In State v. Lindsay (No. 88437-4), the Washington Supreme Court unanimously held that a new trial was the appropriate remedy for a “trial plagued by misconduct.”


Jennifer Holmes and James Lindsay were charged with first degree robbery, burglary, kidnapping, assault, and firearm theft. A jury convicted on most, but not all, counts.

During trial, the prosecutor and Holmes’s counsel “trad[ed] verbal jabs and snide remarks,” with the prosecutor claiming that Holmes’s counsel “wanted a ‘Burger King trial … [to] have it my way’” and explaining that “I didn’t object earlier because I was laughing so hard it was so stupid.” Holmes’ counsel, for her part, told the prosecutor to “kindly shut up” and suggested that maybe the prosecutor “could borrow Your Honor’s gown and tell us all how to run this trial.”

Against that backdrop, the prosecutor described the defense’s closing argument as “This is a crock. What you’ve been pithed for the last four hours is a crock.” Also during closing argument, the prosecutor characterized Holmes’s testimony as “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard,” and opined that Holmes “should not get up here [on the witness stand] and sit here and lie.” As for the State’s burden of proof — beyond a reasonable doubt — the prosecutor compared it to the certainty one needs to cross the street in a crosswalk and quantified that standard by analogizing to a partially completed jigsaw puzzle. The prosecutor also asked the jury to “speak the truth” by convicting the defendants and whispered to the jury so that no one else in the courtroom could hear him.

The Court of Appeals agreed that the prosecutor committed misconduct, but split about whether that misconduct was prejudicial. Two judges thought it was; one did not. The Washington Supreme Court accepted review and unanimously reversed.


A defendant alleging prosecutorial misconduct bears the burden of showing that the prosecutor’s conduct was both improper and prejudicial. Here, the Supreme Court found that the prosecutor’s conduct was improper, first noting that by characterizing defense counsel’s closing argument as “a crock,” the prosecutor improperly impugned the role and integrity of counsel. Turning to the burden of proof, the Supreme Court explained that the prosecutor’s jigsaw puzzle analogy improperly quantified the degree of certainty the jurors needed to convict defendants, and that his crosswalk narrative was an analogy to an everyday experience that trivialized the standard of proof. The Court found that telling the jury to “speak the truth” also misstated the burden of proof. Lastly, the Court found the prosecutor impermissibly expressed his personal opinion about the defendants’ credibility and improperly made statements so softly that only the jury could hear him.

Having found the prosecutor’s conduct improper, the Supreme Court turned to whether such conduct was prejudicial. After rejecting the argument that the prosecutor’s behavior was excused by Holmes’s counsel’s unprofessional conduct, the Court found that there was a substantial likelihood that the prosecutor’s conduct influenced the jury’s verdict, especially as many of the comments were made at the end of the prosecutor’s rebuttal closing argument, when comments are more likely to cause prejudice.


The Supreme Court understandably found that the comments by the prosecutor and Holmes’s counsel “permeated” the record and made it difficult for the jury to focus on the actual issues in the case — namely, the guilt or innocence of the defendants. That lack of professionalism threatened not only the fairness of the trial, but also public respect for the courts. See also Jones v. City of Seattle, 179 Wn.2d 322, 371, 314 P.3d 380 (2013)(González, J., concurring). This decision should serve as yet another reminder of the importance of civility in the legal profession.