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Prosecutor misconduct leads to reversal

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The Indiana Court of Appeals reversed a defendant's conviction of intimidation because several acts of misconduct constituted fundamental error. The appellate court also ruled the man could be retried on the charge.

In Marlow J. Lainhart v. State of Indiana, No. 24A01-0904-CR-184, Marlow Lainhart appealed his Class A misdemeanor conviction of intimidation, in which he was found guilty of communicating a threat to another person with intent to place the victim in fear of retaliation for a prior lawful act.

The charge stemmed from an incident in October 2007 in which Lainhart saw former friend Derek Durham talking on the side of the road to three women he knew while they were in their car. Lainhart called his father Kenny, and as the women were driving, Kenny drove his car into the back of their car. Threats were allegedly made toward the three women by Lainhart and his father. Two of the women went to the police and filed written statements about the incident.

On appeal, Lainhart challenged the prosecutor's actions and statements during voir dire and at trial. Even though he failed to object to any of the alleged misconduct at his trial, the appellate court reviewed the matter for fundamental error.

The prosecutor improperly distinguished the roles of the defense and prosecution in criminal cases during voir dire, the appellate court found. The prosecutor's statements to jurors exalted his own responsibility as a truth-seeker while degrading the role of defense counsel, wrote Judge Nancy Vaidik.

The prosecutor's reference to the possible punishment Lainhart could face if convicted was also improper, as well as the prosecutor's commentary during cross-examination and closing argument on Lainhart's failure to call defense witnesses. It's improper for a prosecutor to suggest a defendant must bear the burden of proof in a criminal matter, wrote the judge.

Finally, the Court of Appeals concluded the prosecutor's comments during jury selection and closing arguments pertaining to police officer credibility constituted improper indoctrination, vouching, and commentary on the justness of the cause.

Each of these improper comments or actions on their own may not result in fundamental error, but the cumulative effect of the misconduct made a fair trial impossible, the judges ruled.

The Court of Appeals reversed Lainhart's conviction, but found there was sufficient evidence for him to be retried if the state desired to do so. To clear up an issue that may arise on remand, the appellate court ruled the trial court erred by not issuing a unanimity instruction on the charge Lainhart faced. He was charged with unlawfully knowingly or intentionally communicating a threat to another person: Ruth Schreier, Jaime Baker, and/or Amy Robertson, with the intent that the other person be placed in fear of retaliation for a prior lawful act. The trial court should have instructed jurors that they had to reach a unanimous verdict as to which crime, if any, Lainhart committed, wrote the judge.

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  1. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

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