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Cumulative judicial and prosecutorial misconduct requires new trial in Jessica's Law case

Carl Folsom won in State v. Kemble, No. 100,824 (Kan. Sept. 3, 2010), obtaining a new trial in a Sedgwick County aggravated indecent liberties prosecution. The KSC reversed due to a combination of judicial miscondcut and prosecutorial misconduct.

The KSC reviewed the transcript in detail to evaluate the judge's interaction with a child witness. The court held that the judge at points was correctly controlling her courtroom, but eventually she egregiously crossed the line and was improperly bolstering a witness:

One can empathize with the frustration a trial judge might experience with a child witness who will not testify consistently with his or her prior statements, especially if the judge might perceive that the prosecutor's soft-spoken demeanor is impeding the search for the truth and precluding the just punishment of a perpetrator of the most despicable conduct in our society. Nevertheless, the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution. The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts. If any of those lines are crossed, the system that has held this nation in good stead for two and a quarter centuries has been compromised. Here, the trial judge crossed the line, not only refusing to follow the better practice of addressing the problem with counsel outside the jury's presence, but failing to exercise the appropriate caution in questioning a witness and making comments in front of the jury.

Defense counsel also objected to a statement by the prosecutor during closing argument that "He [Mr. Kimble] never said I was too drunk to remember until today." The KSC held that this was a Doyle violation:

The State attempts to characterize the closing argument statement as only referring to the "defendant's failure to mention his alleged intoxication when confronted by the victim's family in the immediate aftermath of the incident." Obviously, if defendant was asserting a voluntary intoxication defense, he would be saying that he was too drunk to form a specific intent to commit the crime. Yet, the State would expect the defendant to have sufficient cognitive ability to affirmatively assert, almost contemporaneously with the criminal act, that defendant was relying on the defense of voluntary intoxication, i.e., he was too drunk to know what he was doing, but not too drunk to assert his affirmative legal defenses. The argument is, at best, counterintuitive. Moreover, one of the family members was apparently able to discern Kemble's intoxication without the benefit of his declaration that he was intoxicated.

More importantly, the State's argument does not comport with the actual statement used in closing argument. The statement was, "He never said I was too drunk to remember until today." (Emphasis added.) "Today" was the day of trial; not the immediate aftermath of the incident. The State's attempt to rewrite the statement on appeal is unavailing. The prosecutor committed a Doyle violation, which is clearly outside the permissible bounds of fair comment under the first step of our analysis.

The KSC noted that Doyle is a long established rule that every prosecutor should know. It also noted that the violation occurred in the prosecutor's PowerPoint presentation, showing planning and not a spur-of-the-moment error.

In summary, the KSC held that the combination of the errors deprived Mr. Kimble of a fair trial:

Conceivably, reasonable people might differ in their assessment of whether either the judicial misconduct or the prosecutorial misconduct in this case, when viewed in isolation, requires reversal, i.e., whether the respective individual error was harmless. However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial. As noted above, that denial cannot be cured by declaring the evidence against the defendant to be overwhelming. Accordingly, we reverse Kemble's conviction and remand for a new trial.

Second win for Carl on Jessica's Law cases this summer.

Full post as published by Kansas Defenders on September 03, 2010 (boomark / email).