TOPEKA, Kan. (AP) -- The Kansas Supreme Court has ordered a retrial for a man serving a life sentence for abusing a child.
The Supreme Court ruled Friday that Derek John Holt, who was convicted of indecent liberties with a child in Bourbon County in southeast Kansas five years ago, will get the new trial because a court reporter failed to record critical parts of his first trial, The Wichita Eagle reported (http://bit.ly/1idvTQi ).
Holt is serving a sentence of life without the possibility of parole for 25 years under a 2006 Kansas statute that toughened penalties for sex offenders whose victims are children.
Richard Ney, the Wichita defense lawyer who argued Holt's appeal, said that in more than three decades practicing criminal law he can't remember seeing a case where the trial record was so spotty that it had to be retried.
"Something of this nature is almost unheard of," he said.
Ney said while it's not unusual for bits of testimony to be missed in a transcript, Holt's was missing all of the lawyers' arguments and judge's ruling on key issues in the case, including the denial of a defense request to have the alleged victim undergo a psychological evaluation.
Holt's defense sought the evaluation because of inconsistencies in the girl's statements and concern that her testimony may have either been coached or part of a dream. The girl was 3 when the crime is alleged to have occurred and 5 when it went to trial.
The Supreme Court ruled that Holt's request was critical to the defense. But the justices said they didn't have enough transcript to decide if the judge erred in denying the request. Efforts by the court to track down the reporter failed, records said.
"We simply cannot ascertain what the basis of the trial court's ruling was, and we therefore cannot ascertain whether the trial court abused its discretion," Justice Eric Rosen wrote for the unanimous court.
"This is not the fault of the trial court or the parties; it is the consequence of a rare breakdown in the transcription process coupled with the absence of any meaningful recollection of the motion arguments and, more importantly, the basis of the motion's resolution."
Information from: The Wichita (Kan.) Eagle, http://www.kansas.com