County attorney races

Here is a Hutch News article reporting on several county attorney races around the state, including PD Lynn Koehn running for Haskell County Attorney. If you have any other info about interesting prosecutorial races, please comment--especially if they involve criminal defense attorneys.

New blog on juvenile right to a jury trial

Paul Shipp, who recently won in In re L.M., (as blogged about here) establishing the right to a jury trial for juvenile defendants in Kansas, has apparently gotten a lot of questions and decided to start a blog to help foster discussion. Give it a look. It is called Inrelm and it includes links to download all of the briefs and pleadings from the case. And it invites readers to comment on possible applications or other issues stemming from the case.

Maybe this can be the start of a Kansas juvenile law type blog. (Although I don't think Paul is doing a lot of juvenile cases any more!).

Don't argue with yourself [NOT FINAL]

Monique K. Centeno, Lawrence W. Williamson, Jr., and Sean Shores won in State v. Toney, No. 97,326 (Kan App. July 11, 2008), remanding for a new hearing on Mr. Toney's motion to withdraw his plea in a Sedgwick County burglary prosecution. The claim on appeal was that Mr. Toney's attorney at his hearing on his motion to withdraw his plea was the subject of the motion itself. The COA agreed that the situation was likely to cause a conflict of interest:

[W]e are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.

In the present case, Toney's public defender candidly acknowledged her conflict to the district court. The prosecutor concurred with this assessment on the additional ground that both the chief public defender and the public defender would be necessary witnesses in support of Toney's claim. This situation could implicate ethical considerations.

We are persuaded that the subject matter of Toney's legal argument and his public defender's in-court acknowledgment of divided loyalties were sufficient to establish a conflict of interest at the time of the hearing on the motion to withdraw plea.

The COA went on to consider whether it should reverse:

The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.
In the present case, Toney's public defender had an admitted concern about having a conflict of interest which resulted in her failure to present evidence and to advocate in support of Toney's motion to withdraw plea. As a consequence, her conflicted representation necessarily undermined any possibility that Toney's motion would be successful. Under these circumstances, we hold the divided loyalties of Toney's public defender adversely affected her performance as Toney's counsel and created an actual conflict of interest.

Here is coverage on the Legal Professon Blog, and here is coverage at Law of Criminal Defense. This is an interesting issue with several even more interesting permutations.

We frequently have cases where we have had a client on appeal before and worry about the possibility that we could have to argue our own IAC in order to raise an issue in a subsequent appeal. In fact, it is one of the main reasons that we seek to withdraw from cases. The COA opinion certainly supports that position.

One issue I would have with the COA's opinion is the idea that an attorney is required to or encouraged to "defend herself against Toney's allegations of ineffectiveness." We frequently enounter defense attorneys (mostly private counsel, but not exclusively) in district court who are quite "defensive" when it comes to a claim of IAC. But I don't think that the attorney is a party to an IAC claim--it is client versus the state. In a malpractice claim or an ethical charge, the attorney is directly affected by the clients claim and therefore is entitled to defend without limitation. But in an IAC claim the attorney is at most a witness. I think the COA reaches the right conclusion, but maybe for (in part) the wrong reason.

I have been somewhat appalled at times to have defense attorneys resist an IAC investigation on the grounds that it might be "setting them up" for a malpractice claim or an ethical charge. And I have even gone to IAC hearings in district court and seen defense attorneys "strategizing" with the prosecutor prior to the hearing. Don't we have a continuing duy of loyalty to these clients? Are we entitled to totally disregard that duty just because the client seeks habeas relief? Obviously, we can't lie or obstruct in habeas proceedings. On the other hand, it seems contrary to our duty to our fomer client to actively work against their interests in the habeas proceeding. I've never felt like I was obstructing when I refused to help a prosecutor who was trying to get me to rat out my client in a habeas proceeding.

Don't get me wrong. I don't like it when I am accused of IAC and I like it even less when I provided IAC. But I would rather fix it than hide it.

Although there could be overlap between IAC, ethical considerations, and malpractice liability, I don't think one necessarily or even usually follows the other. I have raised literally hundereds of IAC claims on appeal (if you include Ortiz type issues, then it would be several hundred), but have never reported a defense attorney for unethical conduct. And I have been found ineffective (see here) and did not self report. I just think the issues are quite separate.

Perhaps some of my private counsel colleagues can take the counter-point here. I am admittedly ignorant of some of the realities of the world of private practice. Does an IAC finding affect your malpractice rates? Does an IAC finding so negatively impact your reputation that you feel it necessary to advocate against your client in a habeas proceeding?

Fifteen apply for Dowd's seat

Here is a Topeka Capital-Journal article reporting that fifteen applied for the district judge vacancy to be created by Judge Dowd's upcoming retirement. The list includes the attorneys who were on the most recent short list blogged about here. If you have comments that would be useful to the nominating commission, get them in soon.

Of the fifteen that applied, two work at the district attorneys office and two work at the attorney general's office (one appellate and one civil). As far as I know, none of these lawyers are full-time (or most time) criminal defense attorneys.

[Update: here is a Topeka Capital-Journal article reporting on the interviews that took place for this vacancy].

Limits on candor to court

Patrick Dunn won in State v. Hemphill, Nos. 95,209 and 95,210 (Kan. July 3, 2008). The KSC reversed the district court's denial of Hemphill's motions to appeal out of time (one for his sentence and one for his motion to withdraw his plea). The KSC ordered a new plea withdrawal hearing under Kargus v. State and ordered an Ortiz hearing regarding Hemphill’s failure to timely appeal his sentence. Here is a Hutchinson News article reporting the case.

Whether Mr. Hemphill was entitled to late direct appeal under Ortiz

The KSC affirmed the portion of the COA’s decision remanding for an Ortiz hearing regarding the direct appeal of his sentence. The KSC noted that both the district court and appointed counsel had a statutory duty to inform Mr. Hemphill of his right to appeal. The court held that nothing in the record showed that Mr. Hemphill was advised of the right to appeal his sentence, and thus, "a substantial question of fact exists as to whether Hemphill should be allowed a direct appeal out of time pursuant to Ortiz." The court remanded the case for an Ortiz hearing.

New hearing on motion to withdraw plea

The KSC also ordered a new hearing on Mr. Hemphill’s motion to withdraw his plea (reversing the COA), holding: “we cannot agree with the [COA']s treatment of the defendant's attempted appeal from denial of his motion to withdraw his pleas of no contest, nor are we able to resolve this issue on the basis of harmless error.”

The court summarized the facts surrounding the motion to withdraw the plea:

The district court appointed counsel to represent the defendant, held a hearing on these motions on July 23, 2004, and denied relief to the defendant. At the hearing, defendant's appointed counsel told the court that he did not believe that his client's motions had merit and explained why he felt this way. He then requested that the district court allow the defendant to stand up and make his own argument.

Addressing the court, Hemphill stated that he did not know what to argue and stated that his arguments were contained in the motion. When asked by the trial court whether he had anything to add, the defendant replied, "I don't know what I have to say. I really don't have know how to go about this." He then stated, "I thought I was going to have somebody to represent me. I really don't know what to say." There is no mention of the defendant's appellate rights in the hearing transcript.

The court noted that Hemphill was entitled to a new plea withdrawal hearing under Kargus, instead of under Ortiz:

Our review of the arguments and record demonstrate that although the district court did not have a statutory duty to inform Hemphill of his right to appeal the denial of his motion to withdraw his no contest pleas, his attorney's failure to inform him of his right to an appeal denied him the right to that proceeding. We further conclude, based on the record before us, that the attorney appointed to represent the defendant regarding the motion to withdraw his pleas not only failed to inform the defendant of the right to appeal, but completely abandoned his role as counsel during the hearing on that motion. Because the representation provided by defendant's appointed counsel was egregiously ineffective and highly prejudicial, we conclude it is necessary to remand the case for a new hearing on Hemphill's motion to withdraw his pleas.

Right to attorney in post-conviction proceedings

The KSC also reiterated that criminal defendants should be represented by counsel in post-conviction hearings when the state is represented by counsel:

Because this case is being remanded for additional proceedings, however, we emphasize our previous holdings that even though a court need not automatically hold a hearing or appoint counsel in all post-conviction matters, when a hearing is held "at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel." This procedure was not followed during the hearings on the defendant's motions to appeal out of time.

Inconsistent verdicts?

I noted that the Maryland Court of Appeals recently abandoned its long-standing common law precedent allowing inconsistent verdicts in criminal cases. In Price v. State, the Maryland high court acknowledged that many other jurisdictions permit such verdicts and that it had long allowed such verdicts. But it also noted that it had narrowed the acceptance somewhat over the years, for example, by disallowing inconsistent verdicts in bench trials. The Maryland court also relied heavily on the fact that it had disallowed inconsistent verdicts in civil cases:

As previously pointed out, this Court emphasized that “the consistency requirements in criminal cases” should not “be less stringent than the standards we have applied in civil cases,” and that we are “unwilling to afford less protection to the jury trial rights of a criminal defendant, whose very liberty, or even his or her life, is at stake, than to a civil litigant, where, generally, it is money that is at stake.” To uphold, in the present case, the inconsistent jury verdict of guilty on the count charging possession of a firearm during a drug trafficking crime, would be to repudiate the principles recently set forth.

So, what difference does this make in Kansas? None, maybe. I recognize that as recently as 2007, the KSC has reiterated its long standing rule tolerating inconsistent verdicts. See here. Well, like Maryland, Kansas also prohibits inconsistent verdicts in civil cases. See McDonnell v. Music Stand, Inc., 20 Kan. App. 2d 287, 886 P.2d 895 (1994). And Kansas courts have prohibited inconsistent verdicts in bench trials, see State v. Meyer, 17 Kan. App. 2d 59, 832 P.2d 357 (1992), and have reduced charges based on an acquittal in one count that would be inconsistent with the sole aggravating fact in another count, see State v. Davis, 275 Kan. 107, 61 P.3d 701 (2003). Many of the reasons that persuaded the Maryland high court would apply here. And as the Maryland high court expressed, the rule allowing inconsistent verdicts is hardly universal.

Mainly, this is just an example of a trial attorney that, even in the face of long-standing precedent, made an objection anyway. I know that my knee-jerk reaction to an inconsistent verdict would be "So what? That's okay under Kansas law!" But Price's attorney didn't say "So what?" and it made all the difference. Challenges like this are quite difficult when brought for the first time on appeal. So, if you have a weird felony murder case or some other case that results in verdicts that cannot be reconciled, go ahead and move for dismissal! And how many other "long-standing" rules need to be revisited? Any suggestions?

Out with the new, in with the old

I guess I knew that when somebody takes the Colorado Bar Exam, it's probably not to enhance her resume at the ADO.

Sarah Morrison left the ADO late last month to move to Colorado to join a small firm there. A lot of Sarah's family is in the Denver area, so it really wasn't a big surprise. But sad nonetheless. Sarah just got a win in State v. Gore, reversing an aggravated criminal sodomy conviction on statutory speedy trial grounds.

The silver lining is that Sarah's departure made room for the return of Heather Cessna. Heather left in December 2006 (as blogged about here) and has been in private practice about a year and a half. But as many people (myself included) learn, practicing law at the ADO is a pretty good gig (assuming you like sitting in an office, reading transcripts, researching, and writing all day). For the few, the proud, the geeky, it's just write. So, welcome back Heather. (Ironically, she moved back into the exact same office she left 18 months ago!).

Murder conviction reversed for failure to give lesser

Janine Cox won in State v. Scaife, No. 97,183 (Kan. July 3, 2008), getting a new trial in a Wyandotte County premeditated murder case (the KSC affirmed convictions for attempted first-degree murder and aggravated robbery). The prosecution was a "combined" premeditated/felony murder case. The district court wouldn't give a lesser for second-degree because of the felony murder allegation.

The district court did note that if the sole charge in the complaint had been premeditated first-degree murder, a lesser included instruction on second-degree murder would have been appropriate. We need not discuss whether lesser included instructions were appropriate on the alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the evidence introduced against the defendant is wholly circumstantial and open to an inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that lesser degree of homicide.

The State suggests that Ross' eyewitness testimony provided direct evidence of premeditation. However, nothing that Ross saw or heard directly proves the fact which is in issue, i.e., premeditation. One must take the additional step of drawing inferences from the eyewitness' description of what Scaife did and said (or did not say) to speculate as to what Scaife must have been thinking and how long he had been thinking it before pulling the trigger. Although admittedly infrequent, direct evidence of premeditation does exist in some cases. An associate might testify that the defendant shared his or her plans to kill the victim or a cellmate might relate how the defendant bragged about his or her daring deed. Sometimes, a defendant will have previously threatened to kill the particular victim. A shooter might declare, immediately prior to pulling the trigger, "This is for cheating me out of my money (or drugs)." However, we need not quibble about whether direct evidence of premeditation can ever exist. Suffice it to say that in this case, there was no direct evidence of premeditation.

Nevertheless, premeditation may be, and is most often, proved by circumstantial evidence. As we determined above, the circumstances of this case could be sufficient to prove premeditation. On the other hand, Scaife's sudden, unprovoked, and inexplicable shooting of Thompson, performed without uttering a word, could indicate to a rational jury that the killing was nothing more than an instantaneous, intentional act.

So the majority says Mr. Scaife gets a new trial on premeditated first-degree murder. This is good language for lesser-included offense instruction in other contexts as well.

As an aside, the majority also made an interesting note in response to the state's argument that the instructions would just be too confusing:

The State makes a practical argument that the giving of lesser included offense instructions where first-degree murder is charged and instructed on the alternative theories of premeditation and felony murder would be too confusing for the jury. One might perceive that any confusion in that circumstance emanates from the curious rule that permits a jury to convict on a combination of the premeditated and felony-murder theories. Nevertheless, while drafting an appropriate jury instruction may require some careful consideration, that fact cannot dictate against giving a criminal defendant the benefit of lesser included offense instructions, i.e., to allow the jury to convict a defendant of the crime actually committed.

We have been arguing for a while that the "combined theory" is antiquated and certainly doesn't fit the strict elements type analysis that we have gotten in other lesser-included offense and multiplicity cases. Keep objecting to this type of prosecution. There is no reason these offenses can't be charged and prosecuted in the alternative, eliminating any possible confusion.

Involuntary statements

Pantaleon Florez, Jr. won in State v. Karin Morton, No. 97,848 (Kan. July 3, 2008), affirming Judge James Smith's suppression of statements in a Franklin County making a false information prosecution. The KSC affirmed the COA's holding that Ms. Morton was not in custody and therefore there was no Miranda violation. But the KSC went on to analyze what the COA didn't, whether the statements were voluntary:

The agent's undisclosed purpose for the interview, Morton's subjective beliefs about the civil nature of the interview, and the agent's comment about the need for an attorney are not relevant to the issue of whether Morton was "in custody" for purposes of Miranda. These circumstances may nevertheless be relevant to a claim that her statements were inadmissible under the due process voluntariness standard. In this case, it appears the district court determined that the agent's conduct was fundamentally unfair and, thus, Morton's statements were not voluntary.

. . . .

In this case, the district court found the agent's conduct to be unfair because, while Morton believed the criminal investigation had ended with no charges to be filed, the purpose of the agent's interview was to further the criminal investigation and encourage the filing of charges by providing additional information to the county attorney. Additionally, Morton argues that the agent's comment that she did not need an attorney because it was not that kind of interview was fundamentally unfair. Consequently, the issue concerns the extent to which the officer's conduct was unfair and, thus, rendered Morton's statements involuntary.

We have held that false statements to a suspect about the strength of the evidence do not, by themselves, render the suspect's confession involuntary. Rather, they must be viewed in conjunction with the totality of the circumstances surrounding the confession to determine whether it was voluntarily made.

While telling a suspect false information about the evidence against the suspect, standing alone, does not render a confession involuntary, giving the suspect false or misleading information about the law is more problematic.

. . . .

[The agent], however, did not tell Morton she had no right to have an attorney present, he told her she did not need an attorney. In asking the agent whether she needed a lawyer present, Morton was clearly trying to determine whether the interview was part of the criminal investigation. Of course, the agent knew it was. We note that, as a government agent for an agency with both civil and criminal investigative power, the criminal investigatory purpose of the agent's interview was not obvious in the way an interview conducted by police officers and detectives is. Under these circumstances, we conclude the agent's response to Morton's question was an affirmative misrepresentation about the true nature of the interview.

. . . .

All other aspects of the circumstances surrounding this interview indicate that Morton's statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time. However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known [the agent] was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent's status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent's conduct, Morton's participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton's statements were involuntary and, thus, inadmissible.

So when officers step over the line and mislead suspects regarding the law, that's too far, even when there are a lot of other facts that would support a voluntariness finding. [Of course, I think misleading on evidence should be just as problematic--why should law enforcement be the only people who have a license to defraud?]

District judge accused of sexual misconduct

Here is a Lawrence Journal-World article reporting that District Judge Frederick Stewart, from Leavenworth County is facing disciplinary charges stemming from alleged sexual misconduct with a member of his staff.

No true bill

Here is a Wichita Eagle article reporting that the grand jury investigating abortion crimes in Sedgwick County returned no true bill. Remember that a Johnson County grand jury already reached a similar result earlier this year (as blogged about here). I wonder if this will temper the ad hoc grand jury movement we have seen in the last couple of years. Probably not. The number of signatures needed is pretty low and not difficult for special interests to meet.

IAC in murder case

Jean Gilles Phillips and student interns Ashley Epperly and Sarah Pfieffer at the KU Defender Project won in Bledsoe v. Bruce, No. 07-3070-RDR (D. Kan. June 23, 2008), a federal 2254 petition. Mr. Bledsoe's murder conviction was affirmed by the KSC (here) in 2002 and denial of his 1507 motion claiming IAC was affirmed by the KSC (here) in 2007. But Judge Rogers granted a new trial based on ineffective assistance of counsel holding that the KSC's previous rejection of the claim was "objectively unreasonable."

The Kansas Supreme Court did not address this topic in any detail, only stating that it was adopting the “district court’s determination that [petitioner] fails to meet his burden to show that [his counsel’s] representation was constitutionally deficient on this point.” The district court rejected petitioner’s argument on the grounds that an objection “would have been overruled because it is not a statement of fact by Catherine, it is merely her testimony concerning her conversation with the Petitioner.”

The court does not believe the state supreme court’s holding on this point was objectively reasonable. The law is clear in Kansas that a witness may not express an opinion on the credibility of another witness. This rule applies even if the opinion of another witness’ credibility is asked for indirectly. Thus, for instance, it was improper to ask a nurse whether it appeared that an alleged victim of sexual abuse had been coached. It was also held to be improper for a detective to testify that other suspects in a murder case were “honest.” Even expert witnesses with experience in interviewing people, such as psychologists and police witnesses, may not render an opinion on a witness’ credibility.

Petitioner does not argue that petitioner’s part of the conversation with Catherine Bledsoe was inadmissible and, therefore, we assume that it was admissible.

For the following reasons, we find the state court’s position on this evidence objectively unreasonable. The state court indicates that Catherine Bledsoe’s statement that “I know Tom didn’t do it” was just context for petitioner’s statement that “Tom didn’t do it.” However, Mrs. Bledsoe could have explained that petitioner told her that “Tom didn’t do it, somebody else did it” during a phone call from jail without adding her own extraneous part of the conversation. It was not important to understanding what petitioner said. Moreover, it was not argued by the prosecutor as context. It was argued as direct evidence that Tom did not commit the crime and, therefore, that petitioner did. In addition, even if it was context, it was so prejudicial for the jury to hear the credibility call of a mother in a swearing match between two brothers, that its prejudicial impact outweighed its contextual value. Finally, there was no attempt by the attorneys or the trial judge to limit how the jury would consider the testimony by petitioner’s mother that “Tom didn’t do it.” The jury was implored to consider that “Mom” told you what happened when she said that “Tom didn’t do it.”

The court shall consider the issue of prejudice from the failure to object to Catherine Bledsoe’s “Tom didn’t do it” statement, along with petitioner’s contention that the cumulative prejudice from all of his counsel’s errors requires that the court grant his habeas petition. The prosecutor in this case argued in closing that Cody, Mom (Catherine Bledsoe), and petitioner explained that petitioner was guilty of the crime charged. But for the mistakes of petitioner’s trial counsel, the prosecutor could not have referred to Cody’s alleged eyewitness statement or Mom’s judgment that Tom Bledsoe did not commit the crime and, inferentially, was a credible witness. Without this evidence and without any physical evidence pointing to petitioner, the case against petitioner would largely boil down to Tom’s claim that petitioner confessed to him. In the absence of the previously described errors of counsel and Catherine Bledsoe’s “Tom didn’t do it” testimony, there is a reasonable probability that a jury would not believe Tom’s testimony and find that petitioner was not guilty.

Nice job to state habeas counsel, Richard Ney, for litigating and preserving the issue well for federal review.