Friday, April 20, 2018

Prosecutorial misconduct requires new trial

Nancy Ogle, Stacey L. Schlimmer, and Adam D. Stolte won in State v. Chandler, No. 108,635 (Kan. April 6, 2018), obtaining a new trial in a Shawnee County first-degree premeditated murder prosecution. The prosecution stemmed from a cold case investigation of the shooting death of Ms. Chandler's ex-husband and his new wife. The KSC detailed the weakness of the state's case in several respects as it related to the claims made on appeal, including inconsistent statements about Ms. Chandler's whereabouts and failure to prove payment for gas needed to travel to the crime scene.

On appeal, the KSC applied the "rather low bar" for sufficiency and found that a rational fact-finder could have found Ms. Chandler guilty based on her inconsistent statements and statements made during a jailhouse phone call. But the KSC went on to find blatant prosecutorial error requiring a new trial. Although the KSC found several errors, it reasoned that "only the one conceded error was enough to reverse these convictions--the prosecutor falsely claiming [ex-husband] got a protection from abuse order against Chandler from the Douglas County District Court." The KSC noted that, while all agree there was no protection from abuse order, the prosecutor explicitly told the jury the opposite:

These misstatements conveyed serious adverse impressions to the jury. They improperly declared that a judge independently reviewed Chandler's behavior and concluded she was dangerous enough to justify a court order for [ex-husband's] protection. They also told the jury Chandler was so out of control that she violated that court order, i.e., accuses her of wrongdoing that would constitute "prior bad acts" if presented as evidence. See K.S.A. 2017 Supp. 60-455 (subject to specific exceptions, evidence a person committed a crime or civil wrong on a specified occasion is inadmissible as basis to infer  the person committed another crime or civil wrong on another specified occasion). None of this was true. 

In its final supplemental brief, the State acknowledges "the prosecutor misspoke when she informed the jury that [ex-husband] had obtained a 'protection from abuse, a court order.'" But that concession, while laudable, was a long time coming—even though we would expect the State never to shield something so obviously indefensible. 

. . . .

Even if the prosecutor was meaning to reference the initial ex parte order, her statement would remain seriously misleading because she did not mention the order was routine, temporary, or directed to both parties. These are critical distinctions. Instead, the prosecutor made it appear Chandler was the order's target and her behavior the reason for the judge to enter it—none of which would have been true, even if the prosecutor got mixed up. And the State's speculation about possible confusion ignores the specific "protection from abuse" references made in questioning the detective and the timeline presented, i.e., one year after [ex-husband] filed for divorce. 

This court cannot understand why so much energy had to be expended by all concerned to get us to the State's belated admission about something that never existed in the trial record. 

The KSC then went on to note that, while there might be enough evidence in light of a sufficiency claim, there was no direct evidence of guilt and that "the error intruded into the jury's decision on paramount elements to the State's theory. The prosecutor traded on an untrue statement about a protection from abuse order." The KSC noted that, even though it had recently changed its vocabulary to describe "prosecutorial error" for most types of improper argument that might result in an unfair trial, the can still be "misconduct" for erroneous acts done with a level of culpability that exceeds mere negligence. 

We have those in Chandler's case. The prosecution's lapses compel the harsher prosecutorial misconduct label. The errors outlined in this decision are not "minor aberrations in a prolonged trial."

As a result, the KSC reversed and remanded for a new trial.