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### IN THE SUPREME COURT OF THE STATE OFWASHINGTON

In the Matter ofthe Personal Restraint of JONATHAN LEE GENTRY, Petitioner. NO. 86585-0 ENBANC Filed 

### JAN 2 3 2014
STEPHENS, J.-Jonathan Lee Gentry was convicted in 1991 of the aggravated first degree murder of 12-year-old Cassie Holden and sentenced to death by ajury. Gentry is African American and Holden was white. Gentry's direct appeal before this court was unsuccessful. 

### State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995). One of the issues he raised there was a claim that the decisionto pursue a capital case againsthim, and the trial that ensued, was unfairly tainted bythe specter ofracial bias on the part ofthe prosecution. 

### !d. at 609. We rejected that contention, concluding in part that Gentry had not shown prejudice resulting from any misconduct. Our recent decision in 

### State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), makes it clear, however, that when aparty shows prosecutorial misconduct based on racial bias, it is the State's burden to showIn re Pers. Restraintof Jonathan L. Gentry, 86585-0



### harmlessness beyond a reasonable doubt. Gentry brings this personal restraint petitioninlight ofMonday. 

### While we believe the rule in Monday 

### is critically important to ourjustice system, we conclude it does not qualify as a "watershed" rule that can be applied retroactively under Teague v. Lane, 

### 489 U.S. 288, 109 S. Ct. 1060, 103 L. 

### Ed. 2d 334 (1989). Nevertheless, because ofthe gravity ofthe punishment and the claims here, we wish to stress that even ifGentry's claims were not procedurally barred, theywould still fail underthe standardimposedbyMonday

### because Gentry cannot demonstrate prejudice to merit relief on collateral review. We therefore dismiss hispersonalrestraintpetition. 1 FACTS 

### The facts ofthis case are well known and were summarized in this court's decision on Gentry's direct appeal. In early June 1988, the 12-year-old victim lived with her father and stepmother in Pocatello, Idaho. On June 11, 1988, she traveled to Kitsap County, Washington, to spend the summer with her mother at her mother's home near Bremerton. On June 13, 1988, at approximately 4:30 p.m., the young victim went for a walk. She was expectedhome at 6p.m. for dinner, butneverreturned. Her body was found early June 15, 1988, behind a large log at the bottom of a path running from a trail through a wooded area adjacent to Rolling Hills Golf Course, near Bremerton, Washington. The victim's eyeglasses, earring and abouquet offlowers were found approximately 148 feetup the footpath on andnearthe maintrail. The victim appeared to have been sexually assaulted, as herjeans and underpants were pulled down and her T-shirt and bra pulled up. Her blue sweatshirt had been removed from one arm and pulled up, partially

1 In addition to his personal restraint petition, Gentry filed a motion to reconsider pursuant to RAP 2.5(c )(2). The motion is more aptly described as a motion to recall the mandate and is based onthe same grounds as Gentry'spetition.
-2-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

covering her face. She had been struck in the head approximately 8 to 15 times, suffering 10 "significant" injuries. Kitsap County sheriff deputies investigated the murder scene and determinedthat a trail ofbloodwas splattered from the maintrail, downthe footpath about 148 feet to where the body was found. They found a 2.2- pound rock that had blue fibers crushed into it. The fibers matched the fibers in the victim's sweatshirt. The rock also had red spots on it that appearedto beblood. Therockwas believedto bethe murderweapon. The autopsy showed that the victim had been killed by one ofthe blows to her head. The results ofthe autopsy could not show the order in which the blows were received or which blow actually killed the victim. The autopsy did not conclusively show that the young victim had been raped. During the autopsy several loose hairs were removed from the victim's body. An examination ofthe hairs showedthat most ofthem were consistent with the victim's own hairs. Two of the hair fragments were recovered from her T-shirt and were Negroid hairs. A coarse brown hair, believedto be apubic hairfrom a Caucasian, was found onthe victim's left thigh and aredpigmentedhairwas found onone ofher shoes. TheNegroid hair was later determined to be genetically consistent with the Defendant's brother's arm hair. Defendant's brother was not in Kitsap County at the time ofthe murder. Evidence was produced to show that the Defendant, who livedwithhis brother's family, wore his brother's clothes on occasion. Therewas no identification connectedwiththe Caucasianhair. The investigation eventually focused on the Defendant. A search of his residence was conducted and clothing samples, including a pair of shoes, were seized. Examination ofthe shoes indicatedthatbloodhadbeen wiped from the shoes. Spots of blood were found on the shoelaces and those bloodstains were the subject of a number of scientific tests. These [tests matchedthe bloodto Holden's type; 0.18% percent ofthe population wouldhave this type
....] [T]esting was also conducted on a hair found in the victim's T-shirt which yielded a PCR [(polymerase chain reaction)] type of 1.2, 1.2, which is not the same as the Defendant's type, but does matchhis brother's type. A [State v.] Frye[, 54 App. D.C. 46, 293 F. 1013 (1923)] hearing was conducted over the course of 6 weeks. The trial court concluded that the scientific evidence was reliable and shouldbeadmitted. Other evidence linking Defendant to the murder included the testimony of three persons who reported seeing a man matching Defendant's descriptionnearthe place ofthemurder and aroundthe time of the murder, and three formerjailmates ofthe Defendant who testified that the Defendant admitted to them he had killed someone. The testimony of thesewitnesses was essentiallyas follows. Witness E.S. and her daughter, K.T. testified that they had seen an AfricanAmericanmanwalkingpast B.S.'s home toward Rolling Hills Golf Course between4 p.m. and 7 p.m. onJune 13, 1988. The manwas wearing a cap, a sportsjacket and slacks. His clothing was described as scruffy and of a light color. E.S. later identified the individual as the Defendant,
-3-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

Jonathan Gentry. At the time ofthe murder, the Defendant was residing in the home ofhis brother and sister-in-law a short distance from B.S.'s home andthe Rolling Hills GolfCourse. Witness F.B. was abicyclistwho hadriddenthe trails inthe wooded area near Rolling Hills GolfCourse a number oftimes. On June 13, 1988, the day ofthe homicide, he and a friend went to the area after work and rode the main trail from Riddell Road, south ofthe golfcourse, to the golf course and back. F.B. thentraveled from Riddell Road, along the main trail to MeWilliams Road. During this last time across the path, at approximately 5:30 p.m., he saw an African American man standing just offthe main trail. F.B.'s description ofthe man was consistent with that givenbyE.S. Witness B.D. had been incarcerated in the Kitsap County Jail with the Defendant in the summer of 1988. He testified that he and the Defendant were playing cards when detectives arrived to take samples of Defendant's hair in connection with the investigation of the victim's murder. B.D. testified that when the Defendant returned to the card game, Defendant said, "They found my hair on the bitch." When B.D. asked the Defendant whetherhe hadkilled the young girl, he said thathe hadbutthat they couldnotproveit. Witness T.H. had been incarcerated with the Defendant at the Washington State Correctional Center at Shelton in December 1989 and January 1990. He testified that the Defendant told him that he had killed a 10-year-old girl who lived across the street from his brother's house because he thought she was leading him on. This statement was made, according to T.H., during a card game and others, including inmate L.S., werepresent. L.S. testified that the Defendant told him that he had killed his girlfriend and disposed ofherbody. The jury found the Defendant guilty of premeditated first degree murder and offelony murder. Thejury additionally found that the murder was committedto conceal the identity ofaperson committing a crime, thus finding an aggravating circumstance which subjected Defendant to the possibility ofadeath sentence. Gentry, 125 Wn.2d at 579-82. This court affirmed Gentry's conviction and remanded for issuance ofa death warrant. 

### !d. at 658. The court also rejected a subsequent personal restraint petition. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 972P.2d 1250 (1999). Gentry filed this personalrestraintpetitionin October 2011. On October 10, 2012, Gentry filed a motion to ask that this court set oral argument or alternatively

-4-In rePers. Restraintof Jonathan L. Gentry, 86585-0

remand for supplementation ofthe record or reference hearing in light ofState v. Davis, 175 Wn.2d 287, 362-73, 290 P.3d 43 (2012). We denied Gentry's motion to supplement or remand in light ofDavis and struck the portions ofhis briefing dealing with Davis. 2 We granted his request for oral argument. Amici curiae American Civil Liberties Union, American Civil Liberties Union ofWashington (hereinafter ACLU), and NAACP Legal Defense and Educational Fund Inc. filed briefs in support ofGentry.3 ANALYSIS Gentryclaims the prosecution engaged inrace-based misconduct tainting his conviction in the following ways: (1) by making an out-of-court racially offensive

2 The dissent is concerned that our decision to deny Gentry a remand for a reference hearing in light of Davis means we have sidesteped our duty under RCW 10.95.130(2)(b) to conduct a proportionality review in every capital case. Dissent at 1. But Gentry received his proportionality review on his direct appeal. Gentry, 125 Wn.2d at 654-58. Nothing in RCW 10.95.130(2)(b) requires this court to consider proportionality anew each time an inmate on death row files apersonal restraint petition. It certainly does not allow us to circumvent the one year time bar on personal restraint petitions and engage in a proportionality review premised on an otherwise untimely petition. 3 In his response to the briefs of amici, Gentry appended a letter from the Department ofJustice that was sent to a district attorney's office in Mississippi. The letter included assertions about the scientific validity of microscopic hair comparison analysis. The State moved to strike the appendix, arguing that the letter falls outside the scope ofthe record andhas little relevance. We passedthe motionto strike to the merits, and grant it now. The State is correct that the appendix is an improper addition to the record on review. Having granted the State's motion, we need not consider a later motion filed by the State seeking to supplement the record with postconviction DNA (deoxyribonucleic acid) evidence, whichit claims rebuts the letter. Likewise, in the course of rendering this opinion, we also do not consider any statistical-based claims made by the parties or amici about the efficacy of the death penalty. Those claims fall outside the scope ofthe only claimthat can overcome the oneyear time bar on collateral attack, namely Gentry's claim of race-based prosecutorial conductpremised on ourMonday decision. See infra 28-29.
-5-In rePers. Restraintof Jonathan L. Gentry, 

### 86585-0

commentto Gentry's AfricanAmerican counsel; (2) byoffering the testimony of a white witness who used the word "nigger" several times and made other racially inflammatoryremarks; (3) by offering the testimony ofwhite witnesses who stated that Gentry had referred to the victim as a "bitch," a word that was then repeated several times bytheprosecutorin closing; ( 4) bymaking numerous statements that focused on physical evidence described as having "Negroid characteristics;" and (5) by suggesting, through argument and the presentation of evidence, that the killer was black and that Gentry was therefore the killer because he is black. Gentry emphasizes that these instances ofmisconduct must be considered against the backdrop ofthe crime at issue-a racially inflammatory scenario in which an African American man is accused ofmurdering a white girl. He also argues that these instances must be viewed in light ofthe circumstances under which Gentry
was charged and tried: Gentry was sentenced by an all-whitejury in a courtroom presided over by a white judge; as an African American, Gentry is the only defendant from Kitsap County who is on death row for aggravated murder; and African Americans constitute a disproportionate number of inmates on Washington's deathrow. Gentry's arguments implicate ourholding inMonday. 

### There, theprosecutor made a number of racially charged remarks throughout the trial of Kevin L. Monday on charges offirst degree murder and assault. Monday and most ofthe lay witnesses called were African American. Among other things, the prosecutor suggested that the African American witnesses could not be believed because ofa

-6-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### '"code"' on the street that "'blackfolk don't testify against black folk."' Monday, 

### 171 Wn.2d at 674 (quoting Verbatim Report ofProceedings (VRP) at 29-30). He also mimicked African American witnesses, saying "'po-leese"' during questioning and audibly expressing his disbeliefat a witness's answer. Id. 

### at 671- 72. We held that the defendant met his burden ofproving the prosecutor's actions
were improper. Id. 

### at 678. But we departed at that point from our previous requirement that the defendant also show prejudice stemming from the prosecutorial misconduct. Once the showing ofmisconduct is made, we held in Monday, 

### the burden shifted to the State to show the race-based misconduct was harmless beyond a reasonable doubt, i.e., that it is beyond a reasonable doubt that the conduct did not affect thejury's verdict. Id. 

### at 680. InMonday, 

### the evidence that the defendant had committed the crime at issue was quite strong.4 

### But, the prosecutor's misconduct was so pervasive that nearly every witness's testimony
was tainted by it. Under those circumstances, we held that the State could not make the harmlessness showing. Id. 

### at 681. Despite the strong evidence of Monday's guilt, the taint ofthe improper conduct pervaded the trial, making it impossible to saywhetherthejurycouldhave come to a conclusion not influenced byracialbias. In light of Monday, 

### Gentry maintains that his allegations of racial bias should be reviewed anew. We must therefore first address whether Gentry can

4 The defendant told police during questioning that he had not meant to kill the victim, and there was a videotape ofthe event showing the defendant to be the shooter. Monday, 171 Wn.2d at 670, 680 n.4.
-7-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### benefit from the rule in Monday. 

### This requires consideration ofwhetherMonday 

### qualifies as a change in the law that justifies Gentry's late-filed petition and whethertherule ofMonday 

### maybe appliedretroactively. 1. Is Gentry'spersonal restraintpetitionprocedurallybarred? Because Gentry'sjudgment and sentence became final several years ago, he is outside the one-year period for collaterally attacking a conviction. This court mayreview an untimely filed petition only ifone ofthe exceptions to the time bar set forth in RCW 10.73.100 is present. Here, Gentry argues that his petition falls underRCW 10.73.100(6), which excuses late filings where [(1)] [t]herehas beena significantchangeinthelaw, whether substantive or procedural, which is [(2)] material to the conviction, sentence, or other orderenteredin a criminal orcivil proceeding institutedbythe state orlocal government, and [(3)] either the legislature has expressly provided that the change inthe law is to be appliedretroactively, or a court, ininterpreting a change inthe law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive applicationofthe changedlegal standard. 

### RCW 10.73.100(6); Pers. Restraint Pet. at 18-20.
a. Does the rule inMonday

### present a significant, material change inthe law satisfying RCW 10.73.090? The State argues thatMonday 

### cannotbe applied retroactively, relying on the retroactivity analysis set forth in Teague, 

### 489 U.S. 288. Resp. to Pers. Restraint Pet. and Mot. to ReconsiderAppeal (Response) at 46. Gentry asserts that Teague's 

### retroactivity analysis need not dictate how RCW 10.73.100 is interpreted and applied. Gentry claims that "post conviction review may be available under state

-8-In rePers. Restraintof Jonathan L. Gentry, 86585-0

law where it would not beunderfederal law." Pet'r/Appellant's ReplyBr. (Reply) at 2. The State and Gentry at times conflate the two-fold nature ofthis question. RCW 10.73.100(6) sets forth three conditions that must be met before a petitioner
can overcome the one-yeartime bar: (1) a substantial change in the law (2) that is material and (3) that applies retroactively. Gentry is likely correct that 

### Monday constitutes a significant changeinthe law, material to his conviction, thus excusing the late-filed petition under RCW 10.73.100(6). The State does not seriously debate that point. 

### See Response at 4 7 (conceding that 

### Monday announces a new rule); 

### see also Monday, 171 Wn.2d at 680 (explaining that the decision was charting a new course inthe endeavorto preventprosecutorial misconductbecause "past efforts to address prosecutorial misconduct have proved insufficient to deter such conduct").5 Butretroactivity is a distinct question. 

### SeeIn re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 435-36, 842 P.2d 950 (1992) (recognizing separate inquiries as to whether a rule is a changeinthe law and whetherit maybe applied retroactively); 

### In re Pers. Restraint ofTaylor, 105 Wn.2d 683, 689, 717 P.2d 755 (1986) (noting that a recent case constituted a change in the law, leaving theremaining issue as to whetherthe case couldbe appliedretroactively). Because Gentry's petition, insofar as the State responds to it, thus far satisfies RCW 10.73.100(6), weproceedto the retroactivityinquiry.

5 In the absence ofany debate from the parties on this point, we save for another day the question ofwhat constitutes a "material" change in the law for purposes ofthe statute.
-9-In rePers. Restraintof Jonathan L. Gentry, 86585-0

b. Maythis court applytherule inMonday retroactivelyto Gentry's case? A material change in the law does not necessarily mean a defendant whose judgment was final at the time the change was announced gets the benefit ofthat change. That is what a retroactivity analysis seeks to address. We have generally adhered to the test announced in Teague to determine questions ofretroactivity. As we explainbelow, therule inMonday does notmeetthe Teague test. Butgiven the grave nature ofthe punishment at stake here, Gentry's claim that this court need not be bound by Teague deserves careful consideration, and we begin with that discussion. (1) Is the courtboundbythe Teague analysis? There is some support for Gentry's assertion that this court need not be bound by Teague. The United States Supreme Court has suggested as much. In Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008), thecourt explained: It is thus abundantly clear that the Teague rule ofnonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. Itwas intendedto limitthe authority offederal courts to overturn state convictions-notto limit a state court's authority to grant relieffor violations ofnew rules ofconstitutional law whenreviewing its own State's convictions. Id. at280-81; seeReplyat 6 (citingDanforth). Gentry appears to advocate for an analysisthatlooks to whetherthe "ends of justice" are servedbyallowing retroactive application ofa newrule. See Reply at 2 (citing Vandervlugt, 120 Wn.2d427). However, Vandervlugt does not set forth a

-10-In re Pers. Restraintof Jonathan L. Gentry, 86585-0



### clear alternative to Teague. 

### There, this court considered whether an intervening change in the law qualified as a material change. Deciding that it was material, and therefore overcame one of the hurdles in RCW 10.73.100, the court then considered whetherthe newrule hadretroactive effect. At that point, however, the court determined the rule in question was not "new" because it flowed from a decision interpreting the meaning of a statute, which is '"what the statute has meant since its enactment."' Vandervlugt, 

### 120 Wn.2d at 436 (emphasis omitted) (quotingIn re Pers. Restraint of Moore, 

### 116 Wn.2d 30, 37, 803 P.2d 300 (1991)). In other words, arule maybe amaterial change inthe law, but still not be a "new" rule for the purposes of Teague. Vandervlugt 

### thus declined to apply any retroactivitytest, Teague 

### orotherwise. Gentry also relies on Taylor, 

### 105 Wn.2d 683, which Vandervlugt 

### cites. Taylor 

### does use a different test than the one advanced in Teague. Taylor, 

### 105 Wn.2d. at 690-92. Butit also predates Teague 

### byseveral years, so it cannot, alone, be viewed as providing an alternative to Teague. 

### There is still no published Washington case that departs from Teague 

### in light of Danforth, 

### and Gentry's briefing does not provide such an analysis. We therefore analyze the retroactivity questionpresentedinthis caseunderthe Teague 

### analysis we haverelied onto date. (2) Under Teague, 

### is therule inMonday 

### retroactive? We first adopted the Teague 

### test in In re Personal Restraint of St. Pierre, 

### 118 Wn.2d 321, 327, 823 P.2d492 (1992). Since St. Pierre, 

### we have often looked to Teague 

### to guide us in determining whether a new rule may be applied

-11-In re Pers. Restraintof Jonathan L. Gentry, 86585-0



### retroactively. SeeIn re Pers. Restraintof Jackson, 

### 175 Wn.2d 155, 283 P.3d 1089 (2012); In re Pers. Restraint of Scott, 

### 173 Wn.2d 911, 271 P.3d 218 (2012); State
v. Kilgore, 

### 167 Wn.2d 28, 216 P.3d 393 (2009); In re Pers. Restraint of Hinton, 

### 152 Wn.2d 853, 100 P.3d 801 (2004). Under Teague, 

### ifa rule is new, as 

### it is agreed that the rule from Monday 

### is, then it will have retroactive application in one oftwo instances. It

### must eitherbe a substantive rule that places certain behavior "'beyond the power ofthe criminal law-making authority to proscribe'" or a watershed rule of criminal procedure '"implicit in the concept ofordered liberty.'" Teague, 

### 489 U.S. at 311 (internal quotation marks omitted) (quotingMackey v. UnitedStates, 

### 401 U.S. 667, 692-93, 91 S. Ct. 1160, 28 L. 

### Ed. 2d 404 (1971)). Recognition ofsuchprocedural rules is limited to "those new procedures without which the likelihood of an accurate convictionis seriously diminished." 

### I d. at 313. Teague 

### presents a very high hurdle to overcome. In announcing watershed rules, courts have been sparing to the point of unwillingness. See In re Pers. Restraint of Markel, 

### 154 Wn.2d 262, 269 n.2, 111 P.3d 249 (2005) (noting that in review of 11 claimed watershed rules, the United States Supreme Court had yet to declare any a watershed rule triggering retroactivity). The United States Supreme Court has cited the rule announced in Gideon v. Wainwright, 6 

### guaranteeing the right to counsel for criminal defendants, as an example of a watershed rule of criminal procedure, though the decision in Gideon 

### predated Teague 

### by several

6 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d799 (1963).
-12-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

years. Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). Butthe United States Supreme Courthas stopped short ofrecognizing any other instance ofthe type ofrule it discussed in Teague. Likewise, we have yet to
announce such arule, though we have several times concluded arule does notmeet the Teague requirements. See Markel, 154 Wn.2d at 273 (holding the rule announced in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), is not a watershed rule ofcriminal procedure); State v. Evans, 154 Wn.2d 438, 447-48, 114 P.3d 627 (2005) (same with regard to Apprendf and Blakely8rules). On the other hand, federal lower courts have found some rules to apply retroactively

.. Notably, inHall v. J(elso, 892 F.2d 1541, 1543 n.l (11th Cir. 1990), theEleventh Circuit explainedthat

aburden-shifting error wouldbe subjectto retroactive correction on habeas review because not only is it a "bedrock, 'axiomatic and elementary' [constitutional] principle," Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534, 536, 98 L. Ed. 2d 546 (1988) (quoting Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985) (quotingIn re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970))), but it is also an error that diminishes the "likelihoodofan accurate conviction." Teague, [ 489] U.S. at [290], 109 S. Ct. at 1077 (plurality). Monday does announce a new burden-shifting rule, though this rule speaks to the harmless error analysis and does not involve aburdengoing to an element of
a crime, as Hall considered. SeeHall, 892 F.2d at 1542. Butthere is no doubtthat

7 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 8Blakelyv. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d403 (2004).
-13-In rePers. Restraintof Jonathan L. Gentry, 86585-0

theMonday court considered the possible taint ofracial bias in a criminal trial to be ofextremely grave concern affecting the legitimacy ofthejury'sverdict. The notion that the State's representative in a criminal trial, the prosecutor, should seek to achieve a conviction by resorting to racist arguments is so fundamentally opposed to our founding principles, values, and fabric of ourjustice system that it should not need to be explained. [Intentional appeals to racial bias by the prosecution are] so repugnant to the concept of an impartial trial that its very existence demands that appellate courts set appropriate standards to deter such conduct. Monday, 171 Wn.2d at 680. Such languageunderscores the importance ofthe rule announced in Monday to our criminaljustice system. Other states have similarly indicated that the specter ofrace-based prosecutorial misconduct shakes the very foundation ofa fair system ofjustice, suggesting that a rule such as we announced in Monday may qualify as a watershed rule. See, e.g., Samaniego v. State, 679 N.E.2d 944, 949-50 (Ind. Ct. App. 1997) (explaining that race-basedprosecutorial misconduct may amount to a fundamental error depriving the defendant ofa fair trial); Commonwealth v. Tirado, 473 Pa. 468, 473, 375 A.2d 336, (1977) (noting that "[a ]ppeals to racial orreligious prejudice are especiallyincompatible with the concept ofa fair trial because ofthe likelihood that reason will be dethroned and that bias and emotion will reign"); State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005) (observing thatprosecutor'srace-basedmisconductunderminedprosecutor's obligationto ensurethatthe defendantreceived a fairtrial). Nonetheless, we cannot avoid the fact that the Teague analysis almost never results in retroactive application of a rule of criminal procedure. We have not found, nor has Gentrypresented, any case that retroactively applies a close enough

-14-In rePers. Restraintof Jonathan L. Gentry, 86585-0

analog to the rule in Monday. Teague itselfinvolved claims ofracial bias under Batson v. J(entucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and the court recognized the Batson rule did not apply retroactively. Teague, 489 U.S. at 295-96 (citing Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) and Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965)). Following Teague, we cannot conclude that the rule announced in Monday applies retroactively. While this conclusion answers the central question in this case, it is important to recognize that Gentry's claim arises on collateral review. We are mindful that a retroactive application of the Monday rule in the context of a personal restraint petition would still require the petitioner to demonstrate actual and substantial prejudice arising from race-based misconduct at trial. In re Pers. Restraint ofHagler, 97 Wn.2d 818, 825-27, 650 P.2d 1103 (1982). As an institution firmly committed tojustice in substance, not merely name, we feel it is important to further consider whether the misconduct at Gentry's trial resulted in actual and substantial prejudice. Such an inquiry fulfills our constitutional duty to
ensurethat a sentence ofdeathis nottheresult ofimproperracial prejudice. 2. Has Gentry shown actual and substantial prejudice entitling him to relief onthispersonalrestraintpetition? As noted, proof ofreversible error under this court's decision in Monday requires a finding ofrace-based misconduct and a finding that such misconduct
was notharmlessbeyondareasonable doubt. 171 Wn.2d at 680. We first consider

-15-In rePers. Restraintof Jonathan L. Gentry, 86585-0

whether Gentry has established race-based misconduct and then consider whether he has shownprejudice, viz., the absence ofharmless error.
a. Has Gentry shown improper race-based conduct on the part of the prosecutor? · Misconduct occurs when the State's action is both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009); State v. McKenzie, 157 Wn.2d 44, 52, 57, 134 P.3d 221 (2006). We do not review allegations of misconduct in isolation, but in the context ofthe trial as a whole. McKenzie, 157 Wn.2d at 52. Gentry alleges several specific instances of misconduct, most of which were considered by the court in Gentry's direct appeal. We now examine the conduct throughthe lens ofMonday. (1) Out-of-court commentbyprosecutorto Gentry's counsel The events surrounding this alleged instance ofprosecutorial misconduct are detailed in an oral ruling from Judge Karen Strombom, who was appointed to decide a motion Gentry brought to disqualify the Kitsap County Prosecuting Attorney's Office in the wake ofthe comment. Judge Strombom first noted that "[b]y the end ofFebruary 27th, 1991, there was an extremely tense atmosphere in the courtroom, particularly between the attorneys." Suppl. VRP at 424-25 (Decl. ofTimothy K. Ford, Ex. 16). The lead attorneys involved were Gentry's counsel, Jeffrey Robinson, and Kitsap County Prosecutor C. Danny Clem. Prior to February 27, allegations ofunethical behaviorhadbeenmade against the State. Id. at 425. As Judge Strombom explained, on February 27, 1991, the third day ofa

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### contentious Frye9 

### hearing was winding down. After proceedings ended for the day, Robinson approached Clem to inquire about the witness list for the next day. Id. Clem refused to disclose the witnesses and a verbal altercation ensued, though the exact language ofthe argument was disputed. It

### is undisputed, however, that as Robinson walked away from Clem, Clem called after Robinson, "Where did you learnyourethics? InHarlem?" 

### !d. at 425-26. The "Harlem comment" forms the basis ofone ofGentry's claims ofracebased prosecutorial misconduct. This court has already concluded that the comment was "racially offensive" and "totallyinappropriate." Gentry, 

### 125 Wn.2d at 610. (2) Use ofrace-basedlanguage Gentry claims the capital proceeding against him was "steeped in race." Pers. Restraint Pet. at 12. He argues that racially charged language was used in an attempt to evoke race-basedprejudices on the part ofthejury. He takes issue with the use ofthe word "nigger" by a witness and the use ofthe word "Negroid" by prosecutors. (a) Use oftheword "nigger" One ofthe witnesses who testified against Gentry was jailhouse informant Brian Dyste. As he does now, Gentry took issue with Dyste's testimony on direct appeal beforethis court.

9Frye v. UnitedStates, 54App. D.C. 46, 293 F. 1013 (1923). -17-In rePers. Restraintof Jonathan L. Gentry, 86585-0

Thejailhouse informant in question had told police that he and the Defendant were incarcerated at the Kitsap County Jail and were playing a "nigger" card game when the Defendant left the room to provide hair samples to police investigators. When he returned to the card game, the Defendant allegedly said, "They found my hairs on the bitch". During direct examination, the prosecuting attorney questionedthe informant about his use of the word "nigger" and about his attitude toward African Americans. Gentry, 125 Wn.2d at 611. Gentry points to this testimony, and the prosecutor's handling ofit, to support his assertion that the prosecution's case was "steeped in race," to his detriment. Pers. Restraint Pet. at 12. Butwehave already concluded thatinthis instance, theprosecutor's conductwas notimproper. The State's questioning ofthe informant appears to have been a strategic attempt to soften the impact ofapparent racist attitudes by bringing them out on direct examination, ratherthan waiting for defense counselto expose them on cross examination. That is an accepted trial tactic. The questions do not appear to have been asked in order to evoke racial prejudices in the jury

....Ifanything, the State's examination ofthis witness appears to have made him aless credible witness. Gentry, 125 Wn.2d at 611. Nothing in Monday compels us to retreat from this conclusion, and Gentry offers no additional evidence that alters it. As we concluded in 1995, while anyone's use ofthe word "nigger" is repugnant, there
was nothing improper aboutthe State'spresentationofDyste'stestimony. (b) Use oftheword "Negroid" At certainplaces inhis briefing, Gentry also appears to bolsterhis assertions ofraciallybasedprosecutorial misconductbyciting to theprosecution's use ofthe word "Negroid." See Pers. Restraint Pet. at 12 (noting 254 explicit references to
race in the trial transcript with use ofthe words "black," "nigger," or "Negroid"). At trial, the State frequently referred to some forensic evidence as having

-18-In rePers. Restraintof Jonathan L. Gentry, 86585-0

"Negroid" characteristics, such as hair samples. The State points out that '"Negroid"' is not a racist termbut a term ofart used in the forensic hair analysis community." Response at 64. The prosecution's use ofthe word does not in any wayappearto bean appeal to race-basedprejudices, and wereject the claimthat 

### it

was improper. 10 Gentryhas not shown an improperuse ofrace-based orpejorative language attrialbythe State. (3) Prosecutor's closing argument Aside from Dyste, another jailhouse informant testified that Gentry had referred to the victim as "a bitch." Response at 34. The prosecutor repeated this phrasing several times in closing during the penaltyphase, attributing itto Gentry. Gentry argues that "[i]In the late 1980s, the word 'bitch' was strongly associated with negative stereotypes of African American men and 'gangsta rap."' Pers. Restraint Pet. at 14-15. Thus, he argues, the prosecution's repeated use of the word "bitch" in closing is the type of '"careful word[] here and there [that] can triggerracial bias"' we found so repugnant in

### Monday. Id. at 24 (quoting

### Monday, 171 Wn.2d at 678).

10 The brief of amicus curiae NAACP Legal Defense and Education Fund Inc. (NAACP) (Br. ofNAACP) argues that the scientific evidence suggesting hair can come from a particular racial group has been debunked. Br. ofNAACP at 16 n.22. Gentry adopts this argument. Pet'r's Resp. to Amicus Curiae Brs. ofNAACP andACLU (Resp. to Amici) at 1-2. IfGentry's conviction was based on faulty science, this is ofcourse troubling. But Gentry's argument in this petition concerns race-based prosecutorial misconduct, not new or insufficient evidence. At the time of the trial, there was no challenge to the science describing the hair as "Negroid," and thus it is difficult to see how itwas improper, let alone indicative ofracial bias, for the prosecution to rely on it. See Gentry, 125 Wn.2d at 581 (explaining that the trial court found, following a Frye hearing, thatthe science was reliable). -19-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### The State responds that there is nothing in the prosecutor's use ofthe word "bitch" that is meant to evoke race-based prejudices. Instead it was used to "highlight Gentry's callousness and misogyny." Response at 69. We cannot conclude that the prosecutor's use ofthe word "bitch" on several occasions was used for the purpose oftriggering race-based bias. In Monday, 

### we found improper conduct when a white prosecutor repeatedly pronounced "police"
as "po-leese" while questioning African American witnesses, employed an incredulous tone during questioning, and suggested in his closing argument that African Americanpeople are liars. 171 Wn.2d at 679. It

### was clearfrom the record there that the prosecution's strategyrested, inpart, on discrediting black witnesses
on the basis oftheir race. Here, the evidence suggested Gentry had referred to Holden as abitch. Acknowledging that term's association with African American urban culture in the late 1980s, it was not improper for the prosecutorto highlight the defendant's use of a derogatory term about his victim, regardless of their respective races. The record does not suggest that the prosecutor's decision to bring that point to thejury's attention on repeated occasions reflected racial bias. We need not consider whether such behavior amounted to prosecutorial misconductunderMonday

### becauseitwas notimproper. In closing on the penalty phase, the prosecutor also made reference to the Biblical story ofDavid and Goliath. As he did on directreview, Gentry argues that this was improper race-based argument. He renews his argument on the ground that under direct review, this court rejected his claim after erroneously imposing

-20-In rePers. Restraintof Jonathan L. Gentry, 86585-0

theburden ofprejudice onhim. But on direct review, this court concludedthatthe prosecutor's remarks about David and Goliath were neither improper nor prejudicial. The Defendant argues that the State's reference to the Biblical story ofDavid and Goliath was intended to evoke racist feelings. The Defendant claims that the use ofthe David and Goliath analogy evokes an image of the outsider from another tribe killing a member ofthe "children ofIsrael". In ourview, this is a tortured interpretation of the use of thisBiblicalstory. Instead, the rebuttal here was invited or provoked by defense counsel's extensive use of Biblicalstories during his own closingargument. In any event, ifthe remark was prejudicial at all, it was not so prejudicial that it could nothave been curedwith a cautionary explanation to thejury, hadonebeenrequested. Gentry, 125 Wn.2d at 644 (emphasis added). As noted, Monday does not disturb
our conclusion regarding the propriety ofthe conduct. As we did in 1995, we conclude that there was nothing improper in the prosecution's reference to the David and Goliath story. ( 4) Presentation ofevidence and focus on Gentry as thekiller Gentry also argues that the prosecution's presentation of the evidence showed an improperfocus onrace. Pers. RestraintPet. at 22-24. This argument is closely related to Gentry's contention that race drove law enforcement's suspicion ofGentry, i.e., that the evidence did not point to Gentry so much as to an African American man. As in Monday, claims Gentry, the prosecution "resorted to 'generalizations about racial

... groups in orderto obtain [a] conviction[]."' Pers. Restraint Pet. at 23 (citingMonday, 171 Wn.2d at 683 (Madsen, C.J., concurring)). These two arguments require consideration ofthe evidence against Gentry, most of whichwas discussedin Gentry's direct appeal.
-21-In re Pers. Restraintof Jonathan L. Gentry, 86585-0



### First, three witnesses placed Gentry inthe immediate vicinity ofthe murder. See Gentry, 

### 125 Wn.2d at 581. Fred Buxton had beenmountainbiking around the time ofthe murder inthe area Holden was killed. Afterreading about her death in the newspaper three days after it happened, he recalled seeing an individual on the trail who had seemed out of place. The individual was oddly dressed for the weather, in a long coat or shirt open at the front, and wearing a distinctive hat. It 

### turned out Buxton had seen this person about 40 yards from where Holden was killed, possibly minutes after the murder. He called police and provided a composite sketch. He later identified Gentry out of a photomontage. Eilene Starzman contactedpolice after she saw the composite sketch ofthe suspect. She and her daughter recalled seeing a similar-looking man nearthe scene ofthe crime around the time the murder was believed to have taken place. Her description of the person's clothing was similarto Buxton's description, including the distinctive hat. After talking with police and believing the suspect might live in her neighborhood, Starzman began talking with neighbors and eventually located Gentry's home. Police subsequentlyapprehendedhim. In addition to eyewitness accounts placing Gentry near the scene of the crime, the State recovered several hair strands from the body. A pubic hair that likely came from a Caucasian individual was found on Holden's left thigh. Another hair, red-pigmented and likely of Caucasian origin, was found on her shoe. Finally, two hairs containing Negroid characteristics were found on Holden's t-shirt, which she had been wearing at the time ofher murder under a

-22-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### sweatshirt; the hairs were tucked between the sweatshirt and the t-shirt. When tested, both hairs were a type match for the hair of Gentry's brother, Edward. Approximately six percent ofthe black population would have hair ofthat type. Gentry's brother was at sea at the time ofthe murder and was not a suspect. But, the State also presented evidence that Gentry had been wearing clothing borrowed from his brother at the time ofthe murder. And, Holden and Gentry did notknow each other, nordid she know Gentry's family. Finally, a pair of Gentry's shoes were found to have been spattered with blood, and then cleaned. Theblood spattertesting revealed that thebloodmatched Holden and could have come from only 0.18 percent ofCaucasians. Gentry, 

### 125 Wn.2d at 581. It

### is true that the State made many references to race in the trial. But these
were legitimately tied to the physical and circumstantial evidence pointing to Gentry as the killer. For example, the State's repeated references to racial characteristics during testimony concerning the hair samples were appropriate. It 

### is true that the State offered no explanation for the Caucasian pubic hair. But a hairmatching hair from Gentry's brotherwas found on Holden's body. Giventhat Gentry was seen in the area at the time ofthe murder, and that blood matching Holden's was found on Gentry's shoes, it hardly seems improper for the State to have discussedtheracial characteristics ofthe hair samples whentheprime suspect
was African American. And given that the sample would have matched only six percent ofthe African American population, ithardly seems improper for the State

-23-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

to ask questions designed to exclude other sources ofthe hair, especially because individuals easily shed and pass on hair strands. See Response at 39 (discussing questions at trial that detailed the lack ofviable sources for the hair other than Gentry, i.e., that Holden's family did not utilize laundromats, that Holden had not played with any African American children since arriving from Pocatello, Idaho, two days before hermurder, and that no one who had contact with Holden's body afteritwas discovered was AfricanAmerican). 11 Gentry takes issue with the State's attempt to narrow the umverse of Holden's association with persons ofcolor to Gentry. He asserts that the State's belief "that a black man committed the crime is based on its factually unsupportable claim that Cassie and her family did not associate with black people." Reply at 11. Gentrypoints to the State's questioning regarding Holden's contacts withblack children inthe days before hermurder, asserting that the State incorrectly suggested Holden had no association with black playmates before she died. Onthis point, it appears Gentrymaybe correct. The State concedes itspresentation suggestedthat Holdenhadno association withpersons ofcolorinthe days before her death. Response at 39 (citing 52 VRP 3665, 3693-94, 3703, 3714). But in fact, police records reveal that Holden had a briefconversation with an African American child, her brother's friend Tyler, in the outdoor common area oftheir apartment complex the night before her murder,

11 Samples were taken from Holden's mother andherbrother Jamie to test against hairs found atthe crime scene. -24-In rePers. Restraintof Jonathan L. Gentry, 86585-0

where anumber ofchildren were gathered. Decl. ofTimothy K. Ford, Ex. 9 (Decl. ofJenniferDavis, Ex. B, June 14, 1988 Interview with Jamie Holden at 3). And, it is true that police records also reveal Holden's brother, Jamie, invited African American children besides Tyler into the Holden home in the hours after Holden went missing, though nothing in the record indicated ifthose children had ever been in the Holden house before. Decl. of Timothy K. Ford, Ex. 9 (Decl. of Jennifer Davis, Ex. B, June 15, 1988 Interview with Jamie Holden at 7). 12 Hair from these various children was not tested, and it is within the realm ofpossibility that the AfricanAmerican hair fragments recovered couldhave come from them. But the fact that hair from these children was not tested does not show bias
orimproper conduct onthepart ofthe State. The hairmatched a family member of Gentry. Gentry was seen by two eyewitnesses in the area. 13 Blood on Gentry's shoes matched Holden's. These facts indicate the State pursued a legitimate prosecution against a man who is African American, not against a man because he

12 Exhibit 9 consists ofseparate interviews with the Holden family, including two differentinterviews withJamie. 13 The NAACP argues that these witnesses demonstrate the State sought to use Gentry's "race as aproxy for guilt throughout the trial." Br. ofNAACP at 10. Itclaims that the testimony oftwo witnesses in particular "inappropriately suggested that a Black man would only be in a White neighborhood to commit a crime'' and "legitimized the ideathatWhitepeoplehadreasonto fear AfricanAmericans ingeneral andMr. Gentryin particular." !d. The entirety ofthe testimony inquestion does notbearoutthis assertion. Incontext, the witnesses' statements about Gentrybeing out ofplace wentto his clothing, not his race. Itwas a hot day, and all the eyewitnesses testified that he was overdressed for the weather. See 56 VRP 126-28; 57 VRP 145-46, 195-96; see also State v. Allen, 176 Wn.2d 611, 624-26, 294 P.3d 679 (2013) (holding that trial court did not abuse its discretion in refusing to give a cautionary cross-racial identification jury instruction where the white eyewitness based his identification mostly on the African American defendant's clothing and accessories, ratherthanonthe defendant's race). -25-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

is African American. In light ofthe foregoing discussion, we conclude that there
was nothing improperinthe State's focus on Gentry during the investigationphase
orinthepresentationofthe evidence againsthim. (5) Overall conduct Even when viewed against the backdrop of the systemic racism Gentry posits (e.g., the all-whitejury, the history ofcharging decisions), it is difficult to
come to the conclusion that most ofthe conduct complained ofwas improperly race-based. That is not to say that Gentry is incorrect when he complains that the criminaljustice system and the death penalty process in particular is plagued by race-based inequities. 

### See, e.g., BRYAN C. EDELMAN, RACIAL PREJUDICE, JUROR EMPATHY, AND SENTENCING IN DEATH PENALTY CASES (2006). But the broader inequities do not mean the prosecution here engaged in improper conduct within the contemplation ofour decision inMonday. To the contrary, a careful review of the evidence and its presentation does not support Gentry's assertions of racebased misconduct, other than the prosecutor's statement to defense counsel. Becausetheprosecutor's statementwas clearlyimproper, wemust further consider whetheritwasprejudicial. b. Does the "Harlem" comment demonstrate prejudice entitling Gentry to reliefonthispersonalrestraintpetition? Initially, it must be observed that Prosecutor Clem's "Harlem" comment, while extremely offensive, does not present the same sort ofprejudice to fair trial

-26-In re Pers. Restraintof Jonathan L. Gentry, 86585-0

rights as evident in Monday.l4 The comment was made outside of the jury's presence, andinno way affectedthepresentationthejuryheard. Thus, the conduct
was not an intentional appeal to racial bias that could have "undermine[d] the defendant's credibility or the presumption of innocence" and affected thejury's verdict. Monday, 171 Wn.2d at 680. As far as its impact on Gentry's trial is concerned, therefore, we conclude that the comment did not result in actual and substantialprejudiceto Gentry. Departing from the analysis in Monday, Gentry appears to argue that we must consider whetherthe cumulative effect ofall instances ofrace-based conduct, in concert with the racially charged nature ofthe crime and the absence at trial of persons of color other than Gentry and his counsel, constitute prosecutorial misconduct. But the hearings following the motion to disqualify Clem after his remark to Robinson fully explored whether there was racial bias tainting the proceedings against Gentry. Judge Strombom noted in her oral ruling that the "testimony [on the motion to disqualify] is quite clear, and is uncontradicted, that
no discretionary decision has been made because ofa racial bias or motivation." Suppl. VRP at 429 (Decl. of Timothy K. Ford, Ex. 16). "All of the evidence presented suggeststhere is no indication orhintthat anything was done inthis case that was done for a racially biased purpose." 

### Id. at 430. Judge Strombom's conclusions, made after a searching inquiry into serious allegations ofunethical

14 Amici curiae ACLU argue that in a capital case, this court should hold that a finding ofrace-basedprosecutorial misconduct shouldresultin automatic reversal. Br. of ACLU at 5. Nopartyhas advancedthis argument andwe decline to considerit. -27-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### behavior, assure us that Gentry did not suffer the sort of prejudice that we confronted inMonday. 

### Finally, Gentry argues that the evidence against him was thin atbest, so thin that racial bias had to have motivated the conviction. Likewise, he claims the evidence ofthe aggravators that made him death-eligible was so thin that racial bias must have contributed to thatjury finding. But unless the prosecution team appealed to racial bias, which has not been shown, an argument about the sufficiency ofthe evidence is not related to prosecutorial misconduct but is more akin to arguments already made and rejected on direct appeal. See Gentry, 

### 125 Wn.2d at 585 (challenging the science matching the blood on Gentry's shoes to Holden'stype). Applying theMonday 

### standard, we conclude that the "Harlem" remark does not rise to the level of reversible prosecutorial misconduct. The remark was harmless beyond areasonable doubtbecause thejurydid not know ofit and thus it could have had no effect on thejury's verdict. In this personal restraint context, the result is that Gentry cannot demonstrate actual and substantial prejudice to supporthis claimfor relief. CONCLUSION Gentry cannot receive the benefit ofthe new rule announced in Monday. 

### The burden-shifting rule announced in Monday 

### is not retroactive under Teague, 

### and we decline in this case to apply a different retroactivity analysis. Even when this case is viewed through the lens of Monday, 

### Gentry cannot demonstrate

-28-In rePers. Restraintof Jonathan L. Gentry, 86585-0



### prejudice. The one clear instance ofrace-based improper conduct on the part of the prosecution occurred outside the knowledge ofthe jury and could not have affected the outcome at trial. Recognizing the limited nature of the court's collateral review, we dismiss Gentry'spersonalrestraintpetition.

-29-In re Pers. RestraintPetition of Jonathan L. Gentry, 86585-0



### WE CONCUR: 

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-30-In re Pers. Restraint Petition ofJonathan L. Gentry, 86585-0

No. 86585-0

WIGGINS, J. (dissenting in part)
- Jonathan Lee Gentry filed a motion to remand for supplementation of the record or a reference hearing in light of our decision in State 

### v. Davis, 175 Wn.2d 287, 290 P.3d 43 (2012). I believe a reference hearing is necessary to examine pertinent statistics that would enable us to assess whether Washington's death penalty is imposed in a racially discriminatory manner. Because the majority declines to grant a reference hearing, I dissent. In all other respects, I agree with the majority. We are required to conduct proportionality review in every capital case. RCW 10.95.130(2)(b). The inquiry we engage in is whether the death penalty is "excessive
or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." /d. One of the primary goals of proportionality review is to
ensure that the death penalty is not imposed disproportionately on the basis of race. State v. Cross, 156 Wn.2d, 580, 630, 132 P.3d 80 (2006); State 

### v. Elledge, 144 Wn.2d 62, 80, 26 P.3d 271 (2001 ); State v. Gentry, 125 Wn.2d 570, 655, 888 P.2d 1105 (1995). Since Gentry's sentencing, new data has developed concerning race and the imposition of the death penalty in Washington. This data merits a new proportionality review.No. 86585-0 (Wiggins, J., dissenting in part) Only one otherAfrican American had received the death penalty when Gentry
was sentenced. In that case, the victim and defendant were of the same race and ethnicity. Since Gentry's sentencing, five additional African American men have been sentenced similarly (Sammie Luvene, Dwayne Woods, Cecil Davis, Covell Thomas, and Allen Gregory). Of the seven African American men sentenced to death, six received the death penalty for killing a person of a different race. 1 This statistic hints that race impacts the imposition of the death penalty and illustrates the need for a
new proportionality review. In Davis, I urged the court to conduct an evidentiary hearing on similar grounds. 175 Wn.2d at 389 (Wiggins, J., concurring in dissent). The majority there felt "constrained to note that the issue was not raised by the defendant." !d. at 362. In contrast to Davis, Gentry specifically requests a reference hearing to determine "whether [racial] disparities are statistically significant." Mot. to Set Oral Arg. or to Remand for Supplementation ofthe R. or a Reference Hr'g in Light of State 

### v. Davis, 175 Wn.2d 287, 290 P.3d 43 (Sept. 20, 2012) at 6. Thus, we do not face the constraints the majority felt in Davis. This court- should accordingly take this opportunity to remand Gentry's petition for an evidentiary hearing to determine whether, statistically speaking, the imposition of Washington's death penalty is skewed on the impermissible basis of race. The cost of any burden on the court system associated with conducting this reference hearing is negligible compared to the assurance that Washington fairly and proportionately imposes the death penalty.

' Only Caucasians (one of which is categorized as Caucasian-Native American) have received the death penalty for killing someone of the same race since Gentry was sentenced. 2No. 86585-0 (Wiggins, J., dissenting in part)

I dissent in part.

3