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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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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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