Facts:  Petitioner Kenneth Thorgerson was convicted of child molestation in the Superior Court for Snohomish County.  Thorgerson subsequently appealed his conviction, asserting that the prosecutor committed misconduct when he made reference in his opening and closing statements to out of court statements made by the alleged victim that were consistent with her testimony in an effort to bolster her credibility, attempted in his closing statement to shift the burden of proof to the defense, and impugned defense counsel.  The Washington Court of Appeals affirmed Thorgerson’s conviction.  Thorgerson appealed this decision to the Supreme Court of Washington.

Question(s):  Did the prosecution commit misconduct in its opening and closing statements?

If so, was the error harmless?

Conclusion:  Chief Justice Madsen’s opinion for the Court affirmed the Washington Court of Appeals, concluding that although the prosecutor’s references to out of court statements made by the alleged victim improperly bolstered her credibility and although the prosecutor also improperly attempted to impugn defense counsel, it is unlikely that either instance of misconduct altered the outcome of the proceeding.  The Court also held that the prosecutor’s comment upon the failure of the defense to impeach the alleged victim’s testimony did not improperly attempt to shift the burden of proof to the defense.

Docket No. 83357-5 (from Court of Appeals Division I Case No. 62071-1)

Petitioner: Kenneth Thorgerson

(Counsel: Lenell Rae Nussbaum)

Respondent: State of Washington

(Counsel: Seth Aaron Fine and Thomas Marshall Curtis)

Briefs:

Argument: Thursday, September 23, 2010 2:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, August 25th, 2011

Prevailing Party: State of Washington (Respondent)

Vote: 5-4

Citation: Pending

Madsen
(Majority)

Johnson

Alexander

Sanders

Chambers
(Dissent)

Owens

Fairhurst

Johnson

Stephens

Opinion

Dissent