State asks appealed case be dismissed

A case of a Bourbon County man who was convicted of indecent liberties with a child five years ago was dismissed Monday.

In December, the Kansas Supreme Court ordered a retrial for Derek Holt because a former Bourbon County District Court reporter failed to record "critical" parts of Holt's first trial.

During a hearing held Monday, Bourbon County Attorney Terri Johnson asked District Judge Mark Ward to dismiss the case.

"At this time the state informs the court that it cannot go forward with this case for the following reasons," Johnson said in her statement to the judge. "The alleged victim is a minor child and was 3 years old at the time of the allegations. The minor child was 6 when she testified at the jury trial in September 2009. The minor child and her parents have moved away from the area. The first trial was very traumatic for her. Her parents have decided that they do not wish to put the minor child through the trauma of another jury trial. I respect that decision. Therefore, the State cannot go forward and is asking the Court to dismiss this case. The victim's family is aware the State has no option but to take this action."

On Jan. 5, 2007, "the State filed a complaint alleging that Holt had committed rape and aggravated indecent liberties with a child. The State later amended the complaint to make the charges off-grid felonies: one count of rape under K.S.A. 21--3502(a)(2) and one count of aggravated indecent liberties with a child under K.S.A. 21--3504(a)(3)(A)," an online Supreme Court document states.

A jury found Holt guilty of aggravated indecent liberties with a child, but could not come to a conclusion on the rape charge.

Holt filed an appeal and it was later discovered that during the appellate process some testimony presented during the a hearing had not been recorded. That information included some motions.

The court's notations stated the only record available were the court reporter's hand written notes. The recording information used had either malfunctioned due to "mechanical and/or personal causes."

"The trial court held a hearing on Holt's motion to reconstruct the record, with the prosecuting attorney, Holt's trial attorney, and Holt's appellate attorney participating. The reconstruction hearing took place more than four years after the motions hearing in question, and neither the parties nor the trial judge had clear memories or extensive notes about what transpired at the hearing. Trial counsel for both parties were in general agreement that no additional witnesses were called and also agreed on the general nature of their arguments to the trial court at the motions hearing," the online court Supreme Courtdocument states.

The Supreeme Court document also states, "Adequate and effective appellate review is impossible without a trial transcript or an 'adequate substitute.' Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In the context of a criminal prosecution, due process requires a reasonably accurate and complete record of the trial proceeding in order to allow meaningful and effective appellate review."

Therefore, the Supreme Court opinion was to "reverse and remand" at the state's convenience.

A call to Holt's attorney was not returned by press time.