In Peterson, the state had agreed to not object to a dispositional departure motion and agreed to remain silent at sentencing unless there were misstatements of fact. But at sentencing, the proseuctor extensively cross-examined a defense expert and then made negative comments about her perception of Mr. Peterson's dishonesty with the expert. The judge ended up denying the departure motion and sent Mr. Peterson to prison. The KSC held that the prosecutor's cross-examination, while coming close to the "fine line," were proper acts to correct incomplete and inaccurate statements by the expert. But the KSC also held that the continuing comments by the prosecutor crossed the line:
Had the prosecutor been content with cross-examination, Peterson would leave this court empty-handed. But she was not. She polished off her closing comments to the court by saying Peterson's dishonesty to Barnett "should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography." This went too far. The comment was aimed directly to Peterson's likelihood of recidivism, the main issue before a sentencing judge considering a dispositional departure to probation, and it violated the State's plea agreement promise to stand silent.In Urista, the state recommended a 102-month sentence (as promised). But in her sentencing recommendations, the prosecutor went on to state extensive personal and negative observations about Mr. Urista and the judge ended up imposing a 204-month sentence. The KSA held that the comments undermined the plea agreement and were not in response to anything Mr. Urista did or said at sentencing:
But the comments at issue in this case do not constitute a mere factual description of the crimes or a summary of the victims' statements. Instead, the comments at issue here were an example of the prosecutor giving her personal opinion regarding Urista based upon her prior involvement with him, her review of the facts, and the victims' statements. In other words, the prosecutor not only engaged in providing a negative editorial, but a particularly grave summation regarding Urista based on these observations. Such comments can be viewed as effectively arguing against the parties' recommended sentence.In each case, the KSC ordered specific performance and remanded for resentencing before a different judge where the state fulfils its agreement.
Here is coverage of the Peterson case in the Lawrence Journal-World.