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Archive for Saturday, August 11, 2012

Man convicted of child molestation gets new trial

August 11, 2012

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A Douglas County judge ruled Friday that a 25-year-old Lawrence man should get a new trial after a jury convicted him in 2010 of fondling a 7-year-old girl.

District Judge Peggy Kittel, who presided over the trial of Jose Fernandez-Torres, granted a motion by defense attorney Carl Folsom to give Fernandez-Torres a new trial based on errors with the testimony of the girl’s mother, an outdated jury instruction and a prosecutor’s improper statement during closing arguments.

The judge said each error on its own would not warrant a new trial.

“The cumulative effect of these errors, all relating to the jury’s responsibilities and duty in this case, leads this court to believe that (Fernandez-Torres) did not receive a fair trial,” Kittel wrote.

Jurors in December 2010 convicted Fernandez-Torres of aggravated indecent liberties with a child after prosecutors accused him of molesting the daughter of his girlfriend the night of Sept. 2, 2010, at a northern Lawrence apartment. He was accused of putting his hand in the girl’s shorts while she was in bed, and the girl told her mother, who confronted Fernandez-Torres.

He had claimed the touching was innocent because he had tried to move the child so she would not fall out of bed. The girl’s mother wrote a letter in 2011 — eight months after the trial — saying the touching allegation could have arisen out of a misunderstanding.

In her ruling ordering a new trial, Kittel said the mother later testified she felt under pressure at the trial and was not asked the correct questions. The woman had said she was angry at Fernandez-Torres at the time of the incident because he had communicated with other women.

The judge also found jurors were given an outdated instruction about the burden of proof that they should presume the defendant not guilty “until” convinced from the evidence, but instead they should have been instructed to make the not guilty presumption “unless” they were convinced from the evidence of his guilt.

And Kittel found a comment in closing arguments by prosecutor Amy McGowan, a chief assistant district attorney, was improper when she argued the girl “in this courtroom” has the truth to protect her “and if you believe (her), then that follows you right over to beyond a reasonable doubt.”

Kittel said the statement “gives an impression to the jury that their duty in this case is to protect this 7-year-old child from abuse, rather than determine if the evidence supports a guilty verdict.”

Kittel ordered the parties to appear in court Tuesday for a status conference and bond hearing.

“We will review the court’s decision and determine the appropriate course of action,” Douglas County District Attorney Charles Branson said Friday.

Fernandez-Torres has been an inmate at the Douglas County Jail since the verdict, although Kittel had not yet sentenced him. He was facing 25 years to life in prison on the 2010 conviction that was overturned.

— Reporter George Diepenbrock can be reached at 832-7144. Follow him at Twitter.com/gdiepenbrock.

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