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Court of Appeals hears argument over prosecutor’s references to counsel’s race and family "culture" in Ding case
Summary
In Division 2 oral argument in case no. 599635, appellant counsel argued a prosecutor’s closing remarks that invoked opposing counsel’s race and the defendants’ "culture" injected impermissible stereotypes and require reversal; the state countered that the remarks described family dynamics reflected in the record. The court paused for a shift change after hearing extended argument.
Acting Chief Judge Eric Price opened Division 2 of the Washington Court of Appeals and heard oral argument in case no. 599635, a criminal appeal in which the appellant contends a prosecutor’s closing argument improperly relied on race- and culture-based characterizations that prejudiced the defense.
Neil Fox, attorney for the appellant, reserved rebuttal and told the court that "it is improper in court to use opposing counsel as a rhetorical prop" and that "if you then use ... counsel's race, gender, age, it's grounds for reversal." Fox argued the prosecutor’s references to opposing counsel’s characteristics and to the victims’ "culture" were not supported by the trial record and functioned to discredit defense impeachment of two witnesses. He said the comments were particularly harmful because they invoked stereotypes about the victims’ comprehension of the legal process.
The state, represented by Jason Reif, urged the court to view the contested language in context. Reif said the prosecutor’s reference to "culture" was meant to describe the family dynamic as perceived by the victims — control, financial dependence and fear within the household — and pointed to trial testimony the state says supports that picture. Reif told the court that the prosecution’s closing argument was responding to defense cross‑examination tactics (including hypothetical arithmetic used by defense counsel) and was aimed at explaining credibility to jurors rather than denigrating anyone for their race.
Bench members asked repeated questions about the proper standard and the record. Fox urged the appellate standard that asks whether an objective observer could view remarks as an appeal to stereotypes; he cited appellate precedent the defense says requires intervention when race is injected. Reif acknowledged the sensitivity of race references but argued the record did not show a repeated, derogatory appeal to race like that in cases the court has labeled prejudicial.
The judges pressed both sides on whether the prosecutor’s language referred to "Vietnamese culture" specifically or to the "culture" or dynamic of the particular family as described by witnesses. Counsel disputed whether the record supported a cultural stereotyping inference. The court also discussed the practical effect of objections at trial and whether trial counsel’s decision not to object bore on appellate review.
After oral argument and several clarifying exchanges, Acting Chief Judge Eric Price thanked counsel and paused the session for a shift change. The court did not announce a ruling during the session.
