Because of errors by a judge and prosecutor, a Wichita man should get a new trial on whether he fondled an 8-year-old girl, the Kansas Supreme Court ruled Friday.
Luther Kemble, 36, was sentenced to 25 years-to-life in prison in May 2008 after a jury found him guilty of improperly touching the daughter of his cousin's girlfriend.
But the state's high court said a former Sedgwick County district judge interfered with the girl's testimony and a former prosecutor made inappropriate statements during closing arguments,
In Friday's opinion, Justice Lee Johnson acknowledged that on their own, each mistake by the judge or prosecutor might not have affected the outcome of the trial.
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"However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial," Johnson wrote in the unanimous ruling.
The court said the evidence against Kemble wasn't overwhelming.
On the stand, the girl changed what she'd told her mother and police, saying she couldn't remember what happened, or denying Kemble inappropriately touched her.
Judge Rebecca Pilshaw intervened, the court said, commenting on the girl's testimony. The court concluded that Pilshaw indicated the girl was lying when she said she couldn't remember, or gave an answer favorable to the defense.
Johnson wrote, "The judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution."
Pilshaw left the bench after being defeated for re-election in 2008. Now in private practice as a defense attorney, Pilshaw didn't comment on the ruling Friday.
The court also said prosecutor Christine Ladner overstepped her bounds in her closing arguments.
Kemble said he was so intoxicated he couldn't remember what happened. Voluntary intoxication is a legal defense, the court said. The girl's family said he'd been drinking, and police noticed the smell of alcohol on him when they talked to him that same night.
But Ladner inappropriately challenged Kemble's credibility in closing arguments, saying he hadn't told anyone he was drunk until trial. Ladner now works as an assistant attorney general in Topeka.
The Kansas court cited a popular U.S. Supreme Court decision known as Miranda, which warns defendants they have the right to remain silent and anything they say may be used against them in court.
"The corollary is that if a duly warned person does exercise the right to remain silent, then anything that the person did not say, i.e., the person's silence, cannot and will not be used against them in a court of law," Johnson wrote.
Kim Parker, the county's chief deputy district attorney, said Miranda's right to silence used to only apply to what they said to police.
"But the courts have changed their opinions on that, in this case to apply to his family," Parker said. "That doesn't excuse the prosecutor's error but reminds us we have to be more vigilant about those changes."
Parker said the office would review the case before deciding whether Kemble will face a second trial.