by Matt Clarke

The Supreme Court of Kentucky reversed a woman’s convictions for first and second-degree arson and six counts of attempted murder, four of which were enhanced as hate crimes, because the prosecutor engaged in “flagrant” misconduct by misleading the jury in closing arguments on a material issue in dispute.

Karen M. Brafman lived in a trailer adjoining the trailer of Craig Calloway, who is Black, and Ashley Webster, who is White. Webster had six children, including three biracial children she had with Calloway. Brafman had a history of mental illness, had been institutionalized starting at age 8, and suffered from post-traumatic stress disorder, bipolar disorder, and depression. She also abused drugs and alcohol and was not taking her psychiatric medication the day of her arrest.

The day before she was arrested, Brafman did yardwork and got high with Calloway. At her trial, she testified that she had not slept for five days and had been consuming as much methamphetamine, ecstasy, and whiskey as she could in response to breaking up with her boyfriend and losing custody of her child.

Around 2:30 the next morning, Brafman visited Calloway and Webster’s trailer to ask for a cigarette. They did not have one, so she returned to her trailer. About three hours later, Webster woke up smelling smoke. Webster discovered fires burning beneath both ends of the trailer. She and Calloway were able to extinguish the fires before the fire department arrived. An arson investigator discovered that the arsonist had tried to use a siphon and kerosene heater. The investigator saw Brafman observing the scene from afar and stopped her as she was leaving her trailer with laundry. With Brafman’s permission, the investigator inspected the laundry. It had a strong smell of kerosene. Brafman was arrested.

Brafman was charged with first- and second-degree arson and attempted murder of Calloway, Webster, and the four children who were home that night.

During her trial, Brafman testified that she had no memory of what happened after asking for the cigarette due to her intoxication. Later, defense counsel requested a voluntary-intoxication jury instruction. The court refused to give the instruction because Brafman’s testimony was the only evidence of her intoxication. The jury convicted Brafman on all charges and recommended life for the first-degree arson and lesser sentences for the other charges.

The prosecutor moved the court to enhance the convictions as hate crimes. The court did so with respect to the four attempted murders of the children.

Aided by attorneys Kayla Danielle Deatherage and Emily Holt Rhorer of the Department of Public Advocacy, Brafman appealed. The Kentucky Supreme Court held that the trial court did not abuse its discretion in denying the voluntary intoxication instruction because Brafman’s testimony on intoxication was not corroborated. However, it found flagrant prosecutorial misconduct.

The arson investigator had not mentioned Brafman’s intoxication on direct examination, and defense counsel had not cross-examined. The prosecutor used this to argue to the jury that there was no evidence in the record that Brafman was intoxicated and implied that she was lying about being intoxicated, telling the jury: “It’s not drugs, it’s not high. Not one single witness testified to you that she appeared under the influence, intoxicated, drugged or anything…. He [the arson investigator] talked to her. Did he say, ‘Man, she looked like she was high…. No.’”

However, after the trial, a courtroom video recording emerged depicting the prosecutor and arson investigator talking during a lunchtime recess revealing that both were aware of Brafman’s intoxication and had intentionally kept that information from the jury.

In the recording, the investigator described Brafman as being “out of her frickin’ mind” from being high and how he would not have wanted to answer a question about her intoxication. The prosecutor explained that he intentionally did not ask such a question and reveled in the fact that nothing about intoxication was in the record.

The Court explained that in reviewing for palpable error, “we will reverse only if the alleged misconduct was flagrant or, where a contemporaneous objection was made, the proof of guilt is not overwhelming and the trial court failed to cure the misconduct with sufficient admonition,” citing Duncan v. Commonwealth, 322 S.W.3d 81 (Ky. 2010). Flagrant misconduct exists if it rendered “the trial fundamentally unfair.” Dickerson v. Commonwealth, 485 S.W.3d 310 (Ky. 2016). In determining whether misconduct was sufficiently flagrant to warrant reversal, courts weigh the four factors set forth in Dickerson: “(1) whether the remarks tended to mislead the jury or to prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberate or accidentally placed before the jury; and (4) the strength of the evidence against the accused,” the Court stated.

The Court ruled that, in weighing the foregoing factors, the facts of the case weigh heavily in Brafman’s favor. The closing argument implying that no one saw Brafman intoxicated was blatant, palpable, and flagrant misconduct, according to the Court. Further, while not “extensive,” it also was not isolated. The prosecutor’s deliberate and calculated actions “towed technical lines” but misdirected the jury from a crucial, relevant truth on a material issue required to determine Brafman’s specific intent, an element of both attempted murder and arson, the Court stated. Thus, the Court ruled that there was “flagrant prosecutorial misconduct” sufficient to “render the trial fundamentally unfair….”

Accordingly, the Court reversed the convictions and remanded the case for retrial. See: Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020). 

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