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Prosecutor’s ‘continual misconduct’ warrants new molestation trial

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A man’s child molesting convictions were vacated and he was granted a new trial by the Indiana Court of Appeals, which found prosecutorial misconduct amounting to fundamental error. It’s the second reversal and remand attributable to the same prosecutor, the court noted.

Brandon Brummett was 23 when he was convicted of molesting two cousins who were 16 and 12 years old at the time of the alleged incidents, some of which took place in West Virginia, where the girls’ father – Brummett’s uncle – was imprisoned. The girls’ mother encouraged them to spend time with relatives on their father’s side, the opinions states.

Brummett was arrested after one of the girls told a friend that he had molested her, and that friend and the girl told the girl’s mother.

In Brandon Brummett v. State of Indiana, 49A02-1304-CR-378, Judge John Baker wrote that a Marion County prosecutor was belligerent toward Brummett as he testified on the stand, that the prosecutor offered improper vouching and commentary on the justness of the cause, and that the proseuctor impugned the integrity of defense counsel and demeaned its role.

Brummett preserved none of the issues for appeal, but he succeeded in proving both prosecutorial misconduct and fundamental error, Baker wrote.

“The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial,” Baker wrote for the panel.

Reversing the conviction on those grounds, the panel waded into Brummett’s other objections regarding the evidence against him. He objected to the admission of evidence of uncharged acts and also asked the court to find the testimony of one of the girls incredibly dubious. She alleged he fondled her vagina as the family played a game at a table during a visit to West Virginia.

“While we agree with Brummett that (the) testimony might stretch the limits of credulity, this is not the test for incredible dubiosity. K.A.’s testimony does not run so counter to human experience that no reasonable person could believe it,” Baker wrote. “Therefore, this Court will not invade the province of the jury by reweighing the evidence. Thus, this argument must fail.”

While evidence of an uncharged act was improperly admitted, Baker wrote, it didn’t rise to fundamental error. In offering guidance for retrial, the court noted that because Brummett didn’t object contemporaneously to the admission of evidence regarding alleged uncharged out-of-state incidents, there was no fundamental error, though the evidence may have been improperly admitted.

“We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan,” the panel observed in a footnote.

In that case, similar prosecutorial misconduct resulted in reversal and remand for new trial on Bruce Ryan’s convictions of two counts of Class C felony sexual misconduct with a minor. Justices granted transfer in that case last November, but the docket shows no further activity.


 
 

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  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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