BY ARTHUR S. LEONARD | There's an old prosecution trick in cases charging men with sexual molestation of boys - play on a jury's ignorance and presumed homophobia to secure a conviction by yelling "gay, gay, gay" at every opportunity.
This trick didn't impress the Court of Appeals of Kansas, which on February 29 reversed the conviction of William James Blomquist because of the trial court's failure to reject the speculative and argumentative evidence about the defendant's alleged sexual orientation and its "relation" to the crimes charged.
Blomquist was charged with having his way sexually with a mentally retarded 12-year-old boy, the son of a family friend. The only "direct" evidence consisted of statements the boy, B.D., made to his mother and his rather vague testimony at trial, as well as statements he made under suggestive questioning by a police investigator.
According to Judge Michael B. Buser's opinion, B.D. frequently stayed overnight at the home Sharon Blomquist shared with her 31-year-old unemployed son, William. The younger Blomquist had befriended B.D. and his mother, Carla, and Carla testified that B.D. enjoyed spending time with William because the two of them worked on cars, built models, and watched movies. But Carla soon became suspicious and sat B.D. down, asking him if anyone had ever touched him or if there had been sexual contact between him and Blomquist. The youth became upset, denied any such touching, but later told his mother "that he and William had engaged in lewd fondling and oral and anal sodomy."
Blomquist was charged with a total of 78 counts, based on 26 visits by B.D. in late 2004, on each of which he was charged with having committed aggravated indecent liberties with a child, aggravated criminal sodomy, and aggravated indecent solicitation of a child.
The prosecution case was based on repeated allegations that Blomquist was gay. Blomquist, who denied being gay, did not testify in his defense.
The prosecutor introduced the issue of Blomquist's alleged homosexuality from the opening statement to the jury through the introduction of testimony about Sharon's diaries, which revealed that her son had confided that he had a sexual relationship with another man, Brandon, and then was upset when Brandon had sex with somebody else. The prosecution did not produce Brandon as a witness.
The evidence also included a video recording of a police officer interrogating Blomquist, repeatedly trying to get him to say he was gay, without directly posing the question. Blomquist consistently denied he was gay. The dates on the alleged misconduct were based on Sharon's journal entries that indicated B.D. had stayed over those nights. There was no specific testimony that anything particular happened on any of the dates.
The prosecution argued that because Blomquist was charged with molesting a boy, his sexual orientation was relevant to establishing motive and to bolstering the credibility of B.D.'s testimony. The trial judge evidently bought it lock, stock, and barrel, but the appellate court did not, reversing the conviction and the sentence of 400 months.
Judge Buser rejected the state's assertion that "lewd fondling or touching between an adult and a 12-year-old child of the same sex is a 'homosexual act.'"
"The State," Buser wrote, "assumes that a sexual desire for children is among those desires which define a homosexual orientation," but he found that argument flawed. Citing court decisions from half a dozen other states, Buser concluded that evidence of homosexuality is not relevant to establish pedophilia, and is prejudicial to the defendant.
"It was unreasonable for the State to assume that a sexual desire for children is among those desires which define a homosexual orientation," Buser wrote. "Nothing in this record suggests that William's adult relationships with Brandon, Carla, or any woman he may have dated were evidence of the charges against him. Given the 'prejudicial character' of homosexuality, the prosecutor's conduct in this case was analogous to prosecutorial appeals to passion, prejudice, and fear which have been so long rejected by Kansas courts. Having carefully considered the record, we hold the prosecutor's conduct was improper."
The State argued that Blomquist had put his sexuality at issue by making no attempt to deny prosecution assertions through defense witnesses.
"We do not agree, based on this record, that William placed his sexual orientation at issue," Buser wrote. "Rather, it was the prosecutor who within moments of the trial's commencement labeled William a homosexual and proceeded to develop the State's case-in-chief around William's purported sexual orientation... If that were not the State's assumption, nothing would be left of its trial strategy but a pure appeal to prejudice. We would not hesitate to find ill will in such a situation."
Without this tainted evidence, the State's case, relying solely on B.D.'s vague and indecisive testimony, fell apart.
"The testimony was not direct and overwhelming," Buser wrote. "William does not challenge the sufficiency of the evidence, but even so an inference was required. The inference, that William committed each of the acts charged during every overnight stay shown in Sharon's journals, was susceptible to the prosecutor's misconduct. We cannot say that the error was harmless."
Blomquist also challenged the state's expert testimony about homosexuality and pedophilia, which the appeals court found to be an error that reinforced the prosecution's improper reliance on arguing that the defendant was gay.