January 30th. The Kansas Supreme Court has issued its opinion in State v. Brinklow (No. 96,231). In a unanimous opinion, written by Justice Johnson, the Court vacated Earl Brinklow’s conviction for six counts of indecent liberties with a child. The case was remanded for a new trial in the light of several irregularities at trial which the Court said combined to deny Brinklow a fair hearing. Note: Former Chief Justice Kay McFarland (who was still a member of the Court at the time of argument) did not participate in the case. Her place was taken by Judge Cristel Marquardt of the Court of Appeals.
In April-May of 2001 Brinklow allegedly molested his 11-year-old stepdaughter, A.C. When A.C. reported this to her mother a disturbance ensued and police were called to the house. A.C. told the police what happened. Brinklow maintained that it was a lie concocted by the girl to get him out of the house. The next day A.C. withdrew her allegation, saying it was made up. Brinklow and his wife separated. In 2005 A.C. attempted to kill herself. When asked by a psychiatrist why she had done so, she reported her original claim about Brinklow. Brinklow was arrested and charged with six counts of indecent liberties with a child.
At trial, Brinklow sought to have various witnesses sequestered since his defense hinged in part on claiming that the story was concocted. The judge asked the prosecutor if he objected to this and the prosecutor did. Brinklow’s motion was denied. He appeals this decision as well as several claims of prosecutorial misconduct.
The Court ruled for Brinklow that the trial court had abused its discretion when deciding Brinklow’s sequestration motion. The State has no veto of such motions, they are left up to the trial court. By seemingly relying on the prosecutor’s consent the judge committed an error of law. The Court further notes that the mother was asked questions about her daughter’s testimony that took the form of leading her into agreeing with what her daughter had said with no elaboration. Since Brinklow’s sequestration motion was an attempt to prevent this from happening, the Court ruled that he suffered prejudice from the error.
The Court ruled against most of Brinklow’s allegations of prosecutorial misconduct finding that they fell within the latitude left to prosecutors at trial. However it found fault with a section of the summing up in which the prosecutor told jurors that “sometimes you just know” when someone is guilty. The Court held that this could have led jurors to use a weaker standard of proof than ‘beyond a reasonable doubt’. The Court noted that a previous case where a prosecutor was not faulted for using the phrase “‘You just have to intuitively know when you see it” was different because that prosecutor was referring to what the definition of ‘beyond a reasonable doubt’ was. In this case there was no such linkage. The Court also found fault with one statement which vouched for the credibility of a prosecution witness and one which it held was an appeal to the jurors emotions. Both these errors were fleeting and the Court said that by themselves they would not be sufficient for Brinklow’s appeal to prevail. Combined with the others, especially the sequestration motion error, the cumulative errors were enough.