In United States v. Davis, 15 F.3d 1393, 1402–03 (7th Cir.1994), found that the prosecutor’s references to the defendant’s case as “hogwash,” “trash,” and “garbage” did not deprive the defendant of a fair trial. Would the same hold for the prosecutor saying that the defendant’s case was a “stupid story”? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Wilson, 2026 WL 2652126 (10th Cir. 2026).
In Wilson,
Mason Wilson had a baby, B.W., with Bailey Henson, who also had another child of her own. Henson was an employee at a credit union, but for two months after B.W.’s birth, Henson stayed home to care for B.W. along with Wilson. No issues arose in these two months. Then,…Henson returned to work, leaving Wilson to care for B.W. during the day.
Within the next three days, Henson noticed a bruise on B.W.’s cheek and a scratch on B.W.’s arm. She decided not to take B.W. to the hospital immediately because they already had a scheduled check-up on April 14. She asked Wilson about the cheek bruise, to which he initially responded that he was holding B.W. and B.W. “slung her head back and had hit her face on” Wilson’s chest and collarbone, and potentially his necklace….Wilson took B.W. to the pediatrician’s checkup along with his father-in-law. The pediatrician said they needed to go to the hospital. Ms. Henson met them at the pediatrician’s office and they drove to the hospital together. The pediatrician alerted the Oklahoma Department of Human Services (“DHS”).
Further examination revealed other extensive injuries. B.W. had ten broken bones, including five broken ribs, a proximal ulnar fracture in her left arm, and corner metaphyseal fractures on her right tibia, left tibia, and left femur. B.W. had injuries on both ears. B.W. had bruising on her face, arms, fingers, neck, buttocks, wrist, back, and stomach. B.W. had scratches on her body, including a scar on her forearm and a mark above her vagina. Henson again asked Wilson how these injuries occurred, and this time Wilson said that B.W. had fallen off the bed. Later, Wilson said he lightly “stepped on her.”…He also asked Henson to say she rolled over onto B.W. to “take heat off” him….
Both Wilson and Henson were interviewed by Dr. Christine Beeson, a specialist in child abuse and neglect. Henson told Dr. Beeson that B.W. had hit her face on Wilson’s collarbone and fallen off the bed, based on what Wilson had told her. Separately, Wilson told Dr. Beeson that B.W. had fallen off the bed. Dr. Beeson concluded that B.W.’s injuries were not consistent with the explanations provided. Rather, the several distinct bone breaks suggested multiple direct blows and forceful pulls or yanks in the previous five days. The bruising on each ear suggested multiple forceful hits because of the difficulty of bruising ears and the different planes of the injuries. The cheek bruise and abdominal bruise suggested forceful events because babies’ cheeks and stomachs do not bruise easily. A linear bruise on B.W.’s wrist suggested “a direct blow or a squeeze-type injury.” (ROA v.3 181.) The scratches suggested someone other than B.W. scratched her because two-month-olds cannot scratch their own neck. A subconjunctival hemorrhage below B.W.’s left eye also suggested a direct blow.
Wilson was also interviewed by James Poffel, a sergeant with the local police department, Abram Springer, a child welfare specialist at DHS, and Ashley Chavez, an FBI special agent. Wilson continued to state that the cheek bruise was the result of B.W. hitting her face on his collarbone, though he could not explain the other injuries.
At Wilson’s ensuing trial for child abuse and child neglect, “[i]n closing, the prosecution referred to Wilson’s argument that B.W.’s injuries were caused by falling off the bed, Wilson accidentally stepping on B.W., and B.W. hitting Wilson’s collarbone as ‘a stupid story.'” In finding that this was not reversible error, the Tenth Circuit noted that “[p]rosecutors should refrain from “[m]ethods designed to arouse prejudice, passion and use of invective….That said, colorful language used to describe a defendant’s argument is less concerning than colorful language used to describe defendants themselves.”
Because the comments in this case were more the latter than the former, the court concluded that “[w]hile we surely do not condone the use of such language by the prosecution, it was not so flagrant as to warrant reversal.”