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Improper reference to homosexuality is prosecutorial misconduct [NOT FINAL]

By Randall Hodgkinson

Rachel Pickering won in State v. Bloomquist, No. 95,995 (Kan. App. Feb. 29, 2008), getting a new trial in a Anderson County aggravated indecent liberties/criminal sodomy prosecution involving 78-counts. The COA reversed for cumulative error, but primarily focused on improper argument regarding Mr. Bloomquist's sexual orientation:

Beginning with his opening statement to the jury, continuing through the presentation of evidence, and culminating in the closing arguments, the prosecutor framed the State's case around the allegation that William was a homosexual. . . . The State does not minimize its trial strategy, but asserts that "in a case in which a defendant is charged with aggravated indecent liberties with a child victim who is of the same sex as the defendant, the [S]tate is required to prove, beyond a reasonable doubt, that the defendant is a homosexual."

. . . .

The obvious unstated premise of the State's argument is that lewd fondling or touching between an adult and a 12-year-old child of the same sex is a "homosexual act." Linguistically, a "homosexual act" might be defined as a sexual act between any two persons of the same sex; however, that is not how the State uses the term. The State maintains that if William took actions to satisfy sexual desires for adult males, and did not take actions indicating sexual desires for adult females, then any lewd fondling or touching of B.D. would be more likely to satisfy his sexual desires. The State, in other words, assumes that a sexual desire for children is among those desires which define a homosexual orientation.

The COA reviewed cases from other states and easily concluded that the state's logic was seriously flawed:

We conclude, therefore, that it was unreasonable for the State to assume that a sexual desire for children is among those desires which define a homosexual orientation.

Nothing in this record suggests that William's adult relationships with Brandon, Carla, or any woman he may have dated were evidence of the charges against him. Given the "prejudicial character" of homosexuality, the prosecutor's conduct in this case was analogous to prosecutorial appeals to passion, prejudice, and fear which have been so long rejected by Kansas courts. Having carefully considered the record, we hold the prosecutor's conduct was improper.

Turning to the plain error analysis, we are convinced the prosecutor's misconduct was gross and flagrant. The references to homosexuality were not an "isolated statement." As detailed earlier, the prosecutor's opening statement, questions of witnesses, presentation of evidence, and closing argument were focused on proof of William's sexual orientation. Given the prejudicial nature of homosexuality, we conclude William has shown the evidence at issue and the prosecutor's comments upon it prejudiced the jury against him.

The COA reviewed the record and held that the evidence was not overwhelming and that, therefore, reversal was required. It bolstered the reversal by its holding that other opinion testimony was probably inadmissible and, in any case, did not have a sufficient foundation.

Sort of hard to believe this sort of trial goes on today, but then again maybe not.

Full post as published by Kansas Defenders on February 29, 2008 (boomark / email).