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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,478

STATE OF KANSAS,

Appellant/Cross-appellee,

v.

RODNEY L. TURNER,

Appellee/Cross-appellant.

SYLLABUS BY THE COURT

1.

The Fifth Amendment to the United States Constitution, as applied to the states 

through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights 

guarantee that a person shall not be compelled in a criminal case to be a witness against 

himself or herself. The constitutional right against self-incrimination means that no 

person shall be compelled to answer official questions put to him or her in any 

proceedings—civil or criminal, formal or informal—where the answers might incriminate 

that person in future criminal proceedings.

2.

For witnesses appearing before a grand jury, K.S.A. 22-3008(4) specifically 

codifies the constitutional right against self-incrimination in those proceedings.

3.

Unless the district court determines, pursuant to K.S.A. 22-3008(3), that a grand 

jury witness claiming the right against self-incrimination is bound to answer a particular 

question, a prosecutor commits constitutional error by continuing to question the witness 
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in front of the grand jury after the witness has unequivocally invoked his or her rights 

against self-incrimination.

4.

In this case, a Kansas Bureau of Investigation agent acting as chief investigator for 

the grand jury and a witness called by the prosecutor violated the constitutional and 

statutory rights against self-incrimination of another grand jury witness who had 

unequivocally and successfully invoked his rights against self-incrimination when the 

agent testified that the grand jury should draw an adverse inference from the witness' 

silence.

5.

The Fifth and Fourteenth Amendments to the United States Constitution protect an 

individual's due process rights and prohibit the deprivation of a significant life, liberty, or 

property interest. The target of a grand jury investigation has a significant liberty interest 

at stake and is entitled to due process protection. The essence of due process is fairness 

between the State and the individual dealing with the State. A State's administration of 

justice is subject to proscription under the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution if it offends some principle of justice so 

rooted in the traditions and conscience of our people as to be ranked as fundamental.

6.

Kansas statutes governing grand jury proceedings contemplate the due process 

mandate that an indictment should issue only where it is based on legal evidence, rather 

than suspicion or conjecture.
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7.

Once the accused in an indictment has established the existence of constitutional 

violations and abuse of process in the grand jury proceedings, the State, as the party 

benefitted by the errors, carries the burden to establish that the errors were harmless.

8.

A district court has the authority to dismiss a grand jury indictment if the accused 

was prejudiced by misconduct during the proceedings. The prejudicial inquiry must focus 

on whether any violations had an effect on the grand jury's decision to indict. If violations 

did substantially influence the grand jury's decision to indict, or if there is grave doubt as 

to whether the decision to indict was free from such substantial influence, the violations 

or errors cannot be deemed harmless.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 744, 250 P.3d 286 (2011). 

Appeal from Wyandotte District Court; JACK L. LIVELY, judge. Opinion filed September 5, 2014.

Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is 

affirmed.

Jerome A. Gorman, district attorney, argued the cause, and Steve Six, attorney general, was with 

him on the briefs for appellant/cross-appellee. 

James L. Eisenbrandt, of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, of Kansas City, 

Missouri, argued the cause, and Christina M. DiGirolamo, of the same firm, and Arthur A. Benson II, pro 

hac vice, of Law Offices of Arthur Benson & Associates, of Kansas City, Missouri, were with him on the 

briefs for appellee/cross-appellant.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, was on the brief for amicus Kansas 

Association of Criminal Defense Lawyers.

The opinion of the court was delivered by
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JOHNSON, J.: Rodney Turner seeks review of the Court of Appeals decision that 

reversed the district court's dismissal of a multiple-count indictment returned against him 

by a citizen-initiated grand jury. The petition to convene the grand jury alleged 

wrongdoing by the officers and directors of the Board of Public Utilities (BPU) of the 

Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). 

Turner, an attorney who did consulting and legal work for BPU, was indicted by the 

grand jury on 2 counts of theft and 55 counts of presenting a false claim, based upon the 

theory that he had not performed the work for which he had submitted monthly invoices 

to the BPU.

The district court granted Turner's motion to dismiss the indictment, finding that 

Turner had been prejudiced by grand jury abuses and violations of his constitutional 

rights. But the Court of Appeals reversed the dismissal, finding that Turner did not 

possess the full panoply of constitutional rights at the investigatory proceedings by the 

grand jury and that the constitutional violations that did occur during the grand jury 

proceedings did not prejudice Turner because the record contained sufficient evidence to 

establish probable cause to support the indictments. State v. Turner, 45 Kan. App. 2d 744, 

250 P.3d 286 (2011). Because the record before us establishes grave doubt that the grand 

jury's decision to indict was free from the substantial influence of the abuses of process 

and constitutional violations caused by the State's agents during the grand jury 

proceedings, we reverse the Court of Appeals and affirm the district court's dismissal of 

the indictment.

FACTUAL AND PROCEDURAL OVERVIEW

In January 2008, T.J. Reardon filed a petition to summon a grand jury in the 

District Court of Wyandotte County for the purpose of investigating claims relating to the 
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BPU and Unified Government. The petition set forth allegations that BPU executives and 

directors, as well as city and county officials, had violated the law and misappropriated 

public funds in various ways. The petition did not specifically refer to Turner or allude to 

the consulting and legal work that he performed for BPU, albeit one of the statements in 

the petition directed that "BPU no-bid contracts and fixing with possible bribery charges 

should be investigated."

The grand jury was convened in March 2008. The Court of Appeals referred to the 

grand jury proceedings as "a 6-month investigation," 44 Kan. App. 2d at 761-62, but the 

record indicates that the grand jury actually convened 17 times between its first meeting 

on March 5, 2008, and its last session on August 27, 2008; i.e., the grand jury averaged 

approximately 3 days in session per month. Wyandotte County District Attorney Jerome 

Gorman (DA) and Assistant District Attorney Kristiane Gray (ADA) presented evidence, 

examined witnesses, and provided legal advice during the grand jury proceedings. 

Special Agent William Delaney of the Kansas Bureau of Investigation (KBI) was 

assigned to investigate matters for the grand jury and played an integral role in the 

proceedings, testifying before the grand jury on 10 of the 17 days it was in session. The 

agent often advocated for an indictment against Turner, at times intimating that such an 

indictment might lead to a resolution of an unrelated 20-year-old murder case.

During his appearance on the first day of the proceedings, Delaney directed the 

grand jury's attention toward Turner by characterizing his consulting and legal work 

arrangement with BPU as an example of a "no-bid contract" to which the petition had 

referred. Subsequently, the grand jury would be presented evidence that from 2003 

through 2008, Turner had submitted monthly invoices to BPU that totaled in the 

neighborhood of $400,000. The invoices were routinely approved by both the general 

counsel and the general manager of BPU, notwithstanding that they contained only the 

number of hours worked and the hourly rate, without a detailed itemization of the nature 
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of work performed. The general counsel, Marc Conklin, was also a target of the 

investigation. 

The State called several witnesses, including two former executive assistants to 

BPU's general manager, two Board members, and an attorney who was acquainted with 

Turner, to testify that they did not know the nature of the work that Turner had actually 

performed for BPU. But other Board members, including the Board's secretary, testified 

about the nature of Turner's work for BPU of which they were aware, as did the former 

general manager of BPU who served from 1995 to 2005. The current BPU general 

manager opined that the amount of money paid to Turner was not out of line in 

comparison with what BPU spent on attorney fees and that he had accepted the general 

counsel's explanation that Turner "was offering a lot of legal advice and counsel to [the 

general counsel] and that [the general counsel] valued [Turner's] legal opinions."

At that first grand jury session, in response to a juror's question about when the 

agent had begun his BPU investigation, Delaney referred to a 20-year-old murder case 

that remained open. Delaney added that he remained interested in "BPU people because 

of some interest in another case that I probably can't discuss or shouldn't discuss on this 

Grand Jury."

Nevertheless, at the next session, Delaney told the grand jury that he had been 

"concerned and interested in BPU because some of the people that we were hearing were 

involved in the BPU we thought were involved in a murder case in Wyandotte County." 

Delaney then told the grand jury about that murder case, namely that Chuck Thompson, a 

local politician and attorney, was murdered in December 1987, and the case remained 

unsolved. Delaney further related that he was again approached in 2005 to do an 

investigation of BPU and that Turner's name continued to come up on both the BPU 
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investigation and the Thompson murder. The agent spoke of doing interviews on the 

"Thompson case/BPU case" and tied Turner to both cases by telling the grand jury:

"[Y]ou guys know, that there is some kind of legal work or some kind of work being 

done by Rod Turner I think over a period of 2003 to 2005. I think I saw the figures over 

$400,000 worth of work. All we've seen is invoices. I would be interested to see what's 

behind those invoices, what's causing those invoices, 40 hours a week at $150 an hour. 

He's got—I would think he would be able to justify why he's submitting those bills to the 

BPU.

"I think that's a very interesting area that you really ought to look at pretty 

closely. Again, we have an interest in Turner because supposedly he had information 

about this other case."

The agent went on to intimate that Turner was a dangerous person by telling the 

grand jury he had warned Reardon, the instigator of the grand jury petition, that he was 

"dealing with people that you need to be concerned about, don't put yourself in a position 

where you can become like a Chuck Thompson."

When the grand jurors were provided an opportunity to ask their own questions of 

Delaney, the following exchange took place:

"GRAND JUROR 392119: On the Chuck Thompson, I'm not even going to ask 

you to get into detail there. I don't think it's fair or relevant. But are you finding it easier 

to tie this all together?

"[DELANEY]: Some of the same names that came up in that have come up in 

this. And it's always been the people that probably weren't directly involved but people 

that are behind the scenes. That's the information, without getting in a lot of detail on the 

homicide, but these same names are coming up.

. . . .

"GRAND JUROR 406292: If we get Rod Turner in here and ask him about the 

$400, and is there something else—something else you might be licking your chops on?
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"[DELANEY]: He wouldn't talk to us about the homicide. I would like to talk to 

him about the homicide, but I don't think he would be cooperative."

Delaney concluded his testimony at the April 2 session by reiterating that his 

agenda was to "solve the Thompson murder and help resolve the BPU issues if possible.

And somewhere in between we'll find the right mix hopefully." He said that whenever he 

interviews someone on the BPU matter, he always asks about the Chuck Thompson 

murder.

Delaney next appeared two sessions later, on April 16, and provided an update on 

his witness interviews, after which the following exchange occurred with the assistant 

district attorney:

"[PROSECUTOR]. Obviously, you have a lot more experience in investigating 

things than any of us do. And obviously, you got a tremendous amount of information 

that you have been working on and a—

. . . .

"[PROSECUTOR]. What would be your suggestion as far as things that we can 

look into or direction that you think that we should take? . . . 

"[DELANEY]. . . . In all seriousness, obviously, I have kept a file open for a 

long time for a reason. 

. . . .

"The Rod Turner thing, I got to tell you guys, there has got to be an answer to 

why is he getting paid the money that he's getting paid. We're being told by many, many 

people that he's not doing nothing. Whether that's filing false claims, I think you need to 

seriously look at it. . . . I think you ought to bring Rod Turner in. I don't think that he will 

talk. I don't know." 
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After Delaney relayed his thoughts to the grand jury on where they should focus 

their investigation and explained that the grand jury only had a limited time to act, a 

grand juror again brought up the Chuck Thompson murder:

"419001: In your heart you mentioned the murder at Jalisco. In your heart, do 

you think there is any kind of relationship here?

"A. As I told you the first time I testified or when I testified about that issue, 

some of the same names in that case are coming up today. I will leave it at that. Murder 

is—there is never a statute of limitations and I have been working on it for 20 years and, 

you know, sometimes people get in a bind and get charged or indicted and they want to 

cooperate. Sometimes that will help us. I always look for that road too.

"419001: That is still open?

"A. Yes, it is very open.

"419001: If something comes out of this you can charge somebody?

"A. If something would come out of this or I mean, I actually think I know who 

did it and why, but to present it to 12 people, I don't know that we're ready, so."

In response to the question of whether he believed that Reardon was credible, 

Delaney responded by again tying Turner to the murder case:

"And I mean you hear something about Rod Turner. You just don't go to Rod Turner and 

say 'Hey, is this true?' Because, you know, I told you we tried talking to him on another 

case and he didn't see a need to talk to us, so I'll be shocked if he comes in and talks to 

you. Does that answer the question?"

Two sessions later, on April 30, 2008, Delaney provided another update to the 

grand jury and again referenced Turner's connection to the Thompson murder in 

explaining Turner's relationship with a possible witness.

"And actually I think a surveillance report I did probably on the Chuck Thompson 

murder case—again keeping—trying to keep track of some of these people, I think he 
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was seen with Rod Turner and Pat Scherzer out at an I-Hop or something out at the 

Kansas Speedway." 

The grand jury subpoenaed Turner to appear and testify at its session scheduled 

for June 25, 2008. Turner's attorney sent a letter to the DA objecting to Turner's 

appearance before the grand jury based upon Turner's privilege against self-incrimination 

under the Fifth Amendment to the United States Constitution and invoking the 

attorney/client privilege with respect to his representation of BPU. The record is silent on 

whether any effort was made to obtain a waiver of the attorney/client privilege from 

BPU, and the grand jury refused to release Turner from the subpoena.

Immediately before Turner was called to testify, a district judge appeared before 

the grand jury and announced that he was there to give the grand jury additional 

instructions, copies of which would be provided for the jurors. Interestingly, the 

instruction referred to "[t]he defendant's invocation of his Fifth Amendment Right," even 

though, as the Court of Appeals noted, Turner was not technically a defendant at that 

point. (Emphasis added.) The recitation of the instruction was as follows:

"Comes now the Court and by way of additional instructions to the Grand Jury 

does state as follows: The defendant's invocation of his Fifth Amendment Right. A 

person properly summoned before the Grand Jury is required to appear as a witness for 

purpose of giving testimony. No witness before the Grand Jury shall be required to 

incriminate the witness' self.

"If any witness appearing before the Grand Jury refuses to testify or to answer 

any questions asked in the course of the witness' examination, the facts shall be 

communicated to a district judge of the judicial district in writing on which the question 

refused to be answered shall be stated.

"The judge shall then determine whether the witness is bound to answer or not.

And the Grand Jury shall be immediately informed of that decision. The Grand Jury shall 

not draw any inference of guilt from the fact that a defendant does not testify or refused 
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to answer particular questions. You must not consider these facts in arriving at your 

decision regarding any indictment.

"These additional instructions to the Grand Jury must be considered in 

conjunction with the Grand Jury instructions and charges which you've already received.

All instructions provided must be given equal weight in consideration during your 

deliberations.

"These additional instructions to the Grand Jury, presented to the Grand Jury this 

25th day of June, 2008. Signed by myself at this time."

The district judge left the jury room after delivering the additional instruction.

Then, prior to questioning Turner, the DA advised him of his statutory rights: "No. 1 is 

you have the right to not incriminate yourself. And No. 2, that you have the right to 

counsel." The DA then noted for the record that Turner had availed himself of the right to 

counsel, who was present. Turner's counsel then made a record of certain matters, 

including the June 19 letter he sent to the DA, raising objections to the proceedings and 

to Turner's appearance at the proceeding. The attorney noted that the DA had been 

advised that Turner would invoke his rights under the Fifth Amendment. Additionally, 

counsel referred to the American Bar Association rules concerning prosecutors calling 

witnesses before the grand jury who are the subject of the investigation and recited the 

special responsibility of a prosecutor under Kansas Rules of Professional Conduct 

(KRPC) 3.8(e) (2013 Kan. Ct. R. Annot. 614) to "not subpoena a lawyer in a grand 

jury . . . to present evidence about a past or present client" except under limited 

circumstances. The attorney also requested the DA to instruct the jury that no adverse 

inference could be drawn from Turner's assertion of his Fifth Amendment right, to which 

the DA replied that the grand jury had been "so instructed by Judge Lampson."

The DA then commenced upon a course of plethoric questioning that elicited over 

100 identical successive responses from Turner in which he refused to answer on the 

grounds that it may tend to incriminate him, i.e., in which he invoked the statutory right 
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of which the DA had just advised him. Many, if not most, of the DA's questions were 

leading questions that may have suggested to the jurors what the DA believed the facts to 

be. The DA did not communicate in writing with the district judge about Turner's refusal 

to testify or about the questions Turner refused to answer, as the district judge's additional 

instructions had directed.

The DA then invited the jurors to join in, and one of the grand jurors asked four 

pointed questions, all of which elicited the same response from Turner: "I refuse to 

answer on the grounds it may tend to incriminate me." The DA jumped back in to ask 

eight more unanswered questions before another grand juror concluded the one-sided 

interrogation of the nonresponsive witness by asking: "As a citizen of Wyandotte County 

don't you think in your opinion that we ought to know as citizens where our money is 

going?" The jurors, like the DA, failed to communicate in writing with the district judge 

as he had just finished instructing them to do.

When Delaney next appeared before the grand jury, on July 30, 2008, he 

suggested an adverse inference might be drawn from Turner's exercise of his 

constitutional and statutory right against self-incrimination because if Turner were 

innocent he would have shown the grand jury proof. Specifically, in response to the 

question from ADA Gray as to what had raised red flags or were big things for the 

investigator, Delaney responded:

"The consulting is an issue. I think the outside counsel is an issue. . . . The Rod 

Turner to me is just so blatant. I mean, I can't explain—I'm not a lawyer, but if he's got 

proof of what he's doing for the BPU why doesn't he show it to us, or why doesn't he 

show it to you. That's just an opinion of mine. I'm not a lawyer. I'm just a cop."
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At that July 30 grand jury session, Delaney once again alluded to the Thompson 

murder case when testifying about statements obtained from Pat Scherzer, BPU's 

insurance agent and a close acquaintance of Turner, who had also been a one-time target 

of the grand jury investigation. Specifically, Delaney said:

"And also an interesting tidbit of information I thought was, he asked about me, the KBI 

being involved in the BPU case, and that we were trying to use the BPU case to solve the 

Chuck Thompson murder. If you remember that's the politician that was killed in 1987.

"And apparently Mr. Scherzer thought supposedly thought that we were writing a 

book about it. And that's the farthest thing from the truth. But anyway—it's interesting 

that he's concerned about this case, and then all of a sudden he's interested in the Chuck 

Thompson murder. So just a little tidbit for your information." 

Delaney next testified on August 13, 2008, and again discussed Scherzer's alleged 

statements that Delaney was using the BPU case to help solve the Thompson murder and 

that Delaney was going to write a book about solving the case. Delaney declared:

"Well, that ain't happening. I ain't writing a book. It is happening, we are trying 

to solve the Chuck Thompson murder. When there's individuals involved in that murder 

and if their names came up in this case, so be it. That's the way it goes. By the way, I'm 

not writing a book."

Delaney also testified about conversations that an attorney, who was representing BPU 

Board members before the grand jury, had with District Attorney Gorman about 

Delaney's use of the grand jury proceedings to solve the Chuck Thompson murder.

Delaney related:

"Yesterday Jerry Gorman, your district attorney, said Tom Bath, who is representing the 

Board of Public Utilities board members, apparently has been approached by some board 

member, their concern that Bill Delaney asking BPU people connected—people 
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connected to the BPU case, this case, that I'm asking them questions about the Chuck 

Thompson murder. That apparently concerns them for some reason. I don't know why.

"But I guess they don't like people with BPU or somehow involved in a murder, 

you know, they are concerned about that. And they were apparently asking—this board 

member or board members thought that they should go to my supervisor and complain.

"Mr. Bath said, let me talk to Mr. Gorman and see what's going on. Mr. Gorman 

advised me of this yesterday. I don't know when that conversation took place. I don't care 

when it took place. I've called my bosses and told my bosses—I have two. I have an 

assistant director in Topeka. I called him and actually the director of the KBI.

"I said, just to let you know, you may be getting a complaint on me but—you 

may be getting a complaint on it, but just to let you know it's going to happen and that I 

don't really care. And I want to be right up-front about that."

The grand jury returned a sealed indictment charging Turner with 2 counts of theft 

and 55 counts of presenting a false claim arising from Turner's submission of invoices 

that were not itemized. Conklin, BPU's general counsel who had approved Turner's 

invoices, was also indicted for 2 counts of theft and 55 counts of allowing a false claim, 

albeit he died prior to being prosecuted. No other individuals were indicted, and none of 

the actual specific allegations in the petition used to convene the grand jury was the basis 

for any criminal charge.

Turner filed a motion to dismiss the indictments for grand jury abuse and violation 

of his constitutional rights. He complained about the grand jury's requirement that he 

appear and invoke his Fifth Amendment privilege after each of the hundred-plus 

questions. Turner also argued that he was unduly prejudiced by Delaney's frequent 

references to his alleged connection to the Thompson murder. After conducting a hearing 

on the motion, the trial court determined that Turner's "rights were prejudiced by the 

grand jury abuses and the State's violation of his Constitutional rights," and the court 

sustained Turner's motion to dismiss the indictment after specifically finding that:
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"1. The State and its investigative officer undermined the grand jury process and 

deprived Mr. Turner of due process and his Fifth Amendment rights.

"2. The grand jury was repeatedly subjected to unsupported statements 

concerning the murder of Chuck Thompson, which occurred over twenty years ago. The 

murder was irrelevant to the alleged [BPU] violations that the grand jury was charged 

with investigating, but the State allowed information and speculation about the murder to 

be thrust into the hands of the grand jury proceeding.

"3. While testifying before the grand jury, the State's investigator attempted to 

link Mr. Turner to the murder or at least give the illusion that he was somehow connected 

thereto. This was highly improper and prejudicial and his comments tainted the grand 

jury and violated . . . Mr. Turner's rights of due process.

"4. The State caused Mr. Turner to appear before the grand jury even though it 

knew that he would exercise his Fifth Amendment rights and that he would not waive his 

attorney-client privilege held by his relationship with the BPU.

"5. During the grand jury proceeding, the State's investigator was permitted to 

cast doubt on Mr. Turner's constitutional rights by commenting that Mr. Turner should 

come forward with information about the Thompson murder and about his dealings with 

the BPU.

"6. The State failed to conduct a fair grand jury proceeding and allowed 

information to be presented to the grand jury in a manner that caused the grand jury to 

become prejudiced against Mr. Turner."

The State appealed the indictment dismissal to the Court of Appeals, which 

reversed the district court's decision. State v. Turner, 45 Kan. App. 2d 744, 250 P.3d 286 

(2011). The Court of Appeals first considered the district court's determination that 

Turner's Fifth Amendment rights had been violated. The panel found that the district 

court had applied an incorrect legal standard in determining that the prosecutor had 

violated Turner's Fifth Amendment right against self-incrimination because, in the panel's 

opinion, a witness may be required to appear before the grand jury and assert his or her 

Fifth Amendment rights on a question-by-question basis. 45 Kan. App. 2d at 754. The 

panel did find that Delaney had violated Turner's constitutional right to remain silent in 
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testimony given after Turner had invoked that right, but the panel determined that Turner 

had not shown that he was prejudiced by that constitutional error. 45 Kan. App. 2d at 

756.

Next, the panel found "that it constituted an abuse of discretion for the district 

court to find that the State 'failed to conduct a fair grand jury proceeding' without reading 

all the transcripts of the entire grand jury proceedings." 45 Kan. App. 2d at 757.

Nevertheless, the panel embarked upon its own review of the entire record and 

discovered that Delaney had made "multiple references to his involvement in the 

Thompson murder investigation" and that "[a]ll of these references were irrelevant and 

unnecessary to the grand jury's investigation of Turner and the BPU." 45 Kan. App. 2d at 

758. But the panel held that, because the errors occurred as isolated episodes over the 

course of a 6-month investigation and because substantial evidence was presented before 

the grand jury to support probable cause for Turner's indictment, "it seems unlikely that 

Delaney's improper testimony had 'a substantial effect on the grand jury's decision' to 

indict Turner." 45 Kan. App. 2d at 764 (quoting Bank of Nova Scotia v. United States, 

487 U.S. 250, 263, 108 S. Ct. 2369, 101 L. Ed. 2d 228 [1988]). Moreover, the panel 

proffered the alternative justification that "Turner's constitutional rights can be protected 

at trial." 45 Kan. App. 2d at 764. 

Turner petitioned for review of the Court of Appeals decision, in part complaining 

that the Court of Appeals disregarded the abuse of discretion standard of review "by 

wholly substituting its own decision for that of the District Court" and that the panel 

essentially abolished important constitutional rights in grand jury proceedings. Turner 

argues that the district court's determination that the State violated Turner's Fifth 

Amendment and due process rights by conducting improper and prejudicial grand jury 

proceedings was supported by at least three State actions: (1) The DA required Turner to 

repeatedly invoke his Fifth Amendment right to remain silent over 100 times in the 
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presence of the grand jury, after being advised beforehand that Turner would invoke that 

constitutional and statutory right; (2) the State's chief investigator impermissibly 

commented on Turner's invocation of his Fifth Amendment right to remain silent after 

Turner had been called as a witness; and (3) the State's chief investigator repeatedly 

testified about, and linked Turner to, an unrelated murder. We agree on all counts. 

DISMISSAL OF GRAND JURY INDICTMENT

Although the Court of Appeals reversed the district court's dismissal of Turner's 

indictment, the panel did not do so because the proceedings were free of error. To the 

contrary, the panel found Delaney's multiple references to the Thompson murder to be 

"irrelevant and unnecessary" to the grand jury inquiry and ultimately labeled that portion 

of the State's evidence as "Delaney's improper testimony." 45 Kan. App. 2d at 758, 764.

The State did not seek review of that portion of the Court of Appeals' decision. Likewise, 

the panel found constitutional error in Delaney's comments on Turner's exercise of his 

right to remain silent. Again, the State has not asked us to reverse that Court of Appeals 

holding.

Accordingly, the disposition of this review will hinge upon the question of 

whether the irregularities and improprieties in the grand jury proceedings already 

determined by the courts below justified the district court's dismissal of the ensuing 

indictment. En route to that determination, we will review the Court of Appeals' 

assessment of the nature and extent of grand jury abuses in this case.

Standard of Review

The Court of Appeals declared that it was utilizing an abuse of discretion standard 

to review the district court's dismissal of Turner's indictment. Turner, 45 Kan. App. 2d at 

749-50. The panel relied in part upon its determination that the district court had used an 
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incorrect legal standard and in part upon its determination that the entire record did not 

support the lower court's holding. We have clarified that both legal and factual infirmities 

can form the basis for an abuse of discretion:

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, 

i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is 

based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; 

or (3) is based on an error of fact, i.e., if substantial competent evidence does not support 

a factual finding on which a prerequisite conclusion of law or the exercise of discretion is 

based. [Citation omitted.] In some cases, this three-part standard may narrow the broad 

discretion previously allowed when this court routinely applied only the no-reasonableperson-would-take-the-same-view standard. [Citation omitted.]" State v. Ward, 292 Kan. 

541, 550-51, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Within that context, where we are called upon to determine whether constitutional 

rights have been violated, we review the district court's factual findings for substantial 

competent evidence, but the ultimate legal conclusion is reviewed as a question of law 

utilizing an unlimited standard of review. State v. Bell, 280 Kan. 358, 362, 121 P.3d 972 

(2005). In addition, whether a defendant's due process rights are violated is a question of 

law over which this court exercises de novo review. See State v. Kirkpatrick, 286 Kan. 

329, 351, 184 P.3d 247 (2008).

Analysis

The Court of Appeals began by discussing Turner's Fifth Amendment rights, albeit 

those guarantees are actually enforced against state actions through the Fourteenth 

Amendment of the United States Constitution. See Malloy v. Hogan, 378 U.S. 1, 3, 84 S.

Ct. 1489, 12 L. Ed. 2d 653 (1964). Nevertheless, to avoid confusion, we will continue the 

panel's reference to Fifth Amendment rights. The part of that amendment that is relevant 

to our inquiry reads as follows: "[N]or shall [any person] be compelled in any Criminal 
19

Case to be a witness against himself." U.S. Const. amend. V. Further, we would also note 

in passing that our state constitution contains a privilege against self-incrimination as 

well. Kansas Constitution Bill of Rights, § 10.

Moreover, the right to remain silent is a deep-rooted, fundamental privilege. It is 

universally applicable to protect an individual from being compelled to answer "official 

questions put to him in any other proceeding, civil or criminal, formal or informal, where 

the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 

414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). Clearly, then, the constitutional 

right against self-incrimination was available to protect Turner from being compelled to 

answer official questions put to him by the prosecutor at a grand jury proceeding where 

the answers might incriminate Turner in a future criminal proceeding, such as one arising 

from an indictment by the grand jury before which he was testifying. Indeed, K.S.A. 22-

3008(4) specifically codifies the constitutional right for grand jury proceedings: "No 

witness before a grand jury shall be required to incriminate the witness' self." Any 

suggestion that the constitutional right was somehow diluted or diminished because a 

grand jury is an investigatory proceeding rather than a criminal action ignores the 

purpose of the privilege.

State's Questioning

The first Fifth Amendment issue addressed by the panel was Turner's complaint 

that the DA should not have made him invoke his right against self-incrimination over 

100 times in front of the grand jurors. The Court of Appeals relied heavily upon In re 

Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 475, 932 P.2d 1023 (1997),

where a Court of Appeals panel opined that pursuant to statutory language and 

interpretive caselaw, "a person called as a witness in an inquisition under K.S.A. 22-3101 

et seq. is not provided blanket immunity from answering questions, and the district court 
20

correctly required the witness to assert a Fifth Amendment right on a question-byquestion basis." The panel in this case declared: "Due to the similarities between an 

inquisition and a grand jury proceeding, the analysis of a witness' Fifth Amendment 

rights in the context of an inquisition is applicable to a grand jury proceeding as well." 

Turner, 45 Kan. App. 2d at 752. We reject that premise because the inquisition analogy is 

fallacious.

While inquisitions and grand jury proceedings share some common procedural 

statutes, they are pointedly different in the areas impacting the protection of an 

individual's constitutional rights. First, and foremost, an inquisition does not involve any 

nonlawyers; layperson jurors are not in charge of an inquisition. Compare K.S.A. 22-

3101 with K.S.A. 22-3001(3). A prosecuting attorney applies to a judge to conduct an 

inquisition, and the judge is charged with issuing subpoenas. K.S.A. 22-3101(1). In the 

course of the inquisition, the judge has the hands-on responsibility to prevent the 

prosecutor from abusing the judicial process. See Alpha Med. Clinic v. Anderson, 280 

Kan. 903, 918, 128 P.3d 364 (2006). Upon completion of the inquisition, nothing 

happens until the prosecuting attorney exercises his or her professional judgment and 

discretion to file a complaint. See K.S.A. 22-3103.

The absence of nonlawyers participating in an inquisition is important for a 

number of reasons, not the least of which is that the prosecutor has no one to improperly 

influence by asking numerous leading questions to a witness invoking Fifth Amendment 

rights. Pointedly, T.H. did not even address whether requiring a question-by-question 

invocation of Fifth Amendment rights could be prejudicial to those rights, presumably 

because none of the participants at an inquisition should be confused about the meaning 

of such a refusal to answer. In contrast, a layperson would naturally intuit that a person 

refusing to answer on the grounds that it might incriminate the witness is simply trying to 

hide his or her guilt. If the witness has nothing to hide, why doesn't the witness just 
21

answer the questions? KBI Agent Delaney would put that thought into the heads of these 

grand jurors.

Moreover, both the prosecutor and the presiding judge at an inquisition are subject 

to rules of professional conduct, as well as having taken an oath of office to uphold the 

law, including our constitutions. Although lay grand jurors also take an oath, failure to 

comply does not put their professional livelihood at risk.

Further, the disposition in a grand jury differs significantly from the purely 

investigative function of an inquisition. In the event that the State's law-trained 

representative exercises his or her prosecutorial discretion and files a criminal complaint 

based upon information gleaned during an inquisition, the defendant still has a right to a 

probable cause determination under the Fourth Amendment to the United States 

Constitution and a Kansas statutory right to a preliminary hearing. See Gerstein v. Pugh,

420 U.S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) ("the Fourth Amendment 

requires a judicial determination of probable cause as a prerequisite to extended restraint 

of liberty following arrest"); K.S.A. 22-2902(1) (preliminary hearing procedures).

In stark contrast, the endgame for a grand jury is to issue an indictment upon the 

concurrence of 12 of the 15 jurors. K.S.A. 22-3011. In that event, no further test for 

probable cause is required and the indicted defendant is not entitled to a preliminary 

hearing. See State v. Clemons, 261 Kan. 66, 68, 929 P.2d 749 (1996). In Vasquez v. 

Hillery, 474 U.S. 254, 263, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986), the United States 

Supreme Court held that the intentional discrimination in grand jury selection is a grave 

constitutional trespass and, en route to that holding, the Court recognized that a grand 

jury's power transcends mere investigation: 
22

"Nor are we persuaded that discrimination in the grand jury has no effect on the 

fairness of the criminal trials that result from that grand jury's actions. The grand jury 

does not determine only that probable cause exists to believe that a defendant committed 

a crime, or that it does not. In the hands of the grand jury lies the power to charge a 

greater offense or a lesser offense; numerous counts or a single count; and perhaps most 

significant of all, a capital offense or a noncapital offense—all on the basis of the same 

facts."

Granted, a grand jury does not determine the guilt or innocence of a defendant, 

like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 

22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding 

juror, in the jury's presence, to the court and shall be filed and remain as records of the 

court."). Moreover, the need to protect an accused individual's constitutional rights before 

factfinders who are not trained in the law and consequently do not know and understand 

those constitutional rights is precisely the same with a grand jury as it is with a petit jury.

Finally, although the Court of Appeals pointed out similar statutory provisions 

relating to inquisitions and grand juries, it overlooked some significant textual 

differences. Specifically, K.S.A. 22-3008 deals with immunity for grand jury witnesses 

and provides, in relevant part:

"(3) If any witness appearing before a grand jury refuses to testify or to answer 

any questions asked in the course of the witness' examination, the fact shall be 

communicated to a district judge of the judicial district in writing, on which the question 

refused to be answered shall be stated. The judge shall then determine whether the 

witness is bound to answer or not, and the grand jury shall be immediately informed of 

the decision." (Emphasis added.)

The disjunctive—refuses to testify or to answer any questions—certainly suggests 

that "any witness" has the option of refusing to provide any testimony before a grand jury 
23

until a judge orders otherwise, rather than having the sole choice of refusing to answer 

question-by-question. No similar provision is found in the inquisition statutes. Instead, 

those statutes provide that a witness may not be compelled to self-incriminate, but the 

witness may be judged in contempt of court if he or she refuses to answer any "proper 

question propounded during the inquisition." K.S.A. 22-3101(3).

Turner suggests that he should not have been required to appear before the grand 

jury at all after his attorney advised the DA that Turner would invoke his Fifth 

Amendment rights. But we need not wrestle with that question here. Turner appeared 

before the grand jury and clearly invoked his constitutional and statutory rights against 

self-incrimination, and the DA failed to follow the procedure set forth in K.S.A. 22-

3008(3). The DA did not communicate in writing to the judge that Turner refused to 

testify and then await direction from the court. Instead, the DA chose to ask a hundred 

plus questions, knowing that Turner could not refute the substance of the questions 

without waiving his Fifth Amendment right to remain silent. An example of the DA's 

tactics follows:

"Q. Was Marc Conklin just submitting the bills to the BPU for Rodney L. 

Turner? 

"A. I refuse to answer on the grounds it may tend to incriminate me. 

"Q. Did you and Mr. Conklin discuss this matter ahead of time? 

"A. I refuse to answer on the grounds it may tend to incriminate me. 

"Q. The monies that you've received, some $411,000 or $412,000 for the period 

of 2003 through March of 2008, did you share those monies with anyone else? 

"A. I refuse to answer on the grounds it may tend to incriminate me.

"Q. Were those monies received for legal services? 

"A. I refuse to answer on the grounds it may tend to incriminate me. 

"Q. Can you name one legal service you performed for the Board of Public 

Utilities? 

"A. I refuse to answer on the grounds it may tend to incriminate me."
24

By that ploy, the DA could suggest to the grand jury what the State believed the 

facts to be. And perhaps more damning, the questioning could create the impression that 

for each and every question that Turner refused to answer, he must have something to 

hide. In State v. Crumm, 232 Kan. 254, Syl. ¶ 1, 654 P.2d 417 (1982), where the 

defendant attempted to call as a witness a potential suspect in the case whose counsel had 

advised that the witness would claim her Fifth Amendment rights, this court clarified that 

"[i]t is improper conduct for either the prosecution or the defense knowingly to call a 

witness who will claim a privilege, for the purpose of impressing upon the jury the fact of 

the claim of privilege." The Crumm Court expanded on the reasons behind that 

prohibition: 

"'Further, a witness's reliance on the Fifth Amendment "may have a disproportionate 

impact upon the minds of the jurors." [Citation omitted.] "The jury may think it high 

courtroom drama of probative significance when a witness 'takes the Fifth.' In reality, the 

probative value of the event is almost entirely undercut by the . . . fact that it is a form of 

evidence not subject to cross-examination." [Citation omitted.] Because the impact of a 

witness's refusal to testify outweighs its probative value, "[i]t is well settled that the jury 

is not entitled to draw any inferences from the decision of a witness to exercise his 

constitutional privilege whether those inferences be favorable to the prosecution or the 

defense." [Citations omitted.]'" (Emphasis added.) 232 Kan. at 260 (quoting Com. v. 

Hesketh, 386 Mass. 153, 157, 434 N.E.2d 1238 [1982]).

It is difficult to discern how a grand juror would be immune to those adverse 

consequences from which we scrupulously protect a petit juror. Granted, here, the district 

judge had instructed the grand jury that it was not to draw any adverse inference from 

Turner's invocation of his Fifth Amendment privilege. But the DA's incessant and 

probing questioning sent an entirely different message. We know from the record that at 

least some of the jurors received the DA's message loud and clear, as demonstrated by the 
25

jurors' pointed questions to Turner, including one juror's manifestation of bias against 

Turner: "As a citizen of Wyandotte County don't you think in your opinion that we ought 

to know as citizens where our money is going?" In other words, the district court's 

admonition to the grand jurors to refrain from drawing any adverse inference from 

Turner's invocation of his Fifth Amendment rights did not survive to the end of the State's 

questioning, and the DA did nothing to correct the questioning jurors or to reinforce the 

district judge's admonition. 

Additionally, the questioning went beyond creating inferences or suspicions with 

regard to the padded invoices allegations being investigated. For instance, the DA 

referred to a letter in which the correspondent had copied the Disciplinary Administrator 

and then inquired: "Can you explain to me what that was about?" Of course, the DA 

knew that Turner had to leave the suggestion of unethical conduct dangling before the 

jurors without a response. Similarly, the DA inquired about some real estate investments, 

intimating that Turner, Conklin, and others were in cahoots on some shady deals. 

But the DA did not do all of the damage by himself. The prosecutors permitted, if 

not aided and abetted, Delaney to encourage the grand jury to call Turner as a witness 

and to suggest to the jurors that Turner should be willing to tell them what he did to 

justify the invoices. Then, after Turner appeared and refused to testify, the prosecutors 

permitted Delaney to again tell the jurors that Turner should prove what work he had 

been performing for BPU. The jurors did not have to draw adverse inferences from 

Turner's refusal to testify because the State's chief investigator outright told them that 

Turner was wrong to invoke his constitutional right to remain silent.

Accordingly, we agree with the district court that the DA's persistent questioning 

of Turner, after learning that he was invoking his Fifth Amendment right against selfincrimination, was improper and would provide at least part of the justification for 
26

dismissing the resulting indictment. We reverse the Court of Appeals' holding to the 

contrary.

Comment on Silence

Next, the panel addressed the district court's holding that "'[d]uring the grand jury 

proceeding, the State's investigator was permitted to cast doubt on Mr. Turner's 

constitutional rights by commenting that Mr. Turner should come forward with 

information about the Thompson murder and about his dealings with the BPU.'" State v. 

Turner, 45 Kan. App. 2d 744, 754, 250 P.3d 286 (2011). Curiously, the panel first opined 

that "there is no direct legal authority for the proposition that a comment by a witness to a 

Kansas grand jury about another witness' silence at a grand jury is improper, much less a 

violation of constitutional rights." 45 Kan. App. 2d at 756. But then the opinion 

summarily declares that "Delaney's comment on Turner's refusal to testify, after he had 

expressly invoked his right to remain silent, violated his constitutional rights under the 

Fifth Amendment." 45 Kan. App. 2d at 756.

We agree with the panel's conclusion, and we find support in the rationale behind 

Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and its 

progeny for prohibiting the State from using a witness' silence for impeachment purposes 

at a grand jury proceeding. Doyle and its progeny are founded upon the notion that it is 

fundamentally unfair to advise a person that he or she has the right to remain silent and 

then impeach that person with the fact that he or she exercised the right. Turner had both 

a constitutional and statutory right to remain silent when called before the grand jury, and 

the prosecutor dutifully advised Turner of that right. When the State's chief investigator, 

Delaney, suggested to the grand jury that it should draw an adverse inference from 

Turner's failure to explain his billing invoices and the prosecutor did nothing to correct 

that impropriety, the State violated the Due Process Clause of the Fourteenth 
27

Amendment. Cf. Doyle, 426 U.S. at 619; State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d 

387 (1976). Where we part company with the Court of Appeals is when it opines that 

Turner had the burden and failed to prove that the State's constitutional violation 

prejudiced him. We will discuss the harmlessness of the various errors below.

Abuse of the Grand Jury Process

In dismissing the indictment, the district court made the additional finding that the 

"State failed to conduct a fair grand jury proceeding and allowed information to be 

presented to the grand jury in a manner that caused the grand jury to become prejudiced 

against Mr. Turner." That finding was based upon Delaney's repeated references to the 

1987 Thompson murder, intimating that Turner had information about that crime and 

suggesting that indicting Turner on the false claims and theft charges could help the KBI 

agent solve the murder case.

The panel reviewed the abuse of process complaint as a matter of due process.

Citing to a quarter-century old Wyoming case, Hennigan v. State, 746 P.2d 360 (Wyo. 

1987), the Court of Appeals rejected the notion that due process rights attach in a grand 

jury proceeding in the same manner as in a criminal trial. Turner, 45 Kan. App. 2d at 760. 

But the panel did not explain what process Turner was due in these proceedings, opting 

instead to decide that Turner was not prejudiced by the improper testimony in the grand 

jury proceeding and, without prejudice, due process rights are not deemed to be violated.

45 Kan. App. 2d at 764. 

The Fifth and Fourteenth Amendments to the United States Constitution protect an 

individual's due process rights and prohibit the deprivation of a significant life, liberty, or 

property interest. Hudson v. State, 273 Kan. 251, 259, 42 P.3d 150 (2002). Obviously, the 

target of a grand jury investigation has a significant liberty interest at stake and is entitled 
28

to due process protection. The essence of due process is fairness between the State and 

the individual dealing with the State. See Chiles v. State, 254 Kan. 888, 902, 869 P.2d 

707 (1994). "A State's decision regarding the administration of justice is subject to 

proscription under the Due Process Clause of the Fourteenth Amendment to the United 

States Constitution if '"it offends some principle of justice so rooted in the traditions and 

conscience of our people as to be ranked as fundamental." (Citations omitted.)'" State v. 

Bethel, 275 Kan. 456, 461, 66 P.3d 840 (2003) (quoting Patterson v. New York, 432 U.S. 

197, 201-02, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]).

Our grand jury statutes provide some insight into the due process requirements in 

such proceedings. For instance, K.S.A. 22-3002(2) permits dismissal of an indictment 

based upon an objection to the "array or on the lack of legal qualification of an individual 

juror," suggesting that a target of an investigation is entitled to a grand jury free from 

discrimination. See Vasquez, 474 U.S. at 263. K.S.A. 22-3003, which governs the grand 

juror's oath, specifically provides that grand jurors are required to be fair and impartial. 

See also State v. Chong, 86 Hawaii App. 290, 293, 949 P.2d 130 (1997) (In Hawaii, 

constitutional due process requires a fair and impartial grand jury proceeding.). But most 

importantly for our purposes here, the grand juror's oath directs that the juror is to base 

the indictment on "legal evidence." K.S.A. 22-3003. Legal evidence has been defined as 

"[a]ll admissible evidence, both oral and documentary, of such a character that it 

reasonably and substantially proves the point rather than merely raising suspicion or 

conjecture." Black's Law Dictionary 598 (8th ed. 2004).

Thus, our statutes contemplate that due process mandates that a Kansas grand jury 

should only issue an indictment based on legal evidence, rather than suspicion or 

conjecture. See also People v. Backus, 23 Cal. 3d 360, 393, 152 Cal. Rptr. 710, 590 P.2d 

837 (1979) (When the extent of incompetent and irrelevant evidence before the grand 

jury is such that, under instructions and advice given by the prosecutor, it is unreasonable 
29

to expect that the grand jury could limit its consideration to admissible, relevant 

evidence, defendants have been denied due process.). But cf. Bracy v. United States, 435 

U.S. 1301, 1302, 98 S. Ct. 1171, 55 L. Ed. 2d 489 (1978) (while presentation of 

inadmissible evidence at trial may pose substantial threat to integrity of factfinding 

process, its introduction before grand jury poses no such threat).

Here, the irrelevant and unnecessary evidence of Turner's involvement in or 

knowledge of the unrelated Thompson homicide was more than extraneous clutter that 

the jurors had to wade through. Delaney presented that evidence as part of the basis upon 

which the grand jury should indict on the padded billings charges, i.e., so that the agent 

could coerce Turner's cooperation to solve the murder case. Certainly, then, where the 

indictment is potentially based on irrelevant evidence, the process has not attained the 

fundamental fairness required by due process protections. We have no problem labeling 

as a due process violation Delaney's irrelevant and unnecessary testimony about the 

Thompson murder case, which was sponsored, or at least enabled, by the prosecutors.

Dismissal of the Indictment

To review, we have identified the following errors in the grand jury proceedings: 

(1) The DA violated Turner's Fifth Amendment right against self-incrimination by asking 

him numerous questions in front of the grand jury which required him to invoke the 

privilege over 100 times; (2) the State's chief investigator for the grand jury 

impermissibly commented on Turner's silence in violation of his Fifth Amendment right 

against self-incrimination; and (3) the State-sponsored testimony of the chief investigator 

violated Turner's due process rights by introducing irrelevant and unnecessary evidence 

about an unrelated murder case and suggesting that the grand jury should indict on the 

present case to help solve the prior murder case. Our final step is to determine whether 

those errors warranted a dismissal of the indictment.
30

Before proceeding, we pause to briefly address the Court of Appeals' declaration 

that the district court erred in not reading the entire grand jury transcript before ruling 

that the egregious errors pointed out by Turner were prejudicial. Pointedly, the panel did 

not identify what portions of the unread transcript provide an excuse or cure of the 

constitutional violations pointed out by the defense. Moreover, as the panel pointed out, 

the entire transcript is provided on appeal and the State is free to point out to us those 

portions of the transcript that favor the State's position.

Although the Court of Appeals found a constitutional violation, it placed the 

burden on Turner to establish that the errors were prejudicial. Cf. State v. Ward, 292 Kan. 

541, 568-69, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (burden to show 

harmless error on party benefiting from the error; constitutional violations require greater 

degree of certainty of harmlessness). Relying on Bank of Nova Scotia v. United States,

487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), the panel held that, given the 

existence of substantial competent evidence in the record to support the indictment, 

Turner had failed to meet his burden of establishing prejudice. Turner, 45 Kan. App. 2d 

at 764. We disagree with several aspects of the panel's holding.

Our first disagreement is with the panel's placing the burden of proof on Turner to 

establish that the constitutional violations committed by agents of the State were not 

harmless error. The district court ruled in favor of Turner and the State appealed, 

acknowledging that errors occurred in the grand jury proceedings which would have 

caused a reversal of a trial verdict but arguing that the errors were harmless in the context 

of this grand jury proceeding. The State needed to prove its theory of appeal; Turner was 

not required to prove the fallacy of the State's argument. Moreover, since Ward, we have 

consistently placed the burden of proving harmlessness upon the party that benefitted 

from the error.
31

Next, we do not read the Supreme Court's holding in Bank of Nova Scotia as 

supporting the proposition for which the panel uses it. Nowhere in the opinion did the 

Bank of Nova Scotia Court declare that the existence of sufficient evidence to support an 

indictment renders harmless any and all errors in the proceedings, as a matter of law. To 

the contrary, the issue presented in that case was whether "a district court may invoke its 

supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury 

investigation, where the misconduct does not prejudice the defendants." 487 U.S. at 252.

In answering the prejudice question, the Supreme Court looked at the effect of the 

violations on the decision-making process, rather than considering whether the evidence 

was sufficient without the errors. Specifically, the Supreme Court applied a 

nonconstitutional harmless error standard, which it stated as follows: 

"[T]he District Court had no authority to dismiss the indictment on the basis of 

prosecutorial misconduct absent a finding that petitioners were prejudiced by such 

misconduct. The prejudicial inquiry must focus on whether any violations had an effect 

on the grand jury's decision to indict. If violations did substantially influence this 

decision, or there is grave doubt that the decision to indict was free from such substantial 

influence, the violations cannot be deemed harmless." (Emphasis added.) 487 U.S. at 263. 

Certainly, if nonconstitutional violations cannot be deemed harmless where there 

is grave doubt that the decision to indict was free from the substantial influence of the 

errors, constitutional violations cannot be deemed harmless under that standard. The 

substantial influence of the State's violations is readily apparent in the record before us, 

creating grave doubt about the efficacy of the indictment, i.e., the Bank of Nova Scotia

test has been met in this case.

Although the Court of Appeals applied its own test for prejudice, we nevertheless 

take issue with the panel's rationale for finding no prejudice. For instance, the panel 
32

declared that the alleged errors "occurred as isolated episodes over the course of a 6-

month investigation involving at least 27 witnesses and 97 exhibits." Turner, 45 Kan. 

App. 2d at 761-62. That declaration cannot stand up to closer factual scrutiny. While the 

time span between the grand jury's first meeting on March 5, 2008, and its last meeting 

on August 27, 2008, is almost 6 months on a calendar, the grand jury was in session on 

only 17 days during that time span. In other words, describing the grand jury proceedings 

as a 2 1/2-week investigation appears more accurate than calling it a 6-month 

investigation. And within that shorter time frame, Delaney's erroneous presentation of the 

irrelevant and unnecessary evidence of the unrelated murder case played a relatively 

major role in the proceedings, when compared to the other witnesses and exhibits to 

which the panel alluded. The KBI agent appeared before the grand jury on 10 of the 17 

days it was in session, i.e., over 1/2 of the days the jury met, it was exposed to the 

influence of Delaney. None of the other witnesses came close to dominating the jury's 

time in such a fashion. On 6 of those days in which Delaney testified, i.e., over 1/3 of all 

of the sessions, the KBI agent improperly and unconstitutionally attempted to connect 

Turner to the Thompson murder. "Pervasive" more accurately describes the frequency of 

errors; they were certainly not "isolated."

Moreover, ADA Gray signaled the jury as to the weight it should give to Delaney's 

testimony, as compared to the other witnesses, when she inquired of the agent as follows: 

"Obviously, you have a lot more experience in investigating things than any of us do. 

And obviously, you got a tremendous amount of information that you have been working 

on and a— . . . What would be your suggestion as far as things that we can look into or 

direction that you think that we should take?" Accordingly, the KBI agent's suggestions

that the jurors needed to indict Turner on the false claims and theft charges in order to 

permit the agent to solve a murder case would have been compelling for a lay juror in 

that context. In other words, the errors would have substantially influenced the grand 

jury's decision to indict, if not compel such a result.
33

Against that backdrop, the State's remaining evidence pales in comparison. As the 

panel recited, the State presented witness after witness who testified that they did not 

know what work Turner did for BPU. One suspects that the prosecutors could have 

presented a couple of hundred thousand other people who could have also truthfully 

testified that they did not know what work Turner performed for BPU. To be clear, these 

witnesses did not testify that they had personal knowledge that Turner did not earn the 

amount he billed. They just did not know what he had done to earn it, in contrast to those 

witnesses that had personal knowledge that Turner did perform work for BPU, which the 

panel conveniently overlooked. Those witnesses included Board members John Petty, 

Loretta Colombel, and Mark Jones; Board secretary Terry Edison; chief counsel for the 

Unified Government Hal Walker; and former BPU general manager Leon Daggett, who 

said he could discuss the business he transacted with Turner if BPU waived its 

attorney/client privilege. In sum, the only evidence supporting the indictment was 

Turner's unitemized bills, testimony from certain individuals who were unaware of the 

specific nature of work Turner did for BPU, and witnesses who refused to breach the 

attorney/client privilege in order to answer the grand jury's questions about what work 

was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof 

testimony does not cure or trump the egregious errors visited upon these proceedings that 

polluted the process and denied fundamental fairness.

Consequently, we reverse the Court of Appeals and affirm the district court's 

dismissal of the indictment.

MORITZ, J., not participating.