DE- High court overturns rape conviction

12-14-2008 Delaware:

The Delaware Supreme Court overturned the rape conviction of a 39-year-old man saying the prosecutor was wrong to suggest to jurors that only the guilty are taken to trial.

Deputy Attorney General Donald R. Roberts' comments jeopardized the fairness and integrity of the trial, the Supreme Court said in its eight-page opinion issued last week.

Roberts' statement that prosecutors don't take "falsely reported cases to trial," removed defendant Kevin A. Hardy's presumption of innocence, Supreme Court Chief Justice Myron T. Steele wrote.

"The Delaware Constitution recognizes the presumption of innocence as a fundamental right," Steele said. "For the prosecutor to imply to the jury that he, and the state, prosecutes guilty people only, deprives Hardy of that fundamental right."

Steele went on to say it was the prosecutor's duty to represent the state, which includes the defendant, on trial: "Therefore, it is his duty to see that the State's case is presented with earnestness and vigor, but it is equally his duty to see that justice be done by giving the defendant a fair and impartial trial."

Jules Epstein, associate professor at Widener University School of Law, said the comments shows a lack of training a prosecutor gets in his or her office.

"Prosecutors don't determine if something is false, juries do," Epstein said, adding it is wrong for prosecutors to "vouch" for their cases. "Vouching is prohibited. The prosecutor is never allowed to say 'I personally, or we the government institutionally, believe this witness, disbelieve that witness or know this fact to be true.

"Those are long-standing no, nos."

It is not uncommon to see this sort of prosecutorial misconduct in emotional-charged cases, such as sex offenses, Epstein said.

In 1987, Clarence Moore was convicted of rape and robbery by a New Jersey jury. In his appeal, Moore argued that the prosecutor made improper arguments when he told jurors: "The last thing I have to say is that if you don't believe [the victim] and you think she's lying, then you've probably perpetrated a worse assault on her."

The U.S. Court of Appeals for the Third Circuit overturned the conviction in 2001 saying the prosecutor's comments were "outrageous" and "calculated to divert the jury from its sworn duty to focus on the evidence."

"They're very emotional cases," Epstein said, suggesting they are often credibility cases in which the "prosecutors feel strongly about the complaintent as a victim and emotions take over."

According to court records, Hardy was met at a vacant Wilmington house on Dec. 27, 2006, by a woman he previously had lived with. The two had had sex before and did heroin together. On that day, the two were doing drugs when they began to fight.

When Hardy told the woman to take off her clothes, she resisted and they continued fighting until they fell asleep. They woke up the next day and resumed fighting. This is when he raped her, according to court documents.

Hardy was arrested the following month and convicted in February of first-degree rape, aggravated menacing and unlawful imprisonment in the first degree.

The Delaware Attorney General's Office said it respects the Supreme Court's decision and the case would be given to another attorney when it comes up for trial.
Roberts, was put on leave without pay from the Attorney General's Office in October, after he was charged with drinking and driving. The state car he was in veered off the road, striking two mailboxes before stopping in front of a Bear driveway.

An empty bottle of Canadian Mist whiskey was found on the passenger-side floorboard and police said Roberts' had a blood alcohol level of 0.33 -- more than four times the state's legal level of 0.08, according to court documents. ..News Source.. by Esteban Parra