 Darnai Vaile (Photo: The Seattle Times)
The caller, Patricia Murray, said she did not want to end up like “Jodie Foster on the pool table,” an apparent reference to the gang-rape scene in the movie, The Accused. Murray described the man who kissed her as “extremely large.”
By the time deputies Michael Vicini and Clay Hilton arrived at the restaurant, a crowd that included Murray and her sister, Julia Napier, had gathered in the parking lot. As Murray described the man to the deputies, 23-year-old Darnai Vaile came around the corner. Vaile, who is Black, was 6 feet 10 inches tall and weighed about 300 pounds. He told the deputies he wanted to tell his side of the story.
The deputies would later say that Vaile became further agitated when they asked to pat him down for weapons. Vaile had a knife in his pocket. He reached for it, but the deputies told him to stop. Vaile pulled the knife out of his pocket and dropped it on the ground. By now, other deputies had arrived, and they swarmed Vaile. He was hit with a baton, thrown to the ground, and handcuffed.
Napier yelled at the officers as they subdued Vaile with force, and a deputy warned her to step back. When she didn’t, he arrested her for obstructing justice. She then hit the deputy in the face and was charged with assault.
Vaile was charged with three assault counts, resisting arrest, obstruction, and possession of a dangerous weapon.
Vaile’s trial began in December 2020 in Spokane County Superior Court. Vicini and Hilton each testified that Vaile approached them in an aggressive manner and refused to comply with their commands.
Hilton testified that Vicini grabbed Vaile by the wrist to keep Vaile from reaching for the knife in his pocket. He said that Vaile lifted Vicini off the ground, pulled out his knife and dropped it to the ground. It was at this point that another deputy hit Vaile with a baton. Vaile ended up face down on the pavement, with his hands beneath his body, as the officers handcuffed him.
Vicini testified that Vaile did not threaten the officers, either with his person or the knife. Other than resisting arrest, Vaile did not fight with the officers, Vicini testified. He also said that he did not hear Vaile say anything during the arrest.
Murray testified that the officers grabbed Vaile by the neck and tackled him when he approached with his hands up and said he had a knife. She said that Vaile “just stood there” while they “threw him to the ground.” Murray later testified, “they attacked him and it was very violent, and it’s upsetting, and even though what happened to me was wrong, that was wrong too.”
Murray had filmed about 10 seconds of the incident on her cellphone. On the clip, she can 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.” In the background, Vaile could be heard saying, “I’m not doing nothing. I’m putting my arm right here.” At the time Vaile made his statement, he was being hit with batons, taken to the ground by three or four deputies and handcuffed.
Vaile’s attorney moved to introduce the video into evidence. The state objected, arguing that the recorded statements were hearsay. Vaile’s attorney said the statements qualified as exceptions to the hearsay rule, because they were so-called excited utterances. Judge Tony Hazel allowed jurors to view the video, but with the sound off.
Three witnesses testified for Vaile. Each said that Vaile did not act aggressively, and did not fight, push, or attack the deputies.
Vaile testified that he went outside of the restaurant after Murray called 911. He said he was nervous as he approached the officers and put his hands in his pockets and realized he had a knife. He said he feared getting shot and told the deputies that he had the weapon.
He said he tossed the knife on the ground and walked over to the patrol car, as the deputy requested. Vaile said the officers swarmed him and he fell face first to the pavement. He said: “I was trying to adjust myself, so they can put my wrists together because the way they had me right now, I couldn’t put my wrists together.”
His attorney asked: “Were you trying to say anything? Did you tell them anything?”
A: Yes. I told them I can’t put my wrists together.
Q: And what happened next? Did they do anything to help you?
A: No.
Q: How did you eventually get to a place where your hands could be put together?
A: I started forcing my arm down, and I said put my arm here, and he still had one of my arms up here, and he said stop resisting.
During the trial, the state dismissed the weapons charge.
On November 2, 2020, the jury acquitted Vaile of the assault charges but convicted him on two counts of misdemeanor resisting arrest. Judge Hazel sentenced Vaile to six months on probation. At the same trial, Napier was convicted of assault. Her conviction was affirmed on appeal.
In his appeal, Vaile said that Judge Hazel erred in not allowing jurors to hear the audio in the cellphone recording. Murray’s statements on the recording corroborated the testimony of other witnesses, the appeal said, and Vaile’s statements fell clearly within the boundaries of exceptions to hearsay evidence, because they were “excitable utterances” made during a frenetic event.
“Multiple police officers threw Mr. Vaile to the ground and beat him,” the appeal said. “The event was all the more startling because it was racially charged. Multiple white male police officers were attacking a large Black man accused of sexually assaulting a White woman. As Mr. Vaile explained, he was afraid he was going to be shot due to the ‘history’ of police encounters with men like him.”
The appeal said that the charge of resisting arrest required intent, and Vaile’s statement on the recording that he was trying to move his arm suggested that he was trying to cooperate.
On May 11, 2023, A three-judge panel in Division III of the Washington Court of Appeals vacated Vaile’s conviction and granted him a new trial. The court said that Judge Hazel’s ruling to exclude the audio portion of the cellphone recording violated Vaile’s right to present a defense.
“Vaile’s statement was clearly an excited utterance,” the court said. “At the time Vaile made his statement, he was under the stress of being hit with batons, taken to the ground by three or four deputies and handcuffed. His statement was related to the event as he was expressing his attempts to comply with the officer’s demands to move his hands.” The opinion was written by Judge Tracy Staab and joined by Judge Robert E. Lawrence-Berrey.
In a separate opinion, then-Chief Judge George Fearing said his colleagues didn’t go far enough. “Reversal and remand for a new trial does not suffice to correct the prejudice debasing African-American Vaile’s prosecution,” Fearing wrote. He recommended dismissal based on “race-based government misconduct.”
He also criticized his colleagues for excluding the opinion from the official Washington Appellate Reports.
Vaile’s trial took place seven months after George Floyd was killed by police in Minneapolis, Minnesota. After Floyd’s death, the Washington Supreme Court published an open letter decrying racism in society and the courts.
“As judges, we must recognize the role we have played in devaluing black lives,” the court wrote in the letter. “We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.”
Fearing wrote in his dissent that the entire case was infected with racial bias, from the 911 call regarding an unwanted kiss and the arrival of six to eight sheriff’s deputies, to Vaile’s arrest by force and a prosecution that played to the jury’s biases and fears.
In closing arguments, the prosecutor had said: “You heard from Deputy [Griffin] Criswell. He also responded to the scene. When he got to the scene, he testified he didn’t see any of the preliminary activities, but he saw the deputies, one on each arm, trying to control Mr. Vaile. He saw the knife that was lying on the ground. He testified that it looked to him as if Mr. Vaile was tossing the deputies around like they were rag dolls.”
But Fearing said that was false. “Sheriff Deputy Griffin Criswell never testified to any violence by Darnai Vaile directed at the officers, let alone that he viewed Vaile tossing deputies like rag dolls. The closing argument’s picture of Vaile simultaneously throwing two law enforcement officers as if they were Raggedy Ann dolls catered to a stereotype of African-American men as violent brutes bred to be large and strong. The prosecuting attorney’s egregious fabrication removes any doubt that racism infected this prosecution and ends any reluctance to pen this jeremiad.”
Fearing wrote that the wife of Larry Haskell, the Spokane County Prosecuting Attorney, considered herself a white nationalist and had a long history of making racist statements. Haskell repudiated the remarks but said his wife wasn’t a racist. “This denial impugns the integrity of the prosecuting attorney’s office,” Fearing wrote.
Fearing wrote that deputies testified that Vaile raised a clenched fist in the seconds before his arrest. The civilian witnesses did not corroborate that gesture. “Regardless, the clenched fist serves as a symbol of African-American rebelliousness and assertion of power against white control,” he wrote. “Testimony from officers of the clenched fist posed an opportunity for the State to insert the stereotype of African-American Vaile mutinying against government authority.”
On May 18, 2023, the district attorney’s office moved to dismiss the charges against Vaile. “Given that Mr. Vaile was acquitted on the felony charges and only the simple misdemeanor charges of resisting arrest remain, the State has determined that retrial would neither be a prudent use of judicial and administrative resources, nor further any deterrent or protective purpose,” the state said.
The dismissal required a mandate from the appellate court, which was issued in July. The case was dismissed August 1, 2023.
– Ken Otterbourg
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