Court says prosecutor's evidence didn't exist

8-30-2010 Kansas:

A Kansas appeals court has ordered a new trial for a convicted sexual predator, saying a prosecutor falsified evidence in a court proceeding.

"We can fathom no greater prejudice... than the use of nonexistent evidence by the State in the case against the respondent," noted the Kansas Court of Appeals in an opinion issued Friday.

"Simply put, attorneys are not allowed to make up evidence and use it to advance their cause."

The state's attorney in the case was Marc Bennett, a deputy district attorney in Sedgwick County who supervises the prosecution of child sex crimes.

The case involved Robert C. Ontiberos, who was convicted of attempted rape in 1983 and aggravated sexual battery in 2001.

When Ontiberos was about to be paroled, prosecutors sought to confine him to a state mental hospital under the Kansas Sexually Violent Predator Act. Sex offenders who suffer a mental abnormality or personality disorder that makes them likely to commit additional sex crimes can be held indefinitely for treatment under the 1994 law.

Ontiberos claimed that he did not receive a fair trial when a jury decided in 2008 to confine him to the Kansas Sexual Predator Treatment Program.

The appeals court ruled in his favor and ordered a new trial Friday.

While cross-examining Ontiberos during the trial, Bennett, serving as a special assistant attorney general, "improperly used statements that had not been admitted into evidence," the appeals court ruled.

Also, while cross-examining a clinical psychologist who had evaluated Ontiberos, Bennett asked the doctor "about a 2003 prison incident where Ontiberos fashioned a knife out of a pen and duct tape," the ruling says.

Ontiberos never received a disciplinary report involving a weapon, the court said. And Bennett admitted to the court that "he was unable to locate any reference" to the report that alleged Ontiberos used a knife in a fight.

Said the appeals court: "The State's use of a nonexistent Department of Corrections disciplinary finding, ostensibly painting Ontiberos as being violent because it involved a homemade prison shank, cannot be condoned in any fashion."

Sedgwick County District Attorney Nola Foulston said Bennett's reference to the weapon in court "was a misstatement, if anything" and should not mar his reputation or the case in general.

"I do not want it said that Marc Bennett somehow willfully, intentionally fabricated evidence, because that's not the case here at all," Foulston said.

"Marc is an extremely professional lawyer, and he's an extremely ethical lawyer. While reviewing thousands of pages in hundreds of documents, he may have mistakenly confused what was in the record.

"If that's the case, obviously that was wrong, it shouldn't have happened, and the court's point is well taken.... But Marc told the court about the mistake. He fell on his sword, so to speak, and I don't believe it's a malicious thing because there's not a malicious bone in Marc Bennett's body."

Foulston noted that several factors weighed into the appeals court's decision Friday, including "the passivity of defense counsel and his apparent lack of preparation," the ruling said.

Foulston said she plans to further review the case and the documents in question. The Kansas Attorney General's Office will decide whether to appeal the court's ruling. ..Source.. SUZANNE PEREZ TOBIAS