Topeka Closing arguments by Douglas County prosecutor Amy McGowan were the focus of an appeal Tuesday 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. He was 22 at the time.
Before the Kansas Supreme Court on Tuesday, 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.
In closing arguments, prosecutors are generally confined to making comments on the evidence that was presented during the trial.
Not referring to McGowan by name, Justice Dan Biles said the prosecutor's remarks in closing arguments have been the subject of appeals before.
"We have already found it to be misconduct," Biles said. "This phraseology of the truth is this particular prosecutor's canned approach in dealing with juries."
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.
The court also upheld a murder conviction in the 2005 shooting death of a retired jeweler near Lecompton. In that case, the defendant's attorney said McGowan made improperly prejudicial comments when telling the jury "the truth" would give the victim a verdict against the defendant.
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. He said he didn't believe McGowan's statement had any impact on the ultimate verdict.
The court took the appeal under consideration.
Ochs was convicted in January 2010 of having sex with the 11-year-old on Feb. 6, 2009, at her North Lawrence home. Ochs was baby-sitting the girl and her siblings while her parents were out of town.