First, during deliberations, the jury asked a question. This is the district court's description and response:
We are in receipt of another question from the jury. And I will quote this into the record: Can we get clarification from Judge on Count 2 and Count 6?The KSC held that this response was error:
When I received that, I sent this message back with the bailiff: Can you be more specific on what you want? They came back then with this question: In comparison to Count 1, is Count 2 meaning the crime happened multiple times? In comparison to Count 5, is Count—they crossed it out, but I think they mean Count 6—meaning the crime happened multiple times?
The accurate answer to their question is, I believe: Yes, comma, it happened more than once, period. That's how I propose to answer both questions.
The more compelling argument is whether the judge improperly answered the jury question and as a result improperly injected himself into the jury deliberations. This question is reviewed under the more lenient abuse of discretion standard. But even under that standard, a judge should not answer a jury question by concluding that the crime happened on more than one occasion, especially when the defendant is charged with multiple counts of the crimes.The state conceded and the KSC also held that the prosecutor improperly argued suggesting that the jury tell the complaining witnesses that "they did the right thing."
Finally, the KSC reiterated its prior case law holding that a jury instruction indicating that a hung jury would be a burden on both sides was not a correct statement of law.
Although none of these errors separately required reversal, the KSC held that the cumulative effect of the errors did:
These errors occurred in close temporal proximity, playing off one another to deny Burns his right to a fair trial. The jury was first improperly instructed with the inaccurate and misleading language used in the Allen-type instruction. Immediately thereafter, the prosecutor improperly appealed to the emotions of the jurors, asking them to protect the child victims by supporting their version of the events. Finally, the judge compounded these errors by responding to a jury question by informing the jury that the abuse had happened more than once. The interrelationship of these errors significantly increases their effect. We conclude that there is a reasonable probability that the cumulative errors affected the verdict.As a result, Mr. Burns received a new trial.