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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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