State high court orders new trial in sex case involving 8-year-old

By David Waite
Advertiser Courts Writer

Blaming prosecutorial misconduct, the Hawai'i Supreme Court has ordered a new trial for a Big Island man who was found guilty in September 1999 of sexual assault .

Although she was not named in the decision issued yesterday, the high court justices found that because Hawai'i County Deputy Prosecuting Attorney Linda Walton made a significant number of emotionally inflammatory statements about defendant Robert Eugene Genge during his trial, jurors became prejudiced against him.

Walton could not be reached to comment yesterday.

The Supreme Court justices found that no single statement made by Walton during the trial was in itself sufficient to prejudice the jury, but "the cumulative effect of numerous instances of misconduct may be so prejudicial so as to deny the defendant a fair trial."

Among other statements, Walton told the jury that only "a sick mind" could determine Genge's motivation for allegedly forcing an 8-year-old girl to have sex with him on several occasions,

Attorney Peter Esser, who handled Genge's appeal, said Big Island Circuit Judge Ronald Ibarra allowed Genge to remain free for the past two and a half years to appeal his conviction. Genge was sentenced in November 1999 to concurrent 20-year prison terms on four counts of first-degree sexual assault and a concurrent five-year term on one count of third-degree sexual assault.

"We agree that the cumulative effect of the prosecutorial misconduct denied Genge a fair trial," the Supreme Court justices wrote. "We do not believe, however, that the misconduct was so egregious as to impose a constitutional bar as to reprosecution," the justices said.

Reach David Waite at 525-8030 or at dwaite@honoluluadvertiser.com.