A Tacoma man convicted of child rape and molestation two years ago did not receive a fair trial because a Pierce County deputy prosecutor committed misconduct during closing arguments, the Washington Court of Appeals has ruled.
It’s at least the seventh reversal of a Pierce County felony case because of prosecutorial misconduct since 2013.
An analysis by The News Tribune earlier this year found the Pierce County Prosecutor’s Office led the state in such reversals in decisions released between January 2013 and April 2015.
The latest reversal came Tuesday, when a three-judge panel from Division II decided Alfred James Thierry Jr. was denied a fair trial because of deputy prosecutor Kara Sanchez improperly inflamed the jury during her closing argument.
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Thierry is entitled to a new trial, the panel said.
Kit Proctor, who leads Prosecutor Mark Lindquist’s appeals unit, disagreed with the decision.
“We are confident the jury based its verdict on the evidence and the instructions,” Proctor said in an email. “While the deputy prosecutor could have been more careful in her phrasing, the trial judge who heard the case did not think the argument was improper and thought the case was well argued.”
Thierry, now 51, went to trial on four counts of first-degree child rape and two counts of first-degree child molestation. Prosecutors alleged he’d repeatedly had sex with a young male relative.
The boy, then 8, reported the alleged abuse to his aunt, who was raising him.
Thierry denied ever abusing the boy, arguing the child might have made up the story because he was unhappy with Thierry.
A jury convicted Thierry on all counts, and Superior Court Judge Stanley Rumbaugh sentenced him to 26 years to life in prison.
In a unanimous decision written by Judge Thomas Bjorgen and signed by Judges Jill Johanson and Lisa Sutton, the appellate panel ruled Sanchez inappropriately appealed to the “passion and prejudice” of the jury.
She did that, the judges said, by suggesting other children might be in danger if the boy Thierry was accused of abusing was not believed when he testified at the trial.
If that occurred, Sanchez argued more than once, “then the state may as well just give up prosecuting these cases, and the law might as well say that the word of a child is not enough,” court records show.
That was improper, the appellate panel ruled.
We agree with Thierry that the deputy prosecutor’s argument on (the alleged victim’s) credibility was improper and that it had a substantial likelihood of affecting the verdict.
Judge Thomas Bjorgen
“The message, in other words, was that the jury needed to convict Thierry in order to allow reliance on the testimony of victims of child sex abuse and to protect future victims of such abuse,” Bjorgen wrote.
“This hyperbole invited the jury to decide the case on an emotional basis, relying on threatened impact on other cases, or society in general, rather than on the merits of the state’s case.”
The Pierce County Prosecutor’s Office argued during the appeal that Sanchez did not explicitly ask the jury to convict Thierry for that reason. It also contended she properly told jurors they should decide the case based on the court’s instructions and the evidence presented.
The appellate panel rejected those arguments.
“… that the prosecutor did not explicitly call on the jury to send a message or to protect children does not make the argument any less improper,” Bjorgen wrote. “The implication is clear enough: Were the jury to agree with defense counsel, they would put other children in danger.”
The panel also decided Sanchez misrepresented defense attorney Jane Pierson’s closing argument, the result of which was “to unfairly undermine Thierry’s defense.”
The misconduct was serious enough to warrant a new trial, the panel decided.
“The outcome of the case depended entirely on whether the jury chose to believe (the boy’s) accusations or Thierry’s denial,” Bjorgen wrote. “The prosecutor’s remarks created a substantial risk that the jury decided to credit (the boy’s) testimony for improper reasons.”