Prosecutorial misconduct results in reversal of murder conviction

Korey Kaul won in State v. Cosby, No. 94,609 (Kan. Nov. 9, 2007), getting a new trial in a Douglas County first-degree premeditated murder prosecution. The main issue causing reversal was a Doyle violation and prosecutorial misconduct regarding the state's argument regarding premeditation:

However, we sent a clear warning in Pabst that prosecutors must avoid forms of the word "instant" or any synonym conveying that premeditation can develop instantaneously. We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous. See, e.g., State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (prosecutor's gesture of firing gun, accompanied by statement, "That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes," implied instantaneous premeditation; misconduct reversible); State v. Holmes, 272 Kan. 491, 497, 499-500, 33 P.3d 856 (2001) (prosecutor said "premeditation can occur in an instant. That's the law in the State of Kansas"; deliberate misstatement constituted reversible error). Given Pabst's warning, the prosecutor in this case should have known better. His misstatement of the law was outside the considerable latitude given him in discussing the evidence.

Here is the Lawrence Journal-World article reporting on the case. Here is a TV article reporting that retrial is set in this case.

[Update: this case was voted 2007 ADO case of the year.]