KENTUCKY PROSECUTORIAL MISCONDUCT

A study of criminal appeals from 1970 to the present revealed 121 Kentucky cases in which the defendant alleged prosecutorial error or misconduct. In 37, judges ruled a prosecutor’s conduct prejudiced the defendant and would have reversed or remanded the conviction, sentence or indictment. In nine, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Of the 37 cases in which judges found the prosecutor’s conduct prejudicial, 34 involved alleged improper trial arguments or tactics and three involved the prosecution withholding exculpatory evidence from the defense. Of those cases in which a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant, seven involved improper trial arguments and two involved withholding evidence from the defense.

Henry County Commonwealth Attorney Bruce Hamilton was responsible for at least two of the 121 cases. In one, Hamilton’s conduct prompted the court to reverse a conviction. In another, the court ruled his conduct was harmless error and upheld a conviction, but a dissenting judge would have reversed.

In June 1988, the state Supreme Court reversed Paramore Sandborn’s first-degree murder conviction because Hamilton, among other things, intentionally destroyed the tape-recorded statements of four witnesses, three of whom testified for the state. In its opinion, the court does not name Hamilton but discusses what it calls a “laundry list of misconduct.”

Before trial, the defense requested the tapes. When the court asked Hamilton to produce the tapes, he said they were “erased in anticipation of the Court’s rulings…I get what I want off of them, make my notes, and erase them.”

Hamilton later defended his actions in response to Sanborn’s appeal to the Supreme Court, saying that he had “the right to destroy such tapes.”

“This claim is specious, and his tactics unforgivable,” wrote the state Supreme Court. “Three of those with tape-recorded interviews testified as witnesses called by the commonwealth.”

A second issue on appeal was the transcription of Sanborn’s recorded statement to a police officer and the commonwealth attorney. The tape was at times difficult to understand, and Hamilton transcribed it for the jurors. The defense counsel disagreed with Hamilton’s interpretation on approximately 25 instances.

“The Commonwealth Attorney freely conceded that portions of the tape were difficult to understand,” wrote the court. “He gave this as the reason for furnishing his version of the tape for the jurors’ use, when it should have been the reason for refusing such use.”

Another issue on appeal was Hamilton’s use of and the court’s approval of using “investigative hearsay.” At trial, officers and investigators testified about what people they had interviewed told them.

“Prosecutors, should, once and for all, abandon the term ‘investigative hearsay’ as a misnomer, an oxymoron,” wrote the court. “The problem is the information was inadmissible because it was hearsay.”

In its decision reversing Sanborn’s conviction the court also discussed how Hamilton made numerous improper arguments, both inside and outside the presence of the jury.

In front of the jury, Hamilton accused defense counsel of “that trick they pulled with that psychiatrist.” He also accused defense counsel of lying six times and called Sanborn a “black dog of the night,” a “monster” and a “wolf.”

“This record is replete with instances where the prosecutor misstated evidence, and misstated the law with regard to both guilt and to punishment,” wrote the court.

The court noted that perhaps the most serious prejudice occurred when Hamilton told the jury they had a “duty” to pronounce the death penalty because of the aggravating circumstances of the case. He also told jurors that their imposition of the death penalty would only be a recommendation.

Supreme Court Justice Donald C. Wintersheimer dissented from the majority. He would have upheld Sanborn’s conviction and death sentence.

“The majority decision is a tragic triumph of the so-called system over substance,” he wrote. “Certainly, any accused must be afforded procedural protections, but in a context of reality and not second-hand fantasy.”

In September 1989, the state Supreme Court upheld Charles West’s murder conviction despite Hamilton’s “troubling” trial arguments.

At trial, Hamilton told the jury that “innocent people don’t need lawyers” and that “justice will prevail.”

“He delivered a barrage of vilification, misleading innuendo, and outright deception,” wrote Justice Joseph E. Lambert. “However, upon every objection by defense counsel, the trial court sustained the objection and upon request admonished the jury.”

Justice Robert Stephens dissented. He wrote that with the “purely circumstantial nature” of the state’s case and the “relative weakness of the evidence,” Hamilton’s conduct prejudiced West.

“I believe that without the purposeful conduct of the prosecutor, a different result would have been reached,” Stephens wrote. He characterized Hamilton’s trial arguments as “deceptive” and “vilifying” and would have reversed West’s conviction.  ¶ 1:06 AM