State v. Dhaliwal , 150 Wash. 2d 559 ( 2003 )

Chambers, J.

(concurring) — I concur with the result reached by the majority. I write separately because I want to express my view that questioning of witnesses and arguments based on impermissible stereotypes of members of the Sikh faith as passionate and violent are improper.

It is an established violation of a criminal defendant’s federal due process and equal protection rights for a prosecuting attorney to make biased arguments associating the defendant with members of a particular ethnicity, geographic region, or religion. Bains v. Cambra, 204 F.3d 964, 974 (9th Cir. 2000). While testimony and arguments about Sikh beliefs that may show a defendant’s motive and intent to commit a crime may sometimes be constitutionally permissible, prosecutorial arguments inviting the jury to submit to prejudices and stereotypes are not. Id. at 974-75.

From the beginning to the end of Paramjit Dhaliwal’s trial, the prosecution maintained a theory of the case that relied, in part, upon impermissible stereotypes of the Sikh religious community from Punjab, India. Key to this theory was the contention that all Sikhs feel a “deep sense of disrespect” from curse words and having their turbans knocked off. Report of Proceedings (RP) (Feb. 13, 2001) at 2. “[Vjirtually every Sikh witness that testified told you about how cursing and swearing is a sign of fundamental disrespect.” Id. at 30-31. “[T]he turban was knocked off and how that was a fundamental sign of disrespect.” Id. at 32. Additionally, the jury heard that Sikhs “are a very passionate group” that might kill just “because [they] have been disrespected.” RP (Jan. 23, 2001) at 19. The jury was being invited to draw the impermissible inference that Dhaliwal, like all other Sikhs, and solely on account of being Sikh, was compelled to murder the next person to disrespect him. The prosecuting attorney returned again to this theme in his closing when he argued that the injured pride and respect from having a turban knocked off could not be healed until “he was able to shoot and kill” a member of the opposing faction for knocking the turban off his head. RP (Feb. 13, 2001) at 33. This argument was improper.

It is improper prosecutorial conduct to invoke the stereotype that members of a particular religious faith are militant and prone to violence. I do not share the majority’s confidence that any curative instruction could have cured the prejudice this improper conduct spawned. Freedom from such persecution based upon religion and ethnicity should be a basic right in a free society, jealously guarded by its courts.

I agree with the majority that Dhaliwal has not shown prejudice, but I emphasize a different basis. Dhaliwal was not prejudiced because he also embraced the stereotype that Sikhs are prone to violence to advance his theory of the case; that because his victim was a Sikh, he feared bodily harm from his victim and acted in self-defense. See majority at 576 nn.13, 14. I conclude that Dhaliwal’s failure to object, failure to ask for a curative instruction, and his own interjections of religious stereotypes when combined, constitute waiver; and I concur with the majority in its result.

Two wrongs do not make a right, and theories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.

SandeRS, J., concurs with Chambers, J.