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Archive for Friday, February 8, 2013

Douglas County prosecutor’s comments lead court to vacate sentence

February 8, 2013

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— 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.

Comments

kimk 1 year, 5 months ago

Why is that Amy McGowan has not yet been fired? It is apparent that Amy has no respect for the law. If I was Charles Branson I would be embarrasses to have someone like Ms. McGowan as my employee. Come on Mr. Branson put on your Big Girl panties and do what needs to be done.

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rtwngr 1 year, 5 months ago

I once heard a law professor state, "He who lies best, wins."

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Bob Forer 1 year, 5 months ago

Apparently, Ms. McGowan did not learn from her past mistakes. She used the "truth" argument twice, and while the Court scolded her, they did not reverse the convictions. Looks like the third time around, the appellate court had had enough of her antics, and voted to reverse.

From this reader's perspective, Ms. McGowan is intellectually dishonest. Despite two separate warnings, she continued to use the same argument in a subsequent jury trial. There are a lot of dirty prosecutors out there. Apparently, there is one on Charles Branson's staff.

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Ian_Cummings 1 year, 5 months ago

The appeals came years after the trials where the prosecutor used that language. It's not so much that the prosecutor persisted despite warnings, but that the appeals came in succession long after she made those statements. Ian LJW

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Liberty275 1 year, 5 months ago

Can the judge presiding when the statements are made strike any statements that he finds violates due process? Do they have to wait for the defense to say "objection".

I won't make judgments regarding the prosecutor, but if they have a record of having cases thrown out over such violations I imagine all the defense attorneys know, and scrutinize every word McGowan say's to use at the appeal.

It doesn't seem like a prosecutor with such a record would be cost-effective.

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gccs14r 1 year, 5 months ago

From what I've read, she was no better over in Missouri. It'd be nice if someone would run against Branson (it's hard to vote him out when he runs unopposed) and clean house in the prosecutor's office. It's pretty clear that he is going to stick with McGowan no matter what.

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bearded_gnome 1 year, 5 months ago

^^Liberty wrote: It doesn't seem like a prosecutor with such a record would be cost-effective.

---problem is, she works for Branson. she is only a symptom.

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Nikonman 1 year, 5 months ago

The problem isn't Amy, it's the appeals judges. I have noticed they seem to side on the side of the defendent, the Creeps in other words. The objective of the trial should be to expose the truth. The Reasonable Doubt concept has outlived the intended purpose. Why are defense lawers afraid of the truth?

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BlackVelvet 1 year, 5 months ago

Why are defense lawyers afraid of the truth? Because the truth will (usually) not set their clients free?

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blindrabbit 1 year, 5 months ago

Several years ago I attended the Lawrence Police Citizens Academy, Ms. McGowan was also an attendee. Though most of the class was made up of ordinary citizens, several were employees of either the Lawrence Police, the Sheriff Department or the Office of the District Attorney. Only negative impression in the the class was the seemingly inattentive behavior of Ms. McGowan and another female employee of the D.A.'s Office. They had no interaction with rest of the class and played videogames on their handhelds during breaks. At the time, I felt these two were very immature, juvenile and unprofessional and could hardly understand how they could be a part of the D.A.'s Prosecurtorial Staff..

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kimk 1 year, 5 months ago

You can say what you want about the "creeps" of the world. They may very well be horrible people. That doesn't give Ms. McGowan the right to disregard the rules of law. Every time she decides to make statements that are not allowed, does not turn over evidence, etc... She cost taxpayers money. If she had a strong enough case she should not have to do these things to get a guilty verdict. Instead of properly preparing her case she takes the easy way out and lies/cheats to get results. Unfortunately for us, every time she makes that choice we the taxpayers are the ones picking up the tab. Perhaps if she had to pick up the tab to retry/ resentence these individuals she would think twice about her duties as a prosecutor.

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