Prosecutorial misconduct results in reversal of molestation conviction

The Kentucky Supreme Court unanimously threw out a child molestation conviction because the Campbell County trial prosecutor “flagrantly abused its authority in prosecuting the case” by making misleading statements to the jury during closing argument.

David Albert Soloway was sentenced to 45 years in prison after the 8-year-old daughter of his live-in girlfriend accused him of molesting her. He was convicted of two counts of first-degree sodomy, one count of sexual abuse, and one count of being a first-degree persistent-felony offender.

During closing arguments, the prosecution argued that Soloway’s refusal to speak to police showed he was guilty.

“Ladies and gentleman of the jury, an innocent man, when he hears he’s accused of child sex abuse, does he — what does he do?” the prosecutor argued to the jury. “He tells everybody he knows. He goes to law enforcement and says, ‘I didn’t do it. What do I need to do? Who do I need to talk to?’”

Rather than do that, argued the prosecutor, when Solway found out the police were looking for him, he went to a hotel and got drunk. And he then persisted in refusing to talk to police even after he turned himself in.

“Those are the actions of a guilty man that knows he should be going to jail,” the prosecutor claimed.

The Kentucky Supreme Court held that the closing argument involved misconduct that was “flagrant and palpable.”

“We consider an accused’s right against self-incrimination sacred,” the Court wrote. “And we take any assault on invocation of this right seriously. The prosecutor erred significantly in making these statements that misled the jury on the nature of Soloway’s silence, and deeply prejudiced his defense.”

The Court vacated Soloway’s convictions and sentence and remanded his case back to the trial court, where he is likely to be retried.