Child Rapist Goes Back To Trial

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Posted: 8:30 PM Mar 8, 2006
Last Updated: 8:30 PM Mar 8, 2006
Reporter: Jeanene Kiesling

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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.

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Fire Department: Fireworks Are Illegal In Most Of Sedgwick County

Posted By: : Park city looked like the first Iraq war last night!!! It was spectacular,the whole sky was lit up waaayyyy into the night in ALL neighborhoods...like it is EVERY year and did not have ONE incident of a feild or house fire! Sorry you people in Wichita did not get to enjoy! If you're good...we might let you come and see us shoot them next year...but thats only if you're good..kiddys.
Posted By: Stacy: These guidelines are good. However, I'm new to Wichita and I have to say I'm shocked at how many people shoot off fireworks in the city proper and in parking lots of businesses andapartment buildings (like the one I live in). If it's illegal to do this, why on earth is it so commonplace? I was in the military for a few years, about 3 of which were spent in a lot of different areas of the continental U.S., not to mention the nearly 18 years I grew up in mosly Montana. I never before have seen an entire city with so many amateur fireworks displays inside of city limits. Law enforcement, why aren't you enforcing anything?
Posted By: Anonymous: I agree with Frankie although the sedgwick county fire department says they only enforce the law, they pushed for the fireworks ban. I believe the original was in 1978. I know it was after bottle rockets were made illegal in Kansas. I wish government would quit trying to protect us from ourselves, we need protection from them. I'm sure our tax dollars paid for the signs, putting them up, and then for taking them down stuck all over! KAKE needs to go through it's archives and find the original ban the sedgwick county commissioners signed and also read the constitution it says that we have the right to celebrate our independance with fireworks. For those complaining about fires in rural areas I've lived out in rural sedgwick for over 50 years and the instance of a house or wheatfield fire being caused by fireworks is pretty uncommon. It's a sparsely populated area unlike city living and fireworks tend to go up not shoot out for miles. Farmers intentionally light the stubble after harvest!
Posted By: Firefighter: Fireworks were banned in Sedgwick County in 1978. Why? There weren't enough firefighters and equipment to go around. Calls were waiting for a response. Firefighters came to work at 7:00 and didn't see their station until the following morning. There were was much damage to fire equipment. The County department had a tank truck roll. This type of response had been occuring for several years. This doesn't even speak to the damage to stuctures, possesions and the persons that where injured. The departments and civic leaders said enough,and fireworks were banned. Some of you say we are unamerican. Far from the truth. You have asked us to watch after you and assist in the time of need. Sometimes that means prevetion instead of action. I love fireworks as much as the next person. Fireworks have slowly made it back into many communities. If everyone can prove they have self control and caution when using fireworks then, they may come back everywhere. Stay safe this 4th.
Posted By: Anonymous: I guess I'm one of the hundreds of others that did not realize ALL FIREWORKS WERE ILLEGAL! (At least For those of us living outside a city limits in sedgwick county). I knew that while some cities Belle Plaine, Clearwater, Haysville, etc.. chose to allow BIG STUFF (the aerials) Wichita did not. The 78' fireworks ban was for the BIG STUFF!! The unincorporated areas had to follow sedgwick county's allowable fireworks same as the city of wichita chose to do. What year did they sneak in NO FIREWORKS AT ALL OF ANY TYPE for unincorporated sedgwick county?? It wasn't in the original ban. Living outside the city limits of any town, even when ALL FIREWORKS were allowed there were no fireworks stands out here, and the news was saying buy where you live, I called the no fire number for the sedgwick county fire department and asked where we should buy fire works that would be legal and I was told in wichita city limits. This is unconstitutional, prejudiced and segregates rural sedgwick county!!!!
Posted By: George Washington: This is all silly. I am going outside to set off Fireworks.
Posted By: Susan: Ok, I will expect everyone who is upset to show up at the next Sedgwick County council meeting. If you don't even at least call your councilman, than you should not complain.
Posted By: Shaun: I think that people in the county needs to remember that this day is to celebrate or freedom as a country!!! China gave us fireworks to help US and a COUNRTY celebrate. To me this is UNAMERICAN!!! Yes, i agree that the big ones that can set major fires sould probly not be shot in rural areas. And all though this law don't affect me personally, it still does as I am a soldier and an American. I am proud of my country. Even if I could only shoot off fountains or what ever I still think that is better than nothing. As long as the person shooting them off is doing it on a concrete surface I don't see why they can't have small fireworks!!!!!
Posted By: donald otnes: My daughter called me at 10:15 pm on July 2, 2009. She had people setting off fireworks in her housing district. The kids were firing off the ones that sound like a bomb going off. Are people that stupid to let kids have fireworks that could blow up and take a hand off or even there face.
Posted By: miss america: My family is apparently among the wild, irresponsible rednecks in unincorporated Sedgwick county that have shot off fireworks every year on the 4th since I was a baby. It's true there is a need to protect farmers' wheatfields, so I can understand why the county might ban the big fireworks that fly up in the air, and bottle rockets, etc. But, why shouldn't we be able to at least set off the smaller fireworks, such as fountains, that are less dangerous? Why are our families denied the privilege of celebrating the 4th in a safe, fun way just because we live in the unincorporated areas? This fireworks ban on the 4th needs to be loosened up. It's really not fair.
Posted By: a: Think about this people! Fireworks are loud and anoying! I am so sick of people setting them off late at night while we are trying to sleep! My baby is being kept up by fireworks because people set them off at two in the morning!Please just think about where you are setting them off like close to houses and apartment buildings. Those are not good places to be doing them!
Posted By: Firefighters daughter: For those who think that firefighters just "sit around" you obviously have no idea what these people do. Just looking at the 4th, I can recall as a child how we all wondered if my dad would get to finish his hamburger before being called out to yet another of the many fires he went on that day . The work they do isn't restricted to a summer holiday. Think about the gear they wear...heavy coats, boots, air tanks, even on 100 degree days. Take a walk in their boots and face the fires, car accidents, tornado/storms, floods, and other emergencies they must face with courage, calm, and strength in order to save lives and property. As for "washing the truck" and other maintenance that must be done, do you want a rusted out, broken hosed truck showing up at your house because they DIDN't do those things? I hope they do get a chance to relax, eat, sleep, etc. between the emergencies they must face. I want a well rested and ready fire fighter showing up at my house should I ever need one
Posted By: rebecca: hey does anyone know if the little boy that went into QT has been found? I know this isn't the topic but I just wanted to know.
Posted By: : h: I believe that fireworks like Black Cats can be used in Derby as well as Wichita (it's been a long time since I've done any here so I wouldn't definitely know). But they might be setting off something bigger like an M50. The main problems they've had is with the ones that burst into showers of colored balls and sparks like we see in the big displays, roman candles, M80s and the ones that spray out sparks. The Eagle Beacon, last year, said that a good rule of thumb is if they shoot out sparks more than about 6 feet from the device then they are probably illegal.
Posted By: h: well they are sure shooting them in derby and we're in sedgwick county either they are not banned or the police in derby are not doing anything about the ones that are shooting off fireworks already. Frankly I'm sick of it, the neighborhood kids are shooting them off close to my property and my dogs are having fits, a call to the local police dpt says nothing they can do....so if they are banned in sedgwick county then they should be banned in derby and the derby police dpt needs to start enforcing the ban, if they aren't banned in derby then they need to be, there are other ways of having a good time on the 4th of July without having to endanger your yard, my yard, your life!!!!
Posted By: : If everyone was a responible person that means for their self and for the one's that have children, then we wouldn't have had these laws made.The population is so high now that the fire departments are on overload because of the people that will not take responsiblity for their actions.And as far as the fire department setting around!!! Let your house be on fire and then have to wait because these people are not at their work area's because you think they are setting around.I would hate for them to be kept busy 24/7. What would happen to our town without them if that were the case.Already the street that I live on is littered with trash from fire works because people are not responsibly.(not all)
Posted By: D: I completely agree with Anonymous at 9:26. Linda, unless you've been living under a rock, it's been well known for years that fireworks are illegal in the city limits. They make the same announcements every year. They don't sell the "big" illegal fireworks in the city but everyone still goes out of city limits to buy them and then come back home and shoot them off out in the neighborhood streets. I've seen fireworks in my neighborhood that would rival the ones at riverfest and Lawrence Dumont stadium and they aren't legal in the city.
Posted By: : Cliff: That's true but when they are burned off purposely there are fire control measures in place. When someone sets a fire with fireworks they tend to run away and then it gets out of control. Like I said, I've missed work because of people who do this. The reason why they made them illegal in Sedgwick County to begin with is because most people here are not responsible enough to use them safely. And Linda: They've been telling people every year that they are illegal. Most people just don't pay attention. And they only selll fireworks in Wichita that you can set off in Wichita. That's why they've always said "Shoot them where you buy them".
Posted By: Rod: I'm with 'Anonymous on Jul 1, 2009 at 08:08 AM'... Helps us Obama! We need you to protect us from ourselves! ALL PRAISE OBAMA!!!
Posted By: Linda: Ok, for one I think if they were illegal, than why didn't we know about it along time ago. I bet that the majority of the people that lives in Wichita didn't know this, and I think it is not right to start enforcing it NOW, I mean come on the main reason why people shoot of fireworks is for the kids entertainment, Also if its going to be illegal than why on earth should selling fireworks at the stands not be? People see the signs that fireworks are illegal, but when they are driving around wichita and see firework stands it just tempts them that much more. So I think its not right.
Posted By: cliff: anonomous at 8;08, fireworks are a tradition on the fourth of july. and the "tinderbox "harvesed wheat fields are usually burnt off this time of year anyway even without fireworks.
Posted By: : Bottle Rocket Roger: What makes you think being American means you should have the right to set off explosives? For the idiots who think they need to have fireworks: how many of you have to call into work and tell your boss you can't come in because some moron set fire to your house or yard? What about when they go outside the city & set them off in newly harvested wheat fields that are nothing more than tinderboxes at this time of year? Every year for the past six years I've lost pay because idiots cannot control themselves or the fires they set.
Posted By: don: its really sad,,,,we are not hardly even "independent" anymore,,,the government has "used" up all are rights,,,,,like the ol' saying goes though "just be glad your not getting ALL the government you pay for",,,,,period, end of sentence !!!!
Posted By: : Anonymous who is coming down on firefighters and their "lazy days of washing the trucks and sleeping and cooking meals" has no clue what firefighters do and how many calls many of the stations get,though many are medical. Firefighters are not exactly unpatriotic joy-squelchers, but they are supposed to educate the general public about fire safety. If you even understood all the job entailed you wouldn't talk like that.
Posted By: Bottle Rocket Roger: When I lived in a town just north of wichita,we were able to shoot fireworks ALL day long for a week..Park City allows fireworks ALL day long for week,NO problems in either town! We celebrate the 4th like americans in these towns! The people that made fireworks illegal in Wichita and hate the fireworks are ALL UNAMERICAN! Go hide in you're basements and shake like a coward..the M80's are coming!
Posted By: : We need two things immediately. One, a petition to remove this descriminatory 1978 law against residents of the county, and secondly, another petition to remove the authors of this law if they are still in office, and any other person in authority that supports it. I'll drive any distance to sign those petitions. Our tax dollars were used to print and post these signs and will also be used again to remove them, and patrol neighborhoods looking for little kids shooting ladyfinger firecrackers. This travesty of the use of our tax dollars must be exposed with those that have attacked Independence Day.
Posted By: Bob: Enforce the law! Many firewoks are dangerous, destructive, and disturbing--especially to pets.
Posted By: : I never knew there were so many un-educated people around the state. It even says in the text of the story, that the fire department is not going to be doing extra patrolling, due to staffing. People are very careless with their fireworks in the "uncorperated" area's of the county. You add wind, and some dry wood, or brush.. And you cause a very dangerous situation, and put those "poorly staffed" fire deparments that respond in danger. ****If you live in a town/city in "sedgwick County".. you need to check your local laws. The no fireworks law - is for "uncorprated" - aka *NOT IN CITY LIMITS*
Posted By: Michelle: Can't we come to a compromise? Make them illigal everyday of the year, except the 4th? I agree with the ones on here that said we are celebrating our FREEDOM! This is what the USA is about. Hotdogs, baseball and fireworks! 8-)
Posted By: Kristy: "But many like Sedgwick County Resident Michael Dixson don't plan on breaking the law." Seriously - someone who writes for a news station should be familiar with proper grammar usage.
Posted By: : How ironic it is that it's Independance Day however; they tell you that you can't fire off any fireworks.....at least any that are worth paying money for. Yes, we're slowly on our way to becoming a communist country. I miss Archie Bunker!
Posted By: : Why even celebrate??? Pretty sad when Amerians can't participate in the tradation and celebration of America's Indepandance. I feel for you rual Sedwick County people. Sedwick County SUCKS!!
Posted By: Tim: The Fire Department IS NOT encouraging people to call 911 every time they see people shooting fireworks, this will create an unnecessary strain on the 911 system. The problem is being worked on and will take time to get things all straightened out. If you have an emergency or a problem that warrants calling 911 by all means call 911. What is not needed is a call to 911 every time you see someone shooting a firecracker.
Posted By: : The fire departments are going out of their way with NO FIREWORKS signs just because they don't want to have to work any more than they have to. Little fire here and there disrupts their lazy days of washing the trucks and sleeping and cooking meals!
Posted By: topper: at one time you couldn't shoot fire works in dodge, now that we can the 2nd through the 5th i think. i havent heard of more fires or whatever it is you think is going to happen if you were to allow.. its the 4th of july, and you stoping people from celebrating. thats dumb if you ask me. besides, people are going to shoot them off no matter what you do.
Posted By: Frankie: The Fire Department says it only enforces the law against fireworks in Sedgwick County, but I've lived here since 1938 and I remember that it was the Sedgwick County Fire Department that pushed for the County Commissioners to pass the illegal fireworks law.
Posted By: anoymous: It is a little confusing, because Park City has fireworks tents all over, but I thought Bel Aire and Park City were actually their own "cities", and not part of unincorporated Sedgwick County. And they are allowed in Goddard,I checked out the website. I wish there was a central list posted where they are legal/illegal, because I do think there is confusion about this, especially when I thought I heard people in Bel Aire saying they purchased permits in the past. Can anyone elaborate?
Posted By: Debby: If they are illegal why are they sold in the city where they are illegal?
Posted By: : Isn't it funny how it's called Independance Day but yet big brother wants to tell us we can't shoot fireworks? Screw you big brother!! I'm firing mine off!!
Posted By: Elmer: I saw on the news that you are asking the neighbors to report the people who are using fireworks to the police. Hitler did the same thing when enforcing his laws. Are we coming closer to socialist government, or are you just trying to create a community that is untenable due to loss of trust in neighbors? I can't believe we are repeating history again.
Posted By: bob: i think the county is forgetting what we are celebrating, our independence. so they should let us shoot them where you buy them.
Posted By: Justin: Land of the Free, My hind end. Restrictions yes, understandable. But, all out ban? This is not the America I fought for!!!!! Maybe before long we won't have any independence to celebrate!!! And I'm sure the fire fighters are just having to do what there told. Heck, most of them love fire or they wouldn't be doing there job.
Posted By: : "fire dept only enforces the law" im sure they had a say in how it was created. thats like saying police dont have a quota when writing tickets when im sure they do. how else are police measured when trying for promotions and raises--its by how many tickets they write, how many crimes they solve, ect. people are gonna shoot off fireworks and worry bout what happens later because this is the one time in the year that we get to do so! plus it helps celebrate america's birthday !!
Posted By: Mikea: I sure wish there was something we could do about the rednecks who insist on setting off the big heavy skybursts in our neighborhood at 1am every night. Fireworks should be illegal inside the city. Loud car radios are, and fireworks are more dangerous.
Posted By: Bob: Ok maybe this is a stupid question, but what is unincorporated Sedgwick County? What is meant by that?
Posted By: AJ Simkatu: Everyone knows that fireworks that go up in the sky are illegal, even in the city of Wichita. The problem is that nobody cares. Most people think the ban is a ridiculous overreaction to a small problem. People are sick of the nanny state telling us what we can and can't do with our own lives and property. What's next, ban skydiving, skiing, riding dirt bikes, mountain climbing? The government needs to mind its own business and stay out of ours.

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