Appellate lawyer tells Washington panel prosecutors 'preconditioned' jury in Angulo Diaz appeal

Ariana Downing, an attorney with the Washington Appellate Project representing Juan Manuel Angulo Diaz, told a three-judge Washington appellate panel on Tuesday that prosecutors departed their duty by eliciting expert-style testimony from jurors and emotionally emphasizing the alleged victim's suffering.

"When prosecutors seek a conviction from an accused, they have a duty to seek that conviction using competent evidence and only competent evidence," Downing told the court, arguing the prosecutor in this case "departed from that duty in 3 important ways." She said the questions posed to jurors about their professions and experiences served to "precondition the rest of the jury to accept the state's" theory rather than to identify juror bias or permit meaningful challenges.

Downing emphasized voir dire concerns first. She told the panel that asking jurors with relevant experience to explain their professional expertise to the entire panel effectively educates jurors about the issues and creates influence that a curative instruction would not erase. "He was treating these witnesses, witnesses, these jurors as witnesses," she said, describing emotional questioning she said was resistant to curative instruction.

The state, represented by Samantha Kenner of the King County Prosecutor's Office, urged the court to affirm. Kenner said Angulo Diaz had not shown prosecutorial misconduct that amounted to incurable error and stressed case law supporting the permissible purposes of voir dire. "This court should affirm because Angulo Diaz has failed to demonstrate prosecutorial misconduct in ... cross examination or in closing argument," Kenner said, adding that even if a line was crossed the defense had not demonstrated prejudice that could not have been cured by a timely instruction.

Kenner pointed to Washington precedent and cited a California case quoted in Frederickson to show that, while some voir dire questions may educate jurors as a secondary effect, they can still serve appropriate purposes. She also argued that peremptory challenges need not be based on actual demonstrated bias: "Peremptory challenges do not have to be challenges for actual bias," she said, framing the prosecutor's questioning as a legitimate search for predispositions or proclivities relevant to jury selection.

The panel questioned both sides about the boundaries between permissible voir dire and impermissible indoctrination. Downing returned in rebuttal to press that Juror 21 — who volunteered during voir dire that she had been an assault victim and had delayed disclosure — was asked follow-up questions about her experience in a way that would predispose a jury to accept similar testimony from the complainant. Downing acknowledged she could not cite an exact case off the top of her head about incurable misconduct but urged the court to consider cumulative prejudice and reverse on that basis.

Neither side asked the court to take new testimony; the argument focused on whether trial counsel's objections (or lack of timely objections) and the trial judge's instructions were sufficient to avoid an unfair trial. Downing asked the panel to reverse based on prosecutorial misconduct; Kenner asked the court to affirm, saying the record shows no incurable error.

The court heard both sides and concluded argument after the rebuttal and customary bench exchanges. The panel did not announce a decision at the hearing; the court will issue a written opinion.