Somerset —  

Nearly two years ago, Assistant Commonwealth’s Attorney Jeremy Bartley made his feelings very clear about convicted sex offender Luther Sexton.

“I hope he draws his last breath in prison,” Bartley said.

Yesterday, however, a ruling by the Kentucky Supreme Court made the 70-year-old Sexton a free man.

The Commonwealth’s high court issued an order reversing Sexton’s 12-year prison sentence, handed down by Pulaski Circuit Judge Jeffrey T. Burdette.

Sexton was convicted by a Pulaski Circuit Court jury in November 2006 for tampering with physical evidence and for being a first-degree persistent felony offender.

The Kentucky Court of Appeals affirmed the conviction in September 2008.

 But the Kentucky Supreme Court had a different take, ruling “that it was clearly unreasonable for a jury to find (Sexton) guilty of tampering with physical evidence ... The trial court erred in denying a directed verdict on this charge.”

The case unfolded in July 2005 when Sexton, a Bronston resident, was observed videotaping children on a field trip at the pool at General Burnside Island State Park. By the time authorities responded, Sexton had left the scene. But a parent had taken the license plate number of Sexton’s vehicle, and Pulaski County Sheriff’s Deputy Troy McLin went to Sexton’s home and asked to see the video camera and videotape.

After McLin viewed a portion of the tape, he returned it to Sexton and left to seek a search warrant to confiscate all the video tapes in Sexton’s home. When sheriff’s deputies returned with the warrant, the videotape recorded earlier that day was missing and Sexton refused to produce it. Several other videotapes confiscated that day from Sexton’s residence showed clips of naked children.

But absent was a tape that showed children swimming at the Burnside pool.

“The Commonwealth still must prove the existence of some physical evidence that (Sexton) allegedly tampered with,” The Supreme Court said in its order. “In this instance, the Commonwealth simply failed to produce any evidence that (Sexton) was actually videotaping anyone or anything while at the General Burnside Island State Park.

“(Sexton) maintained that he was attempting to videotape a passing houseboat, but was unable to get to his camera in time,” the order continued. “This story is seemingly confirmed by the fact that the videotape in (Sexton’s) camera that McLin viewed was of a television show. McLin did not see any footage of either a houseboat or of children swimming in the Burnside pool on the videotape, which is why he subsequently returned the tape to (Sexton).”

During preparation for Sexton’s trial, Bartley learned that Sexton had been prosecuted in multiple states for sexual assaults of children. Additionally, Sexton was on bond from Wayne County, where he was facing more sexual abuse charges, and had been ordered not to be near young children.

Sexton’s attorney, Robert Norfleet, believes it was Sexton’s past that got him convicted nearly four years ago.

“I aggressively advocated for a man society disliked and who was  being prosecuted for the wrong reasons — his past,” Norfleet said. “I have to commend the Supreme Court of Kentucky for standing up and correcting a failure of our justice system.

“I publicly stated that justice failed Mr. Sexton after he was wrongfully convicted,” Norfleet added. “Today, the Kentucky Supreme Court validated that statement.”

Commonwealth’s Attorney Eddy Montgomery said he was “frustrated” after yesterday’s order.

“I’m very disappointed in the ruling of the court,” Montgomery said. “Sexton has a long history of sexual crimes ... and now he is free to go back out into the community again.”

Norfleet said he regretted his client lost so much time in prison waiting for the appeals process to run its course.

“What we know now is that Luther Sexton was wrongfully convicted and had nearly four years of his life taken from him. That’s a long time and I can’t imagine what that feels like,” Norfleet said. 

Norfleet admitted that his vigorous defense may not play well with the public, given Sexton’s background of sexual crimes against children.

“As a defense attorney, I have an ethical obligation to provide my clients with the best and most zealous representation at my disposal,” Norfleet said. “I take this obligation very seriously. I put my personal feelings on the back burner and put my aggressive lawyer hat on.

“The bottom line is that Luther Sexton did not commit a crime back in 2005,” Norfleet added. “The problem was that the criminal justice system had a hard time putting his past behind him and looking at the charges for what they really were — an attempt to get a man society did not like off the street.”