law.

A pair of UW professors wrote about how the lack of input hurt our sense of community and faith in curriculum decision-making.  And on the wider issues, how  they didn’t believe UW clinics should play a role in the present criminal system because of racial disproportionality, mass incarceration, the role of criminalization/incarceration in the maintenance of poverty, and because they believe clinical education should not just educate law students, but should meet unmet legal needs of underserved people.

For more thoughts on why the prosecution clinic at UW has to stop, read the letters section.  Then contact Dean Testy  lawdean at and Prof. Maranville maran at telling them why UW Law needs a Critical Race Theorist and a Diversity Plan; tell them to cancel the prosecution clinic and to commit to clinics that address unmet legal needs. And if you like, Cc us at  Please be kind and respectful; the administration has been both, and anyway, honey attracts more bees than vinegar.