The State of Washington, Respondent v. Kenneth John Thorgerson, Petitioner

Summary

The Washington Supreme Court, sitting en banc, affirmed the Court of Appeals and upheld Kenneth Thorgerson's four child-molestation convictions against claims of prosecutorial misconduct. The court held that the prosecutor's references to the victim's consistent out-of-court statements to non-testifying persons and to the hearsay rules were not reversible because the defense itself opened the door by eliciting consistency testimony, and that although calling the defense 'sleight of hand' was ill-intentioned misconduct impugning defense counsel, it lacked a substantial likelihood of affecting the verdict and a curative instruction would have cured it. The court also rejected the burden-shifting, cumulative-error, due-process, and ineffective-assistance claims under the substantial-likelihood-of-prejudice standard and the waiver rule for unobjected-to remarks. Justice Chambers, joined by Justices Pro Tem Alexander, Owens, and Sanders, dissented, concluding that the vouching and counsel-impugning remarks were cumulatively so flagrant and ill-intentioned that no curative instruction could remedy the prejudice and that the convictions should be reversed.