State Fair Rapist

Mar. 8-It was an unimaginable crime.

A 2 year old raped and sodomized at the State Fair.

Now the man convicted of the crime has a chance to get out of prison after a new trial was granted.

The alleged victim in the case was 2 at the time and is now 14 years old.

The Attorney General's office will lead the prosecution for the state to try and send Herbert Downey to prison.

In 1994, the 2 year old girl was raped and sodomized at the Kansas State Fair..

Herbert Downey was a carnival worker.

Months later Downey was arrested for violating his probation on a sexual assault case out of New York.

During the arrest, Downey admitted he'd sexually assaulted the baby girl.

And authorities found graphic sexual photos of a man with the victim, but the man's face was not visible.

It took several years for the case to go to trial.

Downey's attorney wanted the photos and Downey's admissions thrown out of court.

Pratt County Judge Robert Schmeisser was hearing the case and denied both motions,

That's when Downey's attorney told him Downey had little chance to win a jury trial and his best bet was a bench trial where he'd likely be sentenced to about 20 years tops.

But Judge Schmisser made a mistake at sentencing and used the wrong guidelines... Sentencing Downey to twice what was allowed by law and opening the door for an appeal.

Downey did appeal his sentence and he asked for a new trial..

The Court of Appeals ordered a re sentence, but denied a new trial..

This time around Downey was sentenced to 20 years.

From there, the case would be tied up in the Court of Appeals system for the next couple of years.

But, eventually Downey won the right to a new trial.

This time jurors will decide his fate.

Once again Judge Robert Schmeisser will hear the case.

This time around the judge is refusing to allow cameras into the courtroom to cover the case..

The state hopes to begin opening arguments Thursday morning.