The National Law Journal
September 09, 2010
A Kansas man convicted of child molestation will get a new trial because of misconduct by the judge and the prosecutor. The Kansas Supreme Court ruled on Sept. 3 that they each crossed the line during the trial of Luther Kemble, who in 2008 was sentenced to 25 years to life for fondling an 8-year-old girl.
The court found that Sedgwick County, Kan., District Court Judge Rebecca Pilshaw improperly questioned and encouraged the girl while she was testifying. The court also found that a Sedgwick County prosecutor violated Kemble's right to remain silent in statements made during closing arguments.
The court determined that the misconduct, considered separately, did not necessarily justify a new trial. However, the cumulative effect created a prejudicial error that the evidence against Kemble could not overcome.
Kemble, 36, was convicted after a jury found that he had touched the girl's chest and buttocks while he was a guest in her mother's home. The child was the daughter of his cousin's girlfriend. The girl initially accused Kemble of the act but gave conflicting testimony at trial.
While the child was testifying, the judge repeatedly told her that if she was saying that she didn't remember details, when she in fact did, she was lying. Among other statements to the child during trial, the judge said that she was a "good girl" after she gave testimony unfavorable to Kemble.
The justices, in an opinion by Justice Lee Johnson, said that they could "empathize with the frustration a trial judge might experience with a child witness who will not testify consistently." Nevertheless, they reasoned, "the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution."
Also at issue was a statement that the prosecutor made during closing arguments about Kemble's claim that he was too intoxicated to form the intent to commit the crime. The prosecutor said Kemble asserted that defense for the first time at trial, and never before. Such a statement, Kemble argued, was an improper comment about his post-Miranda silence and violated his right to remain silent. The court agreed. "The state may not use that silence against a defendant at trial."
The attorney representing Kemble was Carl Folsom of the Kansas Appellate Defender Office. He was not immediately available for comment. A spokesman for the district attorney's office said that attorneys there were reviewing the decision.