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Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, March 21, 2021

Court of Appeals of Washington Finds No Error in Prosecutor Repeatedly Referring to Defendant as a Hornet's Nest

Does a prosecutor commit misconduct by repeatedly referring to a defendant as "a hornet's nest?" That was the question addressed by the Court of Appeals of Washington in its recent opinion in Matter of Richmond, 2021 WL 1032855 (Wash.App. 2021).

In Richmond, Joseph Richmond (1) killed Dennis Higginbotham by striking him in the head with a two-by-four wooden board; and (2) claimed he was acting in self-defense, arguing that Higginbotham was coming at him with a knife. Thereafter, 

In explaining its case, the prosecutor used a hornet's nest analogy. The prosecutor asked the jury, “have you ever heard the analogy, don't poke a hornet's nest with a stick[?]”...“Well, ladies and gentlemen, Joe Richmond is a hornet's nest. And you don't need a stick to poke him to set him off.”...The hornet's nest analogy was repeated at various times throughout summation. In addition to referring to Mr. Richmond as a hornet's nest, the prosecutor described Mr. Richmond as “king of the nest, “king of the world,” and “irrational.”...The prosecutor's comments did not inspire a defense objection. The prosecutor concluded their thoughts by arguing the “[d]efendant is charged with murder in the second degree and the state is asking you to find self-defense doesn't apply to the hornet's nest.” 

After he was convicted, Richmond appealed, claiming that the prosecutor committed reversible error by repeatedly referring to him as a hornet's nest. The Court of Appeals of Washington began by noting that

Animal imagery can sometimes be improper, but not always. Context matters.

The most obvious problem with animal analogies is they can convey racist sentiments. We discussed this issue in State v. Barajas, 143 Wash. App. 24, 39, 177 P.3d 106 (2007). The Barajas prosecutor compared the defendant's conduct to that of a “mangie [sic], mongrel mutt.”...These words tended to convey a derogatory message about someone being “mixed race.”...As such, the prosecutor's argument had the capacity to cultivate juror bias and irrational thinking. Such racially charged rhetoric is insidious misconduct....It can never be condoned.

Even when an animal analogy lacks racist connotations, it can send a dehumanizing message. Calling someone a snake or a rat conveys the idea that the person, regardless of race, does not merit full treatment as a human and, as a result, a jury need not be as concerned about the individual's rights or circumstances. Such derisive comments are improper

The court then added, though, that

not all human-animal comparisons are racist or dehumanizing. Some analogies are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as a bee. Other analogies are negative, though not in a particularly dehumanizing way. For example, calling someone a chicken has more to do with the anthropomorphism of gallinaceous birds than with human denigration. There are also analogies that are simply neutral. A politician who favors escalating military conflicts may be called a hawk; one with an opposite perspective being a dove. An official who is in the last portion of an elected term is a lame duck. An individual or group seeking to keep politicians (be they hawks, doves, lame ducks, or otherwise) accountable might be referred to as a watchdog....

Unless an analogy conveys racist sentiment or is otherwise dehumanizing, we should give breathing room for attorneys to connect with jurors and try their cases. In addition, if a particular analogy is ambiguous, our appellate review should be guided by a presumption of good faith.

Applying this analysis, the court concluded that

Looking at the analogy here, nothing about a hornet's nest analogy places it outside the bounds of permissible trial argument. As Mr. Richmond concedes, the analogy carries no apparent racial implications. Nor is it particularly dehumanizing. Similar to what is true of lame duck or watchdog, the primary definition of a “hornet's nest” has to do with people, not animals: “a troublesome or hazardous situation” or “an angry reaction.”...While a hornet or hornet's nest is not an entirely positive comparison, the comparison appears to have more to do with the anthropomorphism of stinging wasps than an attempt to suggest a person compared to a hornet or a hornet's nest is less than human.

Nor did the hornet's nest analogy appear obviously improper when viewed in the context of Mr. Richmond's trial. The prosecutor appears to have invoked the hornet's nest analogy to explain Mr. Richmond's behavior in a way the jury might find relatable. Not everyone has been exposed to individuals with quick, violent tempers. But most people are familiar with the concept of an easily angered hornet. We do not doubt one could read the hornet's nest analogy as improperly suggesting Mr. Richmond shared an insect's inability to engage in the type of rational thought required for self-defense. But this dehumanizing interpretation is far from obvious. Indeed, had the analogy been obviously offensive, one would wonder why it took Mr. Richmond and his various attorneys so long to raise this argument.



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I note that one judge dissented. While the dissent indulged in a bit of its own rhetorical excess, I found it cogent, penetrating, and persuasive; moreover, the majority didn't have much of a response to the points raised. The dissenting judge also previously spent at least some of his time defending police in § 1983 cases, which tends to blunt any accusations of being a bleeding heart overly sympathetic to criminal defendants. He was originally appointed by Gov. Inslee, so I'd say that was a solid pick.

Posted by: hardreaders | Mar 22, 2021 6:48:20 AM

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