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Kansas court grants new trial in sex-abuse case

TOPEKA | A south-central Kansas man will get a new trial on charges of fondling his wife's daughter after the state's highest court overturned his 2005 conviction.

The Kansas Supreme Court ruled Friday that Earl W. Brinklow's first trial was rendered unfair by a prosecutor's improper statements to the jury and the judge's failure to keep some witnesses apart.

Brinklow, of Medicine Lodge, was convicted in Barber County District Court on six counts of aggravated indecent liberties with a child.

Authorities said he entered the room of his wife's 11-year-old daughter several times over a six-week period in 2001. Brinklow was charged in 2005 after the girl disclosed the alleged abuse after a suicide attempt.

Brinklow appealed, arguing prosecutorial misconduct and errors by the trial judge, but the Kansas Court of Appeals ruled that the errors did not prejudice his right to a fair trial.

In the ruling published Friday, the Kansas Supreme Court ruled that while none of the errors alone would have warranted a new trial, the cumulative effect was prejudicial.

The Supreme Court said District Judge Robert Schmisseur's denial of a defense request to sequester witnesses affected their testimony and possibly affected the trial's outcome.

For instance, the mother was in the courtroom when the girl testified and colored her testimony as a result, the court ruled.

"The record reveals that the State elicited testimony from the mother which was directly tailored to the testimony of the victim. We cannot declare that the defendant did not suffer any prejudice from the trial court's error," Justice Lee Johnson wrote in the court's majority opinion.

The court also said closing statements by Barber County Attorney Richard Raleigh misrepresented the standard of proof required for a conviction.

Raleigh's repeated assertions to the jury that "sometimes you just know" compelled the jury to issue a verdict "based upon what must have happened, rather than on what the evidence proved," Johnson wrote.

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