Convicted child molester gets new trial

A convicted child molester serving a life sentence will get a new trial because a court reporter failed to record critical parts of his first trial, the state Supreme Court has ruled.

The justices ordered the retrial in the case of Derek John Holt, who was convicted of indecent liberties with a child in Bourbon County in southeast Kansas five years ago. He is serving a sentence of life without parole possibility for 25 years under “Jessica’s Law,” 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 he has been practicing criminal law for more than 33 years and can’t remember personally seeing a case where the trial record was so spotty it had to be retried.

“Something of this nature is almost unheard of,” he said.

Ney said it’s not unusual for bits of testimony to be missed in a transcript. But Holt’s was missing all of the lawyers’ arguments and judge’s ruling on key issues in the case – particularly the denial of a defense request to have the alleged victim undergo a psychological evaluation.

Holt’s defense had requested the evaluation because of inconsistencies in the girl’s statements to different people and his concern that her testimony may have either been coached or part of a dream. The girl was three years old when the crime is alleged to have occurred and five when it went to trial.

The Supreme Court justices ruled Friday that Holt’s request was critical to his defense strategy. But they didn’t have enough transcript to decide whether the judge erred or not in denying the request.

Attempts to reconstruct the ruling and arguments failed because the trial participants didn’t remember enough of what was said, the court opinion 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.”

Ney said the court reporter used a voice-recording device to prepare the transcript, repeating what was said in court into the machine to be typed up later.

Holt’s case transcript had this note, in capital letters, from the reporter:

"I have no record of the court's orders for the motions that were filed by state and defense [and] what the court granted other than my personal handwritten notes. Inadvertently there was a malfunction, again, with the recording equipment due to mechanical and/or personal causes ...”

Efforts by the court to track down the reporter failed. She no longer works for the state and may have left Kansas, records said.

Lacking adequate transcripts to consider Holt’s appeal motions, the justices decided the only option left was another trial.

“We are aware of the challenges and burdens of retrying any case, and we acknowledge the stress that a second trial can place on a young victim and the difficulty in bringing witnesses back so long after the events in question,” the court opinion said. “The constitutional right to due process and its vital protections, especially in a case involving serious allegations and severe penalties, dictate this result.”

Ney agreed.

“A new trial may be a burden,” he said. “A life sentence on my client is certainly a burden.”