Sexual assault in the fourth degree and causing risk of injury to a child.
The defendant was helping the victim’s mother with her children by watching them and acting as a neutral party with the father, whom she was divorcing and with whom she had a tenuous relationship. The eight-year-old victim disclosed to a babysitter that the defendant put his hand in her underwear while he was at her home and responsible for her care. After her parents consulted a therapist, the incident was reported to police and a forensic interview was conducted with the victim.
At trial, the main theory of defense was that the victim lied about the abuse and was acting out on a “repressed desire for the defendant, to whom she had grown quite attached” amidst turmoil at home. Defense counsel asserted during closing argument that the victim’s testimony was inconsistent and revealed a motive to lie. He asked the jury to “use her words to doubt what she said.” He asked them to acquit the defendant “not because we condone the abuse of…children…but because justice and the law [require] it.” The prosecution responded by arguing that the defense was indeed asking them to condone child abuse by acquitting him on grounds that the victim was eight years old and unreliable, there were no eyewitnesses to the abuse, and other people were in the home. Among other points, she questioned whether the defense argument was about the truth, or was a "big cloud of smoke and mirrors." The jury found the defendant guilty.
On appeal, the defendant argued that both the prosecutor’s repeated assertions that defense counsel was asking the jury to condone child abuse and characterization of their theory as lying was prosecutorial impropriety. The State Supreme Court agreed, reasoning as follows:
As an agent of the state and officer of the court the prosecution may not address facts or present issues that the jury has no right to consider, including improper appeals to jurors’ emotions by attacking the defendant’s character or inciting sympathy for the victim. The prosecutor improperly implied to the jury, without factual basis, that the defense was unworthy of consideration, and improperly degraded the defense counsel’s arguments. The Court rejected the claim that the defense invited the prosecutor's statements with its own unfair closing argument and ruled that curative instructions were not sufficient to offset prejudice to the defendant because they were not given at the time of the remarks, and that the state’s case was “not particularly strong" because there was no physical evidence or eyewitness testimony other than the victim.
Submitted By: Katherine Ramsey -- Law Student