SPOKANE — A retrial was ordered Tuesday when a 2018 child molestation conviction was overturned due to prosecutorial misconduct.
James William Cook Sr. was convicted at trial in Douglas County Superior Court of two counts of first-degree child molestation and three counts of second-degree child molestation. The Palisades man was sentenced to 14.5 years in prison.
The state Court of Appeals in Spokane reversed the conviction after Cook, 71, appealed on grounds of prosecutorial misconduct by Deputy Prosecutor N. Smith Hagopian and insufficient evidence. The appeal on insufficient evidence was denied.
“We have recounted several instances of prosecutorial misconduct, some quite serious,” Judge Robert Lawrence-Berrey wrote. “It is an understatement to say that Cook did not receive a fair trial.”
The Douglas County Prosecutor’s Office did not respond to a call for comment Tuesday.
In the court opinion, Lawrence-Berrey wrote that Hagopian erred by asking witnesses, specifically a detective and a child forensic examiner, to vouch for the victims.
“It is misconduct for the prosecutor to ask a witness whether he or she believes another witness is telling the truth or lying … such an opinion invades the province of the jury,” Lawrence-Berry wrote.
Hagopian also asked Cook to explain why his accusers would lie to authorities.
“Cook, faced with such a question, could only speculate,” Lawrence-Berrey wrote. “The question was improper and asking it was contrary to the prosecutor’s duty to seek convictions based only on probative evidence.”
Lawrence-Berrey continued, explaining that he believed Hagopian implied to the jury that Cook’s silence following his arrest was a sign of guilt.
“The State implicitly assured Cook that his silence would not be used to infer guilt and the State reneged on its assurance,” Lawrence-Berrey wrote. “This was fundamentally unfair and constituted a deprivation of due process.”
Lastly, Lawrence-Berrey wrote that Hagopian committed misconduct in his closing statement.
First, when he said he believed a victim when she said she delayed disclosing the abuse because she was afraid.
“It is improper vouching where a prosecutor expresses a personal belief in the credibility of a witness,” Lawrence-Berrey wrote.
Second, when Hagopian told the jury that defense attorneys when interviewing victims are not seeking the truth, but evidence to help their client.
“By saying this, the prosecutor said to the jury it should not believe defense counsel because his ethics do not constrain him to the truth,” Lawrence-Berrey wrote. “This back-handed compliment is as insulting as describing opposing counsel’s argument as a “crock” or as “bogus.”
The appeals court ordered a new trial.