A Kansas Court of Appeals panel has ordered that Robert Grey, a 38-year-old Lawrence man, should get a new trial for his conviction in the 1997 rape of a Kansas University student.
The three-judge panel found:
• The state failed to give Grey’s attorney additions made to an expert’s previously disclosed report.
• The state did not notify District Judge Peggy Kittel or the defense that the victim could identify Grey as her rapist after earlier representing she could not.
• Prosecutor Amy McGowan, a chief assistant district attorney, made a comment in her closing argument not supported by evidence. She said Grey knew the color of the alleged victim’s boyfriend’s car, but Grey actually testified he did not know.
“Considering all of these actions together, we hold such misconduct to be gross and flagrant, and it deprived Grey of a fair trial,” Judge Stephen D. Hill wrote in the court’s opinion.
The judges did say they found no evidence McGowan deliberately lied, but the ruling said new information that wasn’t disclosed from a scientist’s examination of the sexual assault kit was prejudicial. It influenced Grey’s defense that he had consensual sex with the alleged victim the night before, the opinion said.
A Douglas County jury at the 2009 trial convicted Grey of the rape of the 20-year-old female KU student after prosecutors accused Grey of kidnapping her in her car at gunpoint from the Naismith Hall parking lot on a night in May 1997, driving her to a secluded area near the old tennis courts at Lawrence High School and raping her.
The case went cold. Grey was not arrested and charged until 10 years later after investigators used an FBI database to link a fingerprint from the car to Grey. Police also obtained Grey’s DNA to use as evidence.
Grey is at the El Dorado Correctional Facility serving a 26-year prison sentence, but now the appellate court says he should receive a new trial.
Douglas County District Attorney Charles Branson said prosecutors would either retry the case or ask the Kansas Supreme Court to review the appellate opinion.
“Although we agree there were errors at trial, we believe the trial court’s decision that the errors were harmless was appropriate,” Branson said. “I am confident Mr. Grey will ultimately serve his sentence for his crime.”
Hill and judges Karen Arnold-Burger and Steve Leben issued Friday’s opinion. Lydia Krebs, of the Kansas Appellate Defender Office, represented Grey in the appeal.