Andre McKenzie's 2019 conviction for attempted child rape and communication with a minor for immoral purposes fell apart because of two words: "gorilla pimp."
The sex-trafficking term, invoked by Pierce County deputy prosecutor John Neeb during McKenzie's trial, recently prompted a trio of state appeals court judges to reverse his conviction and six-year prison sentence.
While the words are familiar at street level, they didn't belong in court, according to the Division III panel's unanimous opinion, issued April 21.
"Racist rhetoric has no place in our justice system," wrote Judge Rebecca Pennell. "It is hurtful, thwarts due process, and undermines the rule of law."
Neeb, who voluntarily retired from the prosecutor's office in February after 30 years of service, said in a recent interview that he did not use the term in a racial context.
"I have never once injected racial overtones into a trial, and I didn't do it in McKenzie," he said.
The appeals court disagreed.
"At this point in our history, we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric," the opinion stated.
McKenzie, 32, was arrested in 2018 along with 20 other men as part of a "Net Nanny" operation conducted by the State Patrol. 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, according to court records.
While 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 had posed as the underage girl. Questioned by McKenzie's defense attorney, Mark Quigley, the detective explained the context of the text message exchanges with McKenzie.
At one point, Quigley asked whether McKenzie intended to act as a pimp for the fictitious young girl. In text message exchanges preserved in court records, McKenzie had denied such interest.
During a redirect examination of Rodriguez, Neeb followed up on 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?
A: Yes.
Q: What are those?
A: A gorilla pimp is someone who is very aggressive. They're very direct. They're going to tell you what they want. 'This is what you're going to do.'
I've had them try to get me or the people they're victimizing to pay them for that. For them to be sexually exploited, they actually want the victim to pay them for it. As far as a romance pimp, they're going to come across as your boyfriend or your friend. They're going to romance you, get you into the situation where then they have control. They can continue to play the romance role or they can switch to a more aggressive pimp or they can go back and forth."
Quigley did not object, and Neeb did not refer to the "gorilla pimp" term again, according to court records, but the court's opinion contends the exchange tainted the trial.
"No witness had used this terminology and the issue of pimping had minimal relevance," the opinion states. "The only purpose served by referencing the gorilla pimp concept was to tap into deep seated racial prejudice by comparing Black human beings to primates. The State cannot prove that this racist rhetoric was harmless beyond a reasonable doubt."
In arguments preceding the court's decision, Pierce County's appellate attorneys contended that misspelling was part of the issue, and that the trial transcripts should have said "guerrilla pimp" when referencing the trafficking terminology. Both spellings appear in online sources, though the "guerrilla" spelling is less common.
"Gorillas don't speak," Neeb said in a recent interview. "Guerrillas do. The guerrilla pimp uses terrorist tactics and brute force. It's just wrong that this is a term that references an animal."
The appellate court opinion called the spelling argument "unconvincing," and added, "A reasonable person listening to Detective Rodriguez would understand his description of a gorilla pimp to be related to animal-like behavior, not the activity of some military combatant."
Pierce County Prosecutor Mary Robnett retains the option to appeal the decision to the state Supreme Court. That won't happen, spokesperson Adam Faber said:
"Even before (the) decision, our office has been training deputy prosecutors on avoiding this type of language. Appeals courts are making clear that they find certain language and arguments by prosecutors to be prejudicial. After the decision was issued, our appellate team leader put out a bulletin to all deputy prosecutors highlighting the ruling and again instructing them on not using terms like this. We do not plan to appeal this ruling."
The court's opinion in the McKenzie case also cited two prior examples of rhetoric from Neeb that led to reversals. In September, an appellate court found that Neeb's invocation of the O.J. Simpson case wrongly suggested "racist stereotypes." Joshua Kioni Ellis, the defendant in the case, was convicted in 2019 of second-degree murder after fatally shooting his ex-girlfriend, Wendi Traynor.
The appeals court unanimously agreed that Neeb wrongly invoked the Simpson trial in an effort to explain "implicit bias," a concept relating to the need for jurors to be impartial as they consider the 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 invoked the Simpson case as an example of a famous trial jurors might recognize, in an effort to say similar circumstances should not influence the jury.
The appeals court disagreed with that approach, suggesting that the reference was too inflammatory and could have prejudiced the jury, which included Black members.
"The prosecutor's misconduct, occurring at the inception of the case, planted in the jurors' minds that Ellis was like O.J. Simpson, who many people believe was guilty of murdering his wife even though he was acquitted at trial. We cannot conclude beyond a reasonable doubt that the misconduct did not affect the jury's verdict."
Following his original conviction, Ellis was sentenced to 23 years and four months in prison. Prosecutors are seeking a new trial on the charges, scheduled for July. He remains an inmate in 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 1991 shooting. The defendant, Larry Edward Tarrer, was originally convicted of second-degree murder and first-degree assault in an incident that began with a dispute over drugs.
Neeb was not the prosecutor in the original case. Tarrer's conviction was reversed in 2006, following a state Supreme Court ruling affecting multiple second-degree murder cases across the state. Ultimately, that led to a new trial for Tarrer, this time on a charge of first-degree murder. By this time, Neeb was handling the case.
In 2010, a jury convicted Tarrer again. Again, he appealed, arguing that Neeb wrongly invoked the Sept. 11, 2001, attacks on the World Trade Center to discuss the idea of "reasonable doubt." Neeb had used the attacks as a way of discussing an example of an incident that jurors might not have witnessed directly but could still believe had occurred.
Tarrer argued that the reference was inappropriate because he was Muslim. For that and other reasons, the appeals court agreed. His conviction was reversed again. Tarrer received a third trial, again with Neeb as lead prosecutor, and was convicted a third time in 2016.
As in the McKenzie case, Neeb contends that he did not deliberately inject racial overtones in the other two trials.
Robnett's office has another decision to ponder: whether to pursue a new trial for McKenzie and seek another conviction.
"We are reviewing the evidence and weighing our options," Faber said.
