## Facts

- Larry K. Butcher was charged in Kentucky state court with multiple sex offenses involving his minor stepdaughter, H.B., including first-degree rape, first-degree sodomy, and first-degree sexual abuse; he was also charged with incest.
- Evidence at trial described a course of sexual abuse beginning when H.B. was about ten years old and continuing for several years.
- H.B. became pregnant as a teenager and later gave birth. The prosecution offered genetic/paternity evidence to support that Butcher fathered the child, which in turn supported proof of sexual intercourse.
- The prosecution presented an expert who explained the test results using a paternity index and a “prior probability” of 0.5 (a 50% baseline assumption commonly used to convert the index into a percentage).
- Using that assumption, the expert reported a probability of paternity of 99.74% and explained the statistic to the jury.
- Butcher objected that the 0.5 prior probability assumed the very fact the test was offered to prove (that he had sexual intercourse with H.B.), and that the statistic risked lowering the Commonwealth’s burden below proof beyond a reasonable doubt.
- The trial court admitted the evidence. The jury convicted Butcher of multiple counts of rape, sodomy, and sexual abuse, and acquitted him of incest. The court imposed concurrent sentences totaling 40 years.
- Butcher appealed to the Supreme Court of Kentucky “as a matter of right,” raising (1) judicial disqualification based on an alleged family relationship between the judge and the prosecutor, (2) due-process objections to the paternity statistic and its assumptions, and (3) claims that the prosecutor’s closing argument misstated the meaning of the paternity probability.

## Issues

1. Whether the trial judge was required to disqualify himself under KRS 26A.015(2)(d) because of an alleged family relationship to the prosecutor.
2. Whether admitting paternity/DNA probability evidence calculated using a 0.5 “prior probability” violated due process by effectively reducing the Commonwealth’s burden to prove guilt beyond a reasonable doubt.
3. Whether the prosecutor’s closing argument about the paternity probability improperly suggested a civil standard or otherwise misled the jury, requiring reversal.

## Decision

- The court held the trial judge was not required to recuse on the showing made and that denying the disqualification request was not reversible error.
- The court rejected the claim that the 0.5 prior probability and the resulting “probability of paternity” statistic reduced the burden of proof or denied due process; admission of the evidence was not reversible error and did not amount to palpable error.
- The court found no reversible error, and no palpable error, in the prosecutor’s closing argument regarding the paternity figures when considered in context of the whole trial and the court’s instructions.
- The Supreme Court of Kentucky affirmed Butcher’s convictions and sentence.

## Legal Principles

- A Kentucky judge must disqualify himself in a proceeding when the judge (or the judge’s spouse), or a person within the third degree of relationship to either, or the spouse of such person, is acting as a lawyer in the proceeding. KRS 26A.015(2)(d).
- When an alleged ground for disqualification is disputed or not supported by a sufficient record, the appellate court reviews the denial of recusal for error based on the statutory standard and the facts established.
- The Commonwealth’s burden in a criminal case remains proof beyond a reasonable doubt as set by the jury instructions; admission of scientific or statistical evidence does not change that legal standard.
- DNA/paternity-related statistics may be admitted when presented through qualified testimony and explained so the jury can evaluate what the numbers mean and do not mean; the statistic is evidence to weigh, not a legal presumption of guilt.
- Claims not preserved by contemporaneous objection are reviewed in Kentucky for “palpable error” under RCr 10.26, requiring a showing that the error affected substantial rights and resulted in manifest injustice.
- Counsel are allowed wide latitude in closing argument; reversal is warranted only when improper argument, viewed in context of the full record and instructions, undermines the fairness of the trial.

## Conclusion

In *Butcher v. Kentucky*, the Kentucky Supreme Court affirmed convictions and a 40-year concurrent sentence for multiple sex offenses against a minor, holding that the trial judge’s refusal to recuse was not reversible error, that admission of DNA/paternity probability evidence calculated with a 0.5 prior probability did not violate due process or lessen the beyond-a-reasonable-doubt burden, and that the prosecutor’s closing argument about the paternity figures did not warrant reversal under preserved-error or palpable-error review.


Butcher v. Kentucky, 96 S.W.3d 3 (2002)