Topeka Comments in criminal proceedings by Douglas County prosecutor Amy McGowan have again been questioned by the Kansas Supreme Court.
This time, McGowan's statements led the court on Friday to vacate the 52-month prison sentence of a Douglas County man who pleaded no contest to attempted sexual exploitation of a child. The court sent the case back to district court.
The 2009 sentence of Robert Peterson was vacated because McGowan made comments during sentencing that violated a plea agreement with Peterson, the state Supreme Court ruled in a unanimous decision.
"The defendant's sentence must be vacated and the case remanded to a different judge of the district court for a new sentencing or plea withdrawal," Justice Carol Beier wrote.
Statements made by McGowan in court have been at the center of several appeals before the court.
Last month before the court, closing arguments by McGowan were the focus of an appeal by a man convicted of raping an 11-year-old girl.
Eric Ochs was sentenced to life in prison with an eligibility of parole after 25 years in the 2009 rape.
Ochs' attorney, Joanna Labastida with the Kansas Appellate Defender Office, argued that the closing statement in the trial by McGowan constituted misconduct. In that statement, McGowan referred to the girl and said she was protected "and that protection she had was the truth."
Labastida argued that statement amounted to testimony by the prosecutor about the girl's testimony, and it also encouraged the jury to convict Ochs to protect the community.
Patrick Hurley, an assistant district attorney with the Douglas County District Attorney's Office, said that while the prosecutor's comment in the Ochs' case was "inartful," there was physical evidence tying Ochs to the crime.
"She wasn't trying to pull a fast one," Hurley said of McGowan, who could not be reached for comment. He said he didn't believe McGowan's statement had any impact on the ultimate verdict.
In another case, the court found error in McGowan's closing arguments in the trial of a man convicted of second-degree murder in the 2006 shooting after a concert at the Granada, 1020 Massachusetts St. Still, the court upheld the conviction in that case.
And in the appeal of Allen Dale Smith, who was sentenced to life in prison for the 2005 slaying of Clarence David Boose near Lecompton, Smith's attorney argued that McGowan made improper comments that prejudiced the jury.
McGowan had told the jury that "the truth" would give the victim a verdict against the defendant.
Douglas County District Attorney Charles Branson conceded to the court that a comment to the jury to search for the truth instead of focusing solely on the evidence "is now frowned upon by the court." But, he said, that has become clear in court decisions made after Smith's trial.
The court upheld the conviction of Smith but said that McGowan's closing arguments did constitute misconduct.
In the Peterson case, authorities said they found digital photographs of children engaged in sexual acts on Peterson's work computer.
As part of a plea agreement, the prosecution agreed not to object to Peterson's motion for a sentencing departure for probation. Prosecutors also agreed to remain silent at sentencing unless there were misstatements of facts.
During a sentencing hearing, clinical psychologist Robert Barnett said Peterson was a good candidate for probation. He said that Peterson told him that the images of child pornography were from pop-up Internet windows after Peterson did a search for information on a child's murder.
On cross-examination McGowan showed that Peterson had not told Barnett information about the charges and about a 1994 sexual battery conviction.
Beier said it was appropriate for McGowan to question Barnett about his knowledge of the facts of the case and Peterson's prior conviction.
But Beier said McGowan then went too far. "Had the prosecutor been content with cross-examination, Peterson would leave this court empty-handed," Beier wrote. "But she has not. She polished off her closing arguments to the court by saying Peterson's dishonesty to Barnett `should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography.' "
Beier concluded, "This went too far. The comment was aimed directly to Peterson's likelihood of recidivism, the main issue before a sentencing judge considering a dispositional departure to probation, and it violated the State's plea agreement promise to stand silent."
According to the Kansas Department of Corrections, Peterson, now 68, was released on parole in November.
Branson said Friday, "I am disappointed with the Supreme Court decision in this case. The Court found that defense counsel created factual misstatements that were relied upon by defense’s expert minimizing the defendant’s actions. The Prosecutor’s comments were directly related to those misstatements and simply an effort to correct the misinformation presented to the Judge. Peterson has served his full sentence."
Branson confirmed Friday that as part of a routine shuffling of duties in the district attorney's office, McGowan is still the prosecutor handling adult sex crimes, but that another prosecutor is now handling juvenile sex crimes.
Ian Cummings contributed to this story.