State v. Lindsay, 326 P.3d 125

Jennifer Holmes and James Lindsay entered Laurence Wilkey's home, tied him up, beat him, and took items Holmes claimed belonged to her.
Holmes and Lindsay were charged with first degree burglary, first degree robbery, first degree kidnapping, first degree assault, and four counts of firearm theft; tried jointly.
The jury convicted Lindsay on some counts and Holmes on some counts, with others acquitted or lesser included offenses.
Pretrial and trial conduct involved persistent incivility between prosecutor and Holmes’s counsel, which extended over the proceedings.
Most of the purported misconduct occurred in closing arguments and involved belittling defense counsel, misstating the burden of proof, and commentary about Holmes’s testimony.
Holmes and Lindsay moved for mistrial; the trial court deemed the comments not improper, and the Court of Appeals affirmed some prejudicial concerns but split on prejudice; the Supreme Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor misconduct occurred and was prejudicial	Holmes and Lindsay contend the prosecutor impugned defense counsel, misstated burden of proof, and demeaned witnesses.	State claims some remarks were provoked or not sufficiently prejudicial to warrant reversal.	Yes; reversible error due to substantial prejudice from pervasive misconduct.
Whether specific closing remarks and conduct tainted the trial to require reversal	Cumulative misconduct and personal opinions about credibility undermined fairness.	Any improper remarks could have been cured by curative instructions; not necessarily prejudicial.	Yes; the misconduct tainted the trial; remand for a new trial.

State v. Warren, 165 Wn.2d 17 (2008) (standard for prejudice in prosecutorial misconduct)
State v. Thorgerson, 172 Wn.2d 438 (2011) (impugning defense counsel’s integrity and ‘sleight of hand’ language)
State v. Johnson, 158 Wn. App. 677 (2010) (puzzle analogy improper; misstates burden of proof)
State v. Curtiss, 161 Wn. App. 673 (2011) (puzzle analogy not improper in some contexts)
State v. Fuller, 169 Wn. App. 797 (2012) (distinguishes Johnson vs Curtiss on puzzle analogies)
State v. Walker, 164 Wn. App. 724 (2011) (improper exhortations regarding burden of proof)
In re Personal Restraint of Glasmann, 175 Wn.2d 696 (2012) (pervasive misconduct may be incurable by instruction)
Prantil, 764 F.2d 548 (9th Cir. 1985) (mistrial motion after closing argument preserves review)
United States v. Sanchez, 659 F.3d 1252 (9th Cir. 2011) (prejudice from end-of-closing remarks)
United States v. Carter, 236 F.3d 777 (6th Cir. 2001) (prejudice from closing comments)