WEST VIRGINIA RECORD

CHARLESTON -- The state Supreme Court has ordered a new trial for a convicted child molester after ruling the prosecutor in the case made too many religious references in the first trial.

In the opinion issued June 16, the court said Cabell County resident Matthew Bolen, who was sentenced in 2002 to 15 years in prison for allegedly molesting a young neighbor, will get a new trial.

Bolen's attorneys appealed the conviction after arguing that Cabell County assistant prosecutor Joseph Martorella talked too much about the victim's religion and his Christian beliefs in the 2002 trial.

Court documents show that during the trial, Martorella repeatedly referred to the victim's religion as evidence of why he came forward with his accusations more than a decade after the molestation allegedly occurred.

Martorella told jurors the victim came forward because he was trying "to get himself straight with God."

"He is not telling the truth because he wants to come in here and tell 12 people of a perverse act performed on his 10 years ago," Martorella said in closing statements. "He is telling it because it's God's commandment and the consequences of that brings it here."

Documents show Martorella later told jurors, "Your duty is to find out in your mind, as a body to deliberate, is (the victim) telling the truth or is (he) a liar who is going to go to hell? And I tell you, ladies and gentlemen of the jury, he is carrying his cross every day and he will for the rest of his life"

The Supreme Court said the state went too far in allowing Martorella to rely on religion.

Justice Spike Maynard dissented, arguing that Bolen's constitutional rights were not violated and his conviction should not be overturned – even if a mistake was made in the original trial.

"Because of the (court) majority's unnecessary decision, a child sex offender is now free and the state must bear the time and expense of retrying him," Maynard wrote in his dissent.

Bolen, now 30, was accused of molesting his neighbor in 1992 and 1993. At that time, Bolen was 16 and living in Huntington. His neighbor was a 7-year-old boy. The boys were friends and spent a lot of time at each other's homes.

In 2000, the victim, who then was 14, told some of his fellow church youth group members that he had been molested by Bolen. He then told his parents Bolen repeatedly had forced him to engage in oral sex. Bolen was convicted as an adult on two counts of first-degree sexual assault in May 2002.

In Bolen's appeal, attorneys said there was no physical evidence or witnesses to back up the alleged victim's story. They claim it was Martorella's repeated religious references that resulted in the conviction.

The court was critical of how much Martorella mentioned religion in opening and closing statements and decided it wasn't important in establishing why the victim came forward.

"We believe ... the remarks clearly had the potential to mislead the jury into thinking (the victim) couldn't possibly be untruthful," the court wrote.

The new trial date for Bolen has not yet been determined.

West Virginia Supreme Court of Appeals case number: 32887