Hutch man convicted twice in child sex case seeks relief in civil motions.


Hutch man convicted twice in child sex case seeks relief in civil motions/Gough 11/29/2010

A man serving time for a 1994 case involving child sex was back in court Monday morning on an amended Habeas Corpus or civil motion.

In the amended motion, Herbert Downey Jr., alleges ineffective counsel. That was denied this morning by Judge Richard Rome. But, the judge allowed a continuance on the original Habeas Corpus motion where he alleges his speedy trial rights were violated, and that the judge erred when he sentenced him to the aggravated number of months in prison in the grid box.

Downey lost his appeal in the case on January 11, 2008, when the Kansas Court of Appeals affirmed the rape and aggravated criminal sodomy convictions. Downey was sentenced to serve a term of 202-months in prison. This sentence was ordered to be served consecutively to a New York conviction.

That had been his fifth appeal in the case. Downey was originally convicted of the crimes following a trial held on April 20, 1998. On August 22, 2003, his convictions were vacated by a District Court Judge and a re-trial ordered.

The convictions stemmed from the rape and sodomy of a 2 ½- year-old girl at the Kansas State Fair in September, 1994. Downey had photographed himself in sexual positions with the child. The photographs were discovered by law enforcement officers in Florida when they arrested Downey on a New York warrant.

Deputy District Attorney Tom Stanton says he expects to argue that the original Habeas Corpus motion should also be dismissed within the next 10-days.