Andre McKenzie’s 2019 conviction for attempted child rape and immoral communication with a minor collapsed over two words: “gorilla pimp.”
The term sex trafficking, invoked by Pierce County Assistant District Attorney John Neeb, during McKenzie’s trial, recently prompted a trio of state appeals court judges to overturn his conviction and six-month sentence. years in prison.
While the words were familiar at street level, they didn’t belong in court, Division III panel says unanimous opinionpublished on April 21.
“Racist rhetoric has no place in our justice system,” Judge Rebecca Pennell wrote. “It’s hurtful, it goes against due process and undermines the rule of law.”
Neeb, who voluntarily retired from the district attorney’s office in February after 30 years of service, said in a recent interview that he does not use the term in a racial context.
“I’ve never once injected racial overtones into a lawsuit, and I didn’t in McKenzie,” he said.
The appeals court disagreed.
“At this point in our history, we shouldn’t have to stress that using a gorilla analogy when discussing human behavior, especially black male behavior, is clearly a racist rhetoric,” the opinion said.
McKenzie, 32, was arrested in 2018 along with 20 other men as part of a State Patrol “Net Nanny” operation. He exchanged text messages with a detective posing as an underage girl, then drove from Seattle to meet her in Puyallup, intending to have sex, court records show.
Although the victim did not exist, McKenzie’s intent led to the charges. A jury convicted him in December 2019.
The trial included testimony from State Patrol Detective Carlos Rodriguez, who posed as the underage girl. Questioned by McKenzie’s defense attorney, Mark Quigley, the detective explained the background to the text message exchanges with McKenzie.
At one point, Quigley asked if McKenzie intended to pimp the fictional girl. In text messages stored in court records, McKenzie denied any such interest.
On a re-examination of Rodriguez, Neeb went along with the idea. The appeals court decision quotes the testimony:
“The prosecutor initiated the following exchange:
Q: Are you familiar with the terms gorilla pimp and romance pimp?
Q: What is it?
A: A gorilla pimp is a very aggressive person. They are very direct. They will tell you what they want. That’s what you’re going to do.
I made them try to make me or the people they victimize pay for it. In order for them to be sexually exploited, they actually want the victim to pay them for it. When it comes to a romantic pimp, they’re going to come across as your boyfriend or friend. They will seduce you, put you in a situation where they will then have control. They can continue to play the role of romance or they can move on to a more aggressive pimp or they can go back and forth.
Quigley did not object, and Neeb no longer referred to the term “gorilla pimp,” according to court records, but the court’s opinion holds that the exchange tainted the lawsuit.
“No witnesses had used this terminology and the issue of pimping was of minimal relevance,” the opinion states. “The only purpose served by referring to the concept of the gorilla pimp was to tap into deep-seated racial prejudices by comparing black human beings to primates. The state cannot prove that this racist rhetoric was harmless beyond a reasonable doubt.
In arguments leading up to the court ruling, Pierce County appellate attorneys argued that the misspelling was part of the problem and that the trial transcripts should have said “guerrilla pimp” when referring trafficking terminology. Both spellings appear in online sources, although the “guerrilla” spelling is less common.
“Gorillas don’t talk,” Neeb said in a recent interview. “The guerrillas do it. The guerrilla pimp uses terrorist tactics and brute force. It is simply wrong that this term refers to an animal.
The appeals court opinion called the spelling argument “unconvincing” and added, “A reasonable person listening to Detective Rodriguez would understand that his depiction of a gorilla pimp relates to animal behavior, and not to the activity of a military combatant”.
Pierce County District Attorney Mary Robnett retains the ability to appeal the decision to the state Supreme Court. That’s not going to happen, spokesman Adam Faber said:
“Even before (the) decision, our office trained assistant prosecutors to avoid this type of language. Courts of appeal make it clear that they consider certain words and arguments of prosecutors to be prejudicial. After the decision was rendered, our appeals team leader issued a bulletin to all assistant prosecutors outlining the decision and again asking them not to use terms like this. We do not plan to appeal this decision. »
The court’s opinion in the McKenzie case also cited two earlier examples of Neeb’s rhetoric that led to inversions. In September, an appeals court found that Neeb’s reliance on the OJ Simpson case wrongly suggested “racist stereotypes”. Joshua Kioni Ellis, the defendant in the case, was convicted in 2019 of second-degree murder after shooting and killing his ex-girlfriend, Wendi Traynor.
Court of Appeal unanimously agreed that Neeb incorrectly invoked the Simpson trial in an effort to explain “implied bias”, a concept related to the need for jurors to be impartial when considering evidence.
The Simpson case involved a black man accused of killing a white woman. The Ellis case also involved a black man accused of killing a white woman. Neeb argued that he cited the Simpson case as an example of a famous trial that jurors might recognize, in an attempt to say that similar circumstances should not sway the jury.
The appeals court disagreed with this approach, suggesting that the reference was too inflammatory and could have prejudiced the jury, which included black members.
“The misconduct of the prosecutor, which occurred early in the case, planted in the minds of the jurors that Ellis was like OJ Simpson, whom many believe guilty of the murder of his wife even though he was acquitted in the court case. We cannot conclude beyond a reasonable doubt that the misconduct did not affect the jury’s verdict.
Following his initial conviction, Ellis was sentenced to 23 years and four months in prison. Prosecutors are asking for a new trial on the charges, scheduled for July. He remains in custody at the Pierce County Jail.
The appeals court in the McKenzie case cited a third example involving Neeb’s courtroom rhetoric, though the case is much older and more complex, originally dating to a fatal shooting. in 1991. The defendant, Larry Edward Tarrer, was initially convicted of second degree murder and first degree assault in an incident that began with an argument over drugs.
Neeb was not the prosecutor in the original case. Tarrer’s conviction was overturned in 2006, following a state Supreme Court ruling affecting several statewide second-degree murder cases. Ultimately, this led to a new trial for Tarrer, this time for first-degree murder. At that time, Neeb was handling the case.
In 2010, a jury again convicted Tarrer. Again he appealed, arguing that Neeb had wrongly invoked the September 11, 2001 attacks on the World Trade Center to discuss the idea of ”reasonable doubt”. Neeb had used the attacks as a way to discuss an example of an incident that the jurors might not have witnessed directly but could still believe had occurred.
Tarrer argued that the reference was inappropriate because he was a Muslim. For this reason and others, the Court of Appeal agreed. His conviction was again overturned. Tarrer went through a third trial, again with Neeb as lead prosecutor, and was convicted a third time in 2016.
As in the McKenzie case, Neeb argues that he did not deliberately inject racial overtones into the other two trials.
Robnett’s office has another decision to make: whether to pursue a new trial for McKenzie and seek another conviction.
“We are reviewing the evidence and weighing our options,” Faber said.