WEST VIRGINIA RECORD

CHARLESTON – Former Mercer County prosecutor William Sadler didn't tell jurors that sexual assault defendant Mindy Keesecker kept silence during her trial, but he implied it and for that the West Virginia Supreme Court of Appeals has granted Keesecker a new trial.

In an April 25 opinion, four of five Justices reversed Circuit Judge John Frazier, who denied Keesecker's motion for a new trial.

Jurors in 2006 found Keesecker guilty of carrying on sexual relations with a 15-year-old boy in 2005, while she worked as a church youth counselor. She was 34.

Frazier said when he denied the motion for a new trial that, "It is a reasonably close case and the Supreme Court may in fact see it differently."

Frazier since has retired from the bench, and Sadler took his place. Sadler likely won't hear the new trial.

Justices Joseph Albright, Brent Benjamin, Robin Davis and Larry Starcher relied on state law providing that failure to testify shall create no presumption against a defendant "nor be the subject of any comment before the court or jury by anyone."

That law, they wrote, serves as further protection of the constitutional right against self-incrimination.

They quoted a 1905 decision that "the law, having brought the prisoner into court against his will, did not permit his silence to be treated or used as evidence against him."

In closing arguments, Sadler did not say that Keesecker failed to testify but he kept bringing up the lack of testimony that would contradict his case.

"In three distinct statements, the prosecutor specifically referred to the absence of any individual appearing to offer contrary evidence, drawing attention to the fact that Appellant had not appeared to testify," the Justices wrote.

They held that Keesecker's silence carried heightened sensitivity with the jury since only she could have contradicted a confession that the state introduced against her.

"We cannot conclude beyond a reasonable doubt that the improper comment did not contribute to the guilty verdict," they wrote.

Chief Justice Spike Maynard dissented.

At oral arguments March 11, assistant attorney general Robert Goldberg said the boy probably considered it the luckiest day of his life.

Maynard said, "Everybody would be up in arms if the defendant was a male."

The boy's mother grew suspicious and asked the pastor to talk to Keesecker.

"Although the Appellant initially agreed to curtail the relationship," the Justices wrote, "it allegedly continued in earnest."

Keesecker bought the boy a cell phone and his mother found text messages on it that prompted her to call police.

Keesecker's brother approached State Trooper Chuck Maynard, a family friend not involved in the investigation. Trooper Maynard said she should turn herself in.

She took the advice. She waived her rights and signed a confession.

As prosecutor, Sadler charged her with six counts of third-degree sexual assault.

Upon conviction, Frazier sentenced her to three consecutive terms of one year to five years in state penitentiary.

Her attorney, Mark McMillian of Charleston, appealed on several grounds besides the references to Keesecker's failure to testify.

He argued that police unlawfully obtained recordings from the boy's mother, Frazier should have suppressed the confession, and Sadler improperly injected the Bible into closing arguments.

He argued that Frazier committed an error when he found a substantial risk that Keesecker would commit another crime if he placed her on probation.

By deciding the case only on references in closing arguments to her failure to testify, the Justices left it up to the Circuit Court to resolve the other issues at a new trial.

They specifically declined, however, to ban Bible references in closing arguments.

At oral arguments, Maynard said someone quoted the Bible in half the closing arguments he had heard.

He said a prosecutor once urged jurors to crucify a defendant.