Background
Francis Henry Kempker was charged with three counts of first-degree rape involving three women. A jury convicted him of two counts but could not reach a verdict on the third. The circuit court declared a mistrial on that count, severed it, and sentenced Kempker to consecutive life terms for the two convictions.
Before trial, Kempker sought relief based on an assistant prosecutor’s earlier employment at a law firm that had represented him in a separate 2017 drug case. The assistant prosecutor had appeared once to obtain a continuance while Kempker was absent. Years later, she initially worked on the rape prosecution, including signing charging documents and a search-warrant application, but withdrew and was screened from the case after learning of her prior appearance. Kempker also sought to present testimony from a witness who had seen one victim at his business voluntarily but could not place the victim there during April 2016, when the charged rape occurred.
The Court’s Holding
The Court of Appeals held that the circuit court did not abuse its discretion by ultimately refusing to disqualify the entire Cole County Prosecutor’s Office. Kempker had not preserved his argument under Rule 4-1.9(a), and he failed to establish a conflict under Rule 4-1.9(b) because the record did not show that the assistant prosecutor acquired protected information during her isolated appearance in the 2017 case. Even assuming an individual conflict, it would not extend to the entire office under the professional-conduct rules or the appearance-of-impropriety test. The assistant prosecutor was screened promptly, had no further involvement, and neither acquired nor disclosed confidential information.
The court also rejected Kempker’s claim that he was entitled to an evidentiary hearing. His motion asked only for an opportunity to present argument, not evidence, so the asserted error was never presented to the circuit court and could not be raised for the first time on appeal.
Finally, the court held that excluding the lay witness’s testimony was within the circuit court’s discretion. The witness could not place the victim at the business during the relevant month, and her proposed testimony was cumulative of testimony from four other defense witnesses. The court added that any error would have been harmless beyond a reasonable doubt because the testimony merely duplicated other evidence admitted at trial.
Key Takeaways
- A former-client conflict is not automatically imputed from an individual government lawyer to the entire prosecutor’s office.
- Prompt screening, the absence of shared confidential information, and the conflicted lawyer’s withdrawal can dispel an asserted appearance of impropriety.
- A request to argue a motion does not preserve a claim that the circuit court should have conducted an evidentiary hearing.
- A court may exclude cumulative defense testimony, particularly when the witness cannot connect the testimony to the charged offense’s relevant timeframe.
Why It Matters
The decision illustrates the demanding showing required to disqualify an entire elected prosecutor’s office. A defendant must first establish an individual lawyer’s conflict and then show a basis for imputing that conflict to the office, either under the professional-conduct rules or because an informed reasonable person would doubt the fairness of the trial.
It also underscores two preservation principles for criminal appeals: parties must present the particular legal theory they intend to pursue on appeal, and a party seeking an evidentiary hearing must actually request an opportunity to present evidence rather than merely asking to argue the motion.