Criminal Trial and Prosecutorial Misconduct: GAINVES v. COM. (COA 7/25/2008)

GAINES V. COM.
CRIMINAL:  Prosecutorial misconduct
2006-CA-000861
PUBLISHED: AFFIRMING IN PART, VACATING IN PART AND REMANDING
PANEL: THOMOPSON PRESIDING; CAPTERTON CONCURS AND LAMBERT DISSENTS BUT FILES
SEP. OP.
COUNTY: PENDLETON
DATE RENDERED: 7/25/2008

CA affirmed Gaines’ drug-related convictions but remanded for resentencing following prosecutor’s "send a message" closing argument.  Utilizing palpable error review (i.e. there was no objection at trial), CA concluded that the prosecutor’s “send a message” remarks in this case violated Gaines’ constitutional right to a fair trial. Kentucky prosecutors have known for over half a century that these types of statements have been highly criticized by the appellate courts of this Commonwealth. The practical effect of such a statement is to incite jurors to assume the responsibility of curing the community’s problems by rendering a severe sentence rather than focusing on Gaines’ just punishment based on the specific facts of his case. This fact is most poignant here because the jury recommended the maximum sentence for each of Gaines’ crimes.

Digested by Scott C. Byrd
www.olginandbyrd.com