Mercer prosecutor's error 'harmless,' Maynard says

By Steve Korris | Jul 24, 2008


CHARLESTON – Former Mercer County prosecutor William Sadler didn't prejudice jurors by referring to a sexual assault suspect's failure to testify, according to Chief Justice Spike Maynard of the West Virginia Supreme Court of Appeals.

Maynard dissented June 27 from an opinion granting Mindy Keesecker a new trial.

"I do not believe that the prosecutor made impermissible references to the appellant's failure to testify," Maynard wrote. "Furthermore, even if the prosecutor's comments were improper, the error was clearly harmless."

In closing arguments at Keesecker's trial in 2006, Sadler kept bringing up the lack of testimony that would contradict his case.

Jurors 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.

Circuit Judge John Frazier sentenced her to three consecutive terms of one to five years in the state penitentiary.

She moved for a new trial, Frazier denied it, and she appealed.

She 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."

Four Justices agreed April 25, finding that the law serves as further protection of the constitutional right against self-incrimination.

"In three distinct statements, the prosecutor specifically referred to the absence of any individual appearing to offer contrary evidence," the majority wrote.

According to Maynard's dissent, Sadler merely pointed out that no one contradicted a statement Keesecker gave to police.

"The record shows that the jury was instructed on the appellant's right not to testify and that they could not draw an inference of guilt from the fact that she did not take the stand," Maynard wrote.

Jurors found Keesecker not guilty of five counts, he wrote.

"It seems to me that if the prosecutor's comments actually had the impact that the majority attributes to them, then the appellant would have been convicted on all counts," he wrote.

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