Wednesday, December 27, 2006

Recent SCOTUS filing

Heather Cessna and I recently filed a cert petition in State v. Blanchette, a COA case holding that face-to-face Confrontation can be dispensed with under certain circumstances involving child witnesses. The COA held that the issue is governed by Maryland v. Craig, 497 U.S. 836 (1990), in which the SCOUTS did uphold such a statute by a 5-4 majority. We argued (both at the COA and now at the SCOTUS) that Maryland v. Craig was overruled by Crawford v. Washington. As Heather pointed out, if you read Scalia's dissent in Craig, it really reads like the Crawford majority opinion--the reasoning of the Craig majority is really based on Ohio v. Roberts, which is dead after Crawford. We'll keep you update in case the unlikely happens.

[Update: the SCOTUS denied the cert petition on February 20, 2007. Too bad, this will be a recurring issue]

Friday, December 22, 2006

Reno County PDs get into the holiday spirit

Here is a funny Hutch News article reporting about the Reno County PDs singing the season (humorously) down at the courthouse. Makes me wish I was home for Christmas!

Thursday, December 21, 2006

New judge in Topeka

Here is the governor's press release announcing that Larry Hendricks has been appointed to fill the vacancy to be created by District Judge Bullock. Here is the Topeka Capital-Journal article reporting on the appointment.

Wednesday, December 20, 2006

Salina acquittal

Paul Hickman won a judgment of acquittal in State v. Nava, ending a Saline County felony DUI prosecution. Similar to the last post, the state failed to provide sufficient evidence of where the crime occurred and so at the close of the state's jury trial case, Judge Hellmer granted Paul's motion for judgment of acquittal. Remember three words: location, location, location.

Tuesday, December 19, 2006

Topeka acquittal

Jennifer Roth just called and reported that she won an acquittal in State v. Lee, a Shawnee County forgery (by endorsement) prosecution. Although the jury apparently believed that Ms. Lee falsely endorsed the check, it found that the state failed to prove the check was endorsed in Shawnee County! Because the state failed to prove one of the elements--acquittal!

Friday, December 15, 2006

New district judge in Emporia

Here is an Emporia Gazette article reporting that Jeffrey Larson has been appointed district judge for the Fifth Judicial District, replacing retiring District Judge John Sanderson. Here is the governor's press release.

[Update: Here is an Emporia Gazette article reporting on Judge Larson's investiture.]

Another Wichita verdict

Mark Orr won a misdemeanor battery conviction in State v. Hardyway, a Sedgwick County severity level 7 agg battery prosecution. Here is his report:

Client charged with Agg. Batt. 7 for choking, slamming victim to ground repeatedly, putting her head through drywall in garage, hitting, kicking. Defense was that she was making it up. We called victim's mother and she testified that she was over at daughter/victims within 15 minutes of attack, and victim appeared to be sleepy, not upset or crying, no marks on her. Over my objection, court instructed on Agg Batt 7 intentional and lessers of Agg Batt 8, reckless and then misdemeanor battery. Only jury question was "Was there any evidence presented putting the defendant at the scene, other than the testimony of the victim." In spite of that, convicted on Misdemeanor Battery.

Verdicts in Topeka

Scott Gesner reports that he got an acquittal this week in State v. Holloman, a Shawnee County prosecution for criminal possession of a firearm (judgment of acquittal) and criminal discharge of a firearm at an occupied vehicle (jury acquittal): "Alibi case with some very sloppy police work and some good arguments for reasonable doubt." He also reports they have had several suppression motions granted recently! Good job at the Third!

Wednesday, December 13, 2006

Acquittal in Wichita

John Sullivan, a Wichita PD, won an acquittal in State v. Nelsen, a Sedgwick County burglary/theft conviction. Here is his report:

Client was charged with burglary, theft, and misdemeanor possession of clonazapem. Back in October of 05, he was at a family party. His dad thought he was acting funny so they left and went to client's brother's house. Dad goes back to the party. At about 10 pm, Dad comes back and client is gone. No one knows where he went. At about 2 am, the alarm goes off at a Mortgage Broker's office. Twenty minutes later, the cops show up and find a broken window. They go in and find client hiding under a desk in the dark. He's got a highlighter, a computer memory chip, and a bottle of finger polish on him. He has a receipt from Target for the nail polish. He tells the police that he doesn't know where he is. In fact, he asks where he is. He says the last thing he clearly remembers is being at a party. He rembered trees and cars honking at him, but he didn't remember going to Target and buying nail polish. He told the police that he thought the highlighter and computer chip were his but he didn't know where he got them. He tells the cops the only reason that he could think of to explain why he was in the office was that he was cold. It was a cold night and he wasn't wearing a jacket. Ultimately, he doesn't even remember talking the police or being arrested. The next thing he remembers is waking up in jail.

Back in July client starts going to a psychiatrist on his own accord. The doctor tells im he was suffering from a dissociative fugue when all of this happened, so that's what we argued to the jury.

I compared him to Dorothy and the fugue to Oz in my opening. I got the cops to admit that his actions weren't consistent with a typical burglar. I had the doctor explain what a fugue is and what causes it. I used his dad tell his story and for sympathy (there was a lot of that). Unfortunately, we couldn't argue against the lonazapem - he had bought it from a friend a few days ealier. I did tell the jury that he had a prior and current prescription for it but did not at the time of the incident.

Anyway, the jury stayed out 50 minutes and--according to them--spent a lot of that time complaining about the fact that the state even prosecuted this case. They ltimatley decided he was not guilty of the theft and burlglary, but they didn't think he needed to go to Larned.

Good job, John. And thanks to Jeff Wicks for the tip. I suspected that there are lots of good verdicts in Wichita that I am just not hearing about!

Tuesday, December 12, 2006

A little counterpoint . . .

Paige Nichols sent some counterpoint regarding my last post about trials with child victims testifying. It is important to practitioners, particularly when the state seeks to avoid the Confrontation Clause because of possible irreparable harm. Here is her note:

While the prosecutor’s concern about children’s ability to testify is probably sincere, it may not be well-supported. It is easy to fall for the argument—usually substantiated by nothing more than limited and emotionally-laden anecdotal evidence—that calling a child victim to the witness stand in a sexual abuse case amounts to a "second rape." But "available evidence suggests that testifying does not usually have severe, long-term effects" on children. Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 532 (1997). Professor Friedman cites the conclusions of a large study showing that "[o]n average, the short-term effects [of testifying] on the children’s behavioral adjustment, as reported by their caretakers, were more harmful than helpful. In contrast, by the time the cases were resolved, the behavioral adjustment of most, but not all, children who testified was similar to that of children who did not take the stand." Id. at 532 n.56, quoting Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 114-15 (1992). Indeed, "some social scientists and legal scholars believe that children may find open court testimony to be therapeutic, due to the sense of retribution and empowerment the criminal justice system can provide to victims." Katherine W. Grearson, Proposed Uniform Child Witness Testimony Act: An Impermissible Abridgment of Criminal Defendant’s Rights, 45 Boston College L. Rev. 467, 490 (2004), citing Gail S. Goodman et al., Innovations or Child Witnesses: A National Survey, 5 Psychol. Pub. Pol’y, & L. 255, 258 (1999). The actual resiliency of children is evidenced in one former prosecutor’s report that "[m]y perception is that prosecutors in many jurisdictions have learned that children can in fact be enabled to testify and be available for cross-examination."

Thanks, Paige. Great points. I think there is likely to be a lot of litigation surrounding this issue in the next few years and practitioners should be on the cutting edge!

Monday, December 11, 2006

Even prosecutors see the problems . . .

The Wichita Eagle reported some trepidation, even from prosecutors, regarding Kansas' newly enacted "Jessica's Law." Of course, defenders all along were warning that such severe mandatory sentences would probably result in a lot more trials and a lot less agreed-upon resolution of cases. As this article notes, it is seldom beneficial for a child to have to testify at a trial--at least if there is another alternative. Under a "Jessica's Law" prosecution, there is rarely another alternative.

On a side comment, I have been bothered for some time about the political realities of sentencing laws--which seem to naturally gravitate upwards with no end in sight. As the senator recognizes in the article, any legislator that ever proposes or supports any measure that legitimately and wisely suggests any sort of reduction in any sort of sentencing provision is labelled "soft on crime."

Even the sentencing commission, which is supposed to be somewhat neutral in its advice to the legislature, seems to be bogged down with this problem, being populated with lots of politicians. We saw PMo really hammered (albeit unsuccessfully) this last election cycle for his support while on the sentencing commission of some measures to restore some proportionality to a small number of sentencing provisions.

I wonder if there needs to be something analogous to the Base Closing Commissions that we have seen in the national legislature? Maybe a provision that no voting member of the sentencing commission can be in public office or eligible for public office for some term of years. And then a provision that recommendations from the sentencing commission would be adopted unless a majority votes against. Something that would give politicians sufficient cover to allow a sentencing commission to propose "smart-on-crime" sentencing laws, not just ever increasing sentences. I don't know how something like this could ever be constitutionally-supported, but it just seems like the current system almost makes it impossible to have a rationale debate about sentencing laws.

A fact not noted in the article is that, if the prosecutors are wrong and convictions occur at the same rate under "Jessica's Law," the sentencing commission projects an exponential increase in prison population, which would probably require addition of a maximum security prison in the next decade--a costly proposition.

A later Hutch News article discussed some legislators' perspectives on the issue.

[Note: the links to the Wichta Eagle and Hutch News articles have expired.]

Saturday, December 09, 2006

Insufficient affidavit

Michael S. Holland and Michael S. Holland II won in State v. Hicks, No. 93,602 (Kan. Dec. 8, 2006), overruling the COA, which had reversed (2-1) the district court's suppression of evidence in a Barton County drug prosecution. The KSC engages in a lengthy discussion of the standard of review regarding search warrant affidavits and concludes that more deference is due to the magistrate when appellate courts review a probable cause affidavit then when determining whether probable cause supports a warrantless search, which is ultimately a legal conclusion:
The phrase "substantial basis" is inherently deferential. Our inquiry is not whether we, as judges, can conclude as a matter of law that probable cause actually existed. We may conduct an independent analysis of the content of the affidavit, but we need only see enough to persuade us that there was a substantial basis for the magistrate's conclusion. This is probable cause at least once removed; i.e., deference is built into Gates' wording of the "substantial basis" standard.
The KSC went on to apply this standard and agreed with Judge Caplinger, who had dissented from the COA decision, that the affidavit was insufficient:

Even when we view the affidavit at the heart of this case in the context of the totality of the circumstances and keep in mind our Gates obligation of deference to the issuing magistrate, we simply cannot conclude that the magistrate had enough before him to establish a substantial basis for the existence of probable cause. The parts are weak, and the whole is not greater than the sum of them. Although it is possible that the concerned citizens were not anonymous to the police, or, if so, that they were nevertheless worthy of trust and their complaints accurate and corroborated, the affidavit did not say so. Although the two visitors to Hicks' home may have had more recent drug abuse and distribution histories and more numerous or more frequent visitors with similar pasts may have congregated at the house, the affidavit did not say so. Although the affiant may have based his assertion that the trash pulls came from the normal place Hicks left his trash for pickup on his own or others' observation of Hicks' behavior or on indices of residency in the bags, the affidavit did not say so. With none of this information, the affidavit did not provide a substantial basis for a fair probability that evidence of crime would be found in Hicks' residence.
The KSC noted that the prosecutor had not argued that the Leon good-faith exception could apply to save this search and therefore declined to consider that possibility.

A good day for Judge Caplinger, who dissented in two COA decisions, which were ultimately overruled by the KSC!

Friday, December 08, 2006

No reasonable suspicion

Will B. Wohlford and Ryan M. Peck from Morris Laing won in State v. Parker, No. 92,541 (Kan. Dec. 8, 2006), reversing a Sedgwick County possession conviction. The KSC held that the COA had improperly found reasonable suspicion to support an investigatory detention:

To determine whether Parker was illegally detained, we must consider whether the officers had reasonable suspicion to believe that Parker had committed, was committing, or was about to commit a crime when Hoover was arrested. At that point, the officers knew that three black men were sitting in a garage in a predominantly black community. It was mid-morning, and no one had reported any illegal activity. Officer Bachmann, who had patrolled the area for approximately 23 years, did not recognize the men in the garage as criminals or gang members. He drove up to the garage because he was curious about whether the men lived in the apartments. As Officer Bachmann drove up, Hoover looked surprised, stood up, stuffed something in his pocket, and then began picking money up from the concrete floor. Another unidentified man got up and went into a nearby apartment before Hoover and Parker approached Officer Bachmann's car and entered into a conversation with him. In response to Officer Bachmann's request, both men voluntarily raised their shirts to demonstrate that neither of them was carrying a weapon. We conclude that this evidence is insufficient to establish a reasonable suspicion that Parker had committed, was committing, or was about to commit a crime. Consequently, we hold that Parker was illegally detained at the time when Officer Bachmann asked Parker if he could check him for any contraband or drugs.
The KSC also rejected the state's claim that later consent purged the illegality. Justices Beier, Allegrucci, and Lockett would have gone even further and joined with Judge Caplinger's COA dissent holding that the encounter became an investigatory detention as soon as the officer's directed the suspects to lift their shirts.

Good day for the Fourth Amendment

Three wins in the KSC today in Fourth Amendment cases! Here's the first.

Rick Kittel won in State v. Ibarra, No. 89,011 (Kan. Dec. 8, 2006), reversing some Pratt County manufacture and other drug convictions. The KSC framed the issues as follows:

Does the strong odor of ether emanating from the interior of a vehicle without a legitimate explanation constitute probable cause to search and, if so, does the late hour and potential mobility of the vehicle constitute exigent circumstances?

After considering the requirements under the emergency doctrine, the KSC, 6-1, concluded that

[t]he strong odor of ether emanating from a house or a vehicle is as consistent with lawful activity as it is with criminal activity. We agree with the California Court of Appeals that the smell of ether alone is justification for further investigation but not for a search.

Although indicating that it would be improper to allow the state to seek validation of the search on grounds not raised and litigated at the suppression hearing, the KSC rebutted the dissent on a couple of points, holding that

application of the 'fellow officer rule' to the circumstances of this case displaces testing of the reliability of the information known by [the detective]; more specifically there are no findings by the trial court regarding the reliability of the informants. A determination of probable cause should not be based simply upon a determination that there were informants; reliability of the information is a factor.
Finally, the KSC made it clear that the COA had improperly blended the concepts of probable cause with the automobile exception:
both the [COA] and the dissent have attempted to validate the search based upon the automobile exception to the Fourth Amendment to the United States Constitution. The Ibarra [COA] simply erased the distinction between probable cause and exigent circumstances, stating that "exigent circumstances existed which provided officers with probable cause . . . ." The exception to the requirement of a lawfully issued search warrant that is at issue in this case is probable cause to search plus exigent circumstances The [COA] failed to properly apply the exception. The State must show probable cause exists whether the search is of an automobile or a residence, and if it does, then a search warrant is not required to search an automobile. The controlling factor in the present case is not whether exigent circumstances existed but rather whether probable cause existed to search Ibarra's automobile. It did not; the search was not constitutionally permissible, and the motion to suppress should have been granted.
This is a great case with a lot of thorough Fourth Amendment analysis. This case will be cited many many times in the future.

Here is the coverage of this case on

[Update: this case was voted 2006 ADO case of the year.]

Friday, December 01, 2006

Lesser verdict in Topeka

Here is a Topeka Capital-Journal article reporting that Joe Huerter got a compromise verdict of attempted second-degree murder in a Shawnee County attempted first-degree murder prosecution.

Thursday, November 30, 2006

Magistrate not retained

I just noticed on the KSC web site that Clay County is looking for a new magistrate after Magistrate Judge Paul R. Wright was not retained this past election. I guess that is a bit of a surprise to me, given the high rate of retention for judges. I unsuccessfully looked for an article about this. Any readers know what was special about this retention election? It might be useful to actually publicize this a little bit to reinforce the idea that retention elections can actually be a check on the judiciary (to counter some of the "get rid of appointed judges" movement).

Wednesday, November 29, 2006

Some more ADO's hit the road

Two more attorneys left the ADO to seek greener pastures.

Heather Cessna, a KU Law grad, started at the ADO in January 2003. After a well-run, but unsuccessful campaign for the state legislature, Heather decided to join Amy Girard in Amy's Lawrence firm doing veteran's benefits law. Here is a link to Amy's firm's web site.

Heather had a reputation for enjoying oral argument and won a number of cases including State v. Boykins, (COA, possession conviction reversed due to Fourth Amendment violation), State v. Larraco (COA, aggravated burglary/aggravated assault convictions reversed due to improper jury trial waiver), and State v. Houston, No. 93,771 (Kan. App. March 31, 2006) (winning a new trial after a Wyandotte County second-degree murder conviction). I think Heather's most famous case, though, was probably State v. Knight, (COA, possession conviction reversed due to an improper traffic stop). You should read Knight for Judge McAnany's observation that salt has been used by people since "the dawn of human history."

We also lost Jay Witt, another KU Law grad, who had only been at the ADO a little over a year. Jay went to the Chanute Public Defender Office to try his hand at trial work. I suspect he will do quite well there. Jay has a lot of cases in the pipeline, but no big published wins yet. But keep an eye out.

Wins at the Third

Thanks to Stacey Donovan, who relayed the following big victories to me from the Topeka Public Defender Office.

Scott Gesner won in State v. Wahweotten, where client was charged with aggravated assault with a deadly weapon and misdemeanor criminal damage to property. A jury acquitted of aggravated assault and convicted of only the misdemeanor.

Similarly, Cindy Sewell won in State v. Taylor. Here is Stacey's report about the residential burglary prosecution:
Her client went into the house of a friend he'd stayed overnight with off and on. Client left a bunch of his dvds and cds at the other kid's house. Client kept calling kid to get his stuff back, but they never answered the phone or returned the calls, so client opened the door to the house and went in to find his stuff. He gathered all his own items and then decided once he was in the house to take some of their things. Cindy got the judge to make the state choose between enter into or remain therein on the burglary instruction. The state selected the "enter into..." portion because it was clear that client didn't "remain therein" after being told to leave. The jurors felt that he did not go into the house to commit a theft, he only decided to steal once he was inside. He was found guilty of misdemeanor theft.

Keep me updated on good verdicts so I can share the good news!

Acquittal in high profile case

Here is a Topeka Capital-Journal article reporting that Robert Myers won acquittals of conspiracy to riot and disorderly conduct in State v. New, a fairly high profile Cherokee County case involving several students at Riverton High School in Columbus. Judge Fleming acquitted Mr. New after a two day bench trial.

Monday, November 27, 2006

New district judge in Sixth

Here is the governor's press release announcing the appointment of Mark Ward as district judge in the Sixth Judicial District, covering Miami, Linn,, and Bourbon Counties.

Friday, November 24, 2006

Short list for Topeka district judge

Here is a Topeka Capital-Journal article reporting that the local nominating commission forwarded the names of Ruth E. Graham, Larry D. Hendricks, and Larry G. Karns to the governor to fill Judge Bullock's soon-to-be vacant position. I have only seen Ruth Graham at a CLE one time--I don't really know the other nominees at all. Here is the KSC press release regarding the short list.

Monday, November 20, 2006

Short list for Emporia district judge

Here is an Emporia Gazette article naming the list of three nominees to replace Judge Sanderson on his upcoming retirement. The nominating commission forwarded Jeffrey Larson, Blaise Plummer, and Rodney Symmonds to the governor, who must choose one to become a new district judge.

[Update: here is an Emporia Gazette article with interviews of each nominee.]

Saturday, November 18, 2006

Super Duper Lawyers

I got my edition of "Missouri & Kansas Super Lawyers" in my box last week. Here is their web site. I was all prepared to be filled with righteous indignation at the lack of criminal defense attorneys. But then the cover article is about James Wyrsch, who is described "as a giant of the Kansas City criminal defense bar" and reports on his practice. The edition also includes a nice article on Melinda Pendergraph, an assistant public defender in Columbia, Missouri who deals with capital cases.

And the top 100-ratings include several Kansas private defense attorneys that I have a lot of respect for, like Tom Bath and Dan Monnat. And in the overall rankings, within a criminal defense primary practice division, there are lots of great private practitioners--Stephen Ariagno, Pat Berrigan, Carl Cornwell, Robin Fowler, Pedro Ingonegaray, Steve Joseph, Kurt Kerns, Melanie Morgan, Richard Ney, Cheryl Pilate, just to name a few that I know personally (or know of personally).

While I had to temper my indignation somewhat, I still am somewhat disappointed in the lack of Kansas public defenders on this list, even within the criminal defense practice division. I can't imagine a list of the best criminal defense lawyers that doesn't include Wendell Betts, Cindy Sewell, and Tom Bartee from Topeka, Patrick Lewis and Michael McCullough from Olathe, Mark Dinkel and Pam Sullivan from Salina, Sarah Sweet-McKinnon from Hutchinson, Crystal Krier, Jeff Wicks, and David Freund from Wichita. And I can't imagine a list of the best appellate attorneys that does not include Rebecca Woodman, Janine Cox, Pat Dunn, Reid Nelson, and Debra Wilson. (Again, this list is not supposed to be remotely exhaustive--it's just some of the great public defenders that I personally know that I think should be on that list. I know there are many more that I have negligently forgotten or that I don't know personally).

Perhaps as public defenders, we are not very good at self-promotion. Or perhaps because of higher turnover, we don't get as many ballots (according to Super Lawyers, ballots are set to lawyers that have been in practice five years or more). Or maybe because a lot of public defenders practice in a localized area, they are not as well known in other parts of the state. And I suppose I really shouldn't care--I know that public defenders are not in it for the public glory--you are in it because of your commitment to a real free and just society.

But I guess I just wanted to say that I think there are a lot of Super Duper Lawyers who do great work every day protecting clients and defending the Constitution. They're called public defenders.

Friday, November 17, 2006

That's impaired?

Pat Dunn won in State v. Hess, No. 94,318 (Kan. App. Nov. 17, 2006), reversing a Sedgwick County drug conviction. A deputy pulled over a car because it was "hugging the line," which the deputy thought showed the driver was "concentrating harder" because of impairment. Although recognizing other cases that might consider hugging the line--along with other fact--sufficient to justify a stop, the COA held that the single observation did not:
We do not know whether Hess, when unimpaired, normally drives in a straight line adjacent to the lane divider. . . . . Thus, although the deputy articulated a suspicion that Hess was committing the crime of operating a vehicle while impaired, that suspicion was not objectively reasonable and particularized under the facts presented. It was an unparticularized hunch.
The COA also hinted that, even if the stop was permissible as a safety stop, the deputies probably exceeded the scope of a safety stop, citing State v. Gonzales, which I previously blogged about here.

[Update: the state did not file a petition for review and the mandate issued on December 21, 2006].

[Further update: the KSC granted the motion to publish this decision on February 13, 2007. The published opinion is linked above.]

Thursday, November 16, 2006

Dodge City acquittal

The Hutch News reported on an acquittal in a rape case from Dodge City. The article is pretty terse--it doesn't name the defender. Anybody know more about this?

[Note: the Hutch News link to this article has expired.]

Wednesday, November 15, 2006

Lots of state's appeals are affirmed

Each week when I look at cases, I first look at all of the published cases and then I look at the list of unpublished cases for reversals. If they are ADO cases we get copies right away and if they are not ADO cases I can look for them on westlaw a week or so. But I have wondered for a while about how many state's interlocutory appeals are affirmed that I'm really never seeing. (The ADO doesn't generally do interlocutory appeals--they are done by local counsel). So I did a search and, lo and behold, there were more than a dozen state's appeals affirmed in 2006. I guess that surprised me a little--many reversals in state's interlocutory appeals are published, but not many affirmances. It just goes to show how much good work defenders are doing out there in the trenches--getting motions to suppress granted-- and then preserving that win on appeal.

Here is a (rather long) list of the cases I found (which is probably not exhaustive). I will try to search a little more regularly! (And, as always, I would really appreciate being updated when you have good things happen in district court--good verdict, good motion, etc. so that I can pass it along to other defenders through this blog).

Just a quick observation--it seems a little odd to me that the state so infrequently petitions the KSC for review of their COA losses in interlocutory appeals (only 1 in 14). Perhaps the state (wisely) wants to avoid making bad law. In any case, remember that we can cite unpublished decisions if you attach a copy to your pleading/motion.

  • Ty Wheeler won in State v. Russell, No. 94,116 (Kan. App. Dec. 30, 2005), affirming Judge Wheeler's suppression of evidence in a Lyon County drug prosecution due to an illegal stop (no reasonable or articulable suspicion for stop). [No petition for review filed].
  • Monte L. Miller won in State v. Giger, No. 94,854 (Kan. App. March 10, 2006), affirming Judge Sanderson's suppression of evidence in a Lyon County DUI prosecution due to an illegal stop (insufficient evidence that car was involved in "exhibition of speed"). [No petition for review filed].
  • Sam Kepfield, Gregory bell, and Bryan Hitchcock won in cases consolidated under State v. Albright, No. 94,022 (Kan. App. March 3, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an insufficient warrant (minimal surveillance insufficient to create probability that drugs could be found at apartment). [No petition for review filed].
  • Jason Billam and Courtney Henderson won in State v. Taylor, No. 94,382 (Kan. App. March 3, 2006), affirming Judge Tatum's suppression of evidence in a Johnson County drug prosecution due to an improper search incident to arrest (no arrest, so no search incident to arrest; even though probable cause to arrest later, improper search incident to arrest was 2.5 hours before "proper" arrest on probable cause=too remote). [No petition for review filed].
  • Sonya Strickland, a Junction City public defender, won in State v. Penland, No. 94,378 (Kan. App. Feb. 24, 2006), affirming Judge Hornbaker's suppression of evidence in a Geary County drug prosecution (no actual or apparent authoirty to search bedroom; cannot use inevitable discovery where no warrant ever applied for and not certain). [No petition for review filed].
  • John Duma won in State v. Franco, No. 94,946 (Kan. App. May 5, 2006), affirming Judge Boeding's suppression of statements in a Wyandotte County first-degree murder prosecution based on a Sixth Amendment right to counsel violation (Michigan v. Jackson, 475 U.S. 625 (1986) holding that police initated interrogation after assertion of Sixth Amendment right to counsel renders any waiver invalid). [No petition for review filed].
  • Charles O'Hara won in State v. Martinez, No. 93,862 (Kan. App. May 19, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an improper stop (stop not supported by reasonable suspicion; officers did not see exchange of drugs or other suspicious circumstances supporting stop). [No petition for review filed].
  • Blake Cooper, a Reno County public defender, won in State v. Felty, No. 95,214 (Kan. App. July 7, 2006), affirming Judge Rome's suppression of evidence in a Reno County drug prosecution due to an improper investigatory stop; suspect's actions only supported a hunch, not an objective basis for suspicion of criminal activity). [No petition for review filed].
  • Frederick Meier won in State v. Henning, No. 95,708 (Kan. App. July 14, 2006), affirming Judge Fowler's suppression of evidence in a Lyon County drug prosecution due to an improper traffic stop (no violation to fail to signal upon turn from private parking lot on to street). [No petition for review filed].
  • JoAnna Derfelt won in State v. Kirby, No. 95,109 (Kan. App. Aug. 4, 2006), affirming pro tem Judge Gayoso's suppression of evdience in a Crawford County drug prosecution due to an improper traffic stop (seeing someone exit a truck, enter another vehicle, and return to car suspicious, but not illegal). [No petition for review filed].
  • Michael Bartee won in State v. White, No. 93,687 (Kan. App. Aug. 4, 2006), affirming Judge Anderson's suppression of evidence in a Johnson County drug prosecution due to officers improperly exceeding the scope of a traffic stop (although initial questioning that exceeded scope of traffic stop was based on reasonable suspicion, after officer received explanation of suspicious behavior, reasonable suspicion diminished and detention became illegal). [No petition for review filed].
  • Julie McKenna won in State v. Wilson, No. 95,028 (Kan. App. Aug. 18, 2006), affirming Judge Hebert's suppression of evidence in a Saline County drug prosecution due to warrantless search without proper consent (back yard of duplex is part of curtilage; reasonable expectation of privacy in trash located in back yard area; district court found no consent). [No petition for review].
  • Michael Johnston won in State v. Hollister, No. 95, 827 (Kan. App. Oct. 13, 2006), affiming Judge Schmisseur's suppression of evidence in a Pratt County drug prosecution due to an improper stop (telling officers not to come near him while on private property terminates any voluntary encounter; continued questioning improper seizure, not voluntary encounter). [No petition for review filed].

Thursday, November 09, 2006

Speedy trial reversal

Pat Dunn won in State v. Clemence, No. 92,114 (Kan. App. Nov. 9, 206), reversing Dickinson County manufacture and other drug convictions on statutory and constitutional (both Fifth and Sixth Amendment) speedy trial grounds. The COA had little trouble finding all of the factors required for a constitutional speedy trial violation:

[W]e conclude that (1) the length of the delay (more than 2 years from arrest to trial) was presumptively prejudicial, especially considering the clear violation of the statutory period; (2) the reasons for the delay, although shared to some extent, were principally attributable to the State, for its motion practice and appeal of magistrate ruling, together with the inexplicable dismissal and refiling of charges; (3) Clemence timely asserted his right; and (4) Clemence was prejudiced by the delay.

As to our prejudice conclusion, we are mindful that the district court concluded otherwise, but we disagree for the following reasons: (1) The record is replete with statements from witnesses about how long ago the incidents occurred (especially Detective Demars); (2) Clemence had to argue bond amounts numerous times and was incarcerated during much of the elapsed time; (3) the dismissal and refiling was "done to gain a tactical advantage by the State"; (4) the defendant's discomfort, oppressive pretrial incarceration, anxiety, and concern must be considered prejudicial; (5) Clemence had employment, housing, and transportation problems resulting from the delay; (6) the delay enabled the State to convince [a witness] to testify against Clemence, which the defense claims could not have been achieved until after the case was refiled.

Nice result in a published case.

[Update: the state filed a petition for review on December 8, 2006]

[Further update: the KSC denied the state's petition on February 13, 2007 and the mandate has issued].

And then there were three . . .

Here is a link to the KSC news release reporting that the Supreme Court Nominating Commission has forwarded COA Judge Lee Johnson, COA Judge Tom Malone, and district judge Robert Fairchild to the governor for appointment to fill Justice Allegrucci's soon to be vacant seat. Here and here are links to my previous coverage of this vacancy.

McCarville wins district judge post in Hutch

The Hutch News reported that Magistrate Judge Joe McCarville beat Chief Public Defender Sarah Sweet-McKinnon for the district judge seat being vacated by Judge Becker. Today, the Hutch News reports that Ms. Sweet-McKinnon and Legal Services for Prisoners attorney Cheryl Allen have both expressed interest in McCarville's magistrate judge seat. Here and here are previous posts about this election.

[Update: The Hutch News reported on the persons seeking to fill the magistrate position.]

[Update: The Hutch News reported that Cheryl Allen and Randy McEwen were nominated to fill the magistrate postition.]

[Note: the links to the Hutch News articles have expired.]

Tuesday, November 07, 2006

Cert petition denied

The SCOTUS denied Janine Cox' cert petition in Washington v. Kansas, which sought, in part, to apply Apprendi to minimum sentences (i.e. reverse Harris v. U.S., 536 U.S. 545 (2002)). Here is the SCOTUS order. The SCOTUS had ordered the state to respond and had set the matter over for a second conference date, but denied cert on Monday. Just FYI, the ADO is continuing to file cert petitions in hard-50 cases and in guidelines cases where criminal history makes a difference (especially with juvenile adjudications). So keep objecting at the trial level based on Apprendi.

Monday, November 06, 2006

Another lesser verdict

The Hutch News reports that Richard Ney won a voluntary manslaughter verdict in State v. Shore, a premeditated first degree murder prosecution from Stanton County in western Kansas.

[Note: the link to the Hutch News article expired.]

Thursday, November 02, 2006

Lesser verdict

Here is a Lawrence Journal-World article reporting that Albert Freeman got a lesser-included offense verdict of second-degree murder in State v. Espinales, a Douglas County first-degree premeditated murder prosecution. According to the article, the jury split the difference between the state's theory and the defense theory of voluntary manslaughter.

Wednesday, November 01, 2006

Nice Fourth Amendment compilation

Thanks to the Tenth Circuit Blog who had this link to the Ninth Circuit Blog linking to a nice Fourth Amendment compilation from the Oregon Federal Public Defender dealing with these issues from the defense perspective. I thought it was well presented and can be a good reference for any Kansas attorney looking for that case that is on point in his or her favor.

By the way, although I try to read the Tenth Circuit cases when they come down, the Tenth Circuit Blog is definitely the best resource for updates on criminal law in that court. The Ninth Circuit Blog is also a great resource, both because the people who write it are great attorneys and because the Ninth Circuit is a great source of law.

Friday, October 27, 2006

Big prior bad acts evidence case

Bad day for defendants at the KSC. I count ten murder convictions affirmed out of ten. Some bad harmless error/prejudice analysis.

Despite the bad results, there was a pretty big prior bad acts evidence ruling in State v. Gunby, No. 91,406 (Kan. Oct. 27, 2006), everyone should read. Justice Beier washed away years of bad law regarding evidence admissible independent of K.S.A. 60-455 and/or res gestae.

Our increasingly elastic approach to the admission of evidence of other crimes and civil wrongs is overdue for correction, as are the two problems that gave rise to the practice of admitting such evidence independent of K.S.A. 60-455.

We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. It may be that other crimes and civil wrongs evidence is relevant and admissible to prove a material fact other than the eight listed. Should this be a district judge's determination; however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-455 evidence is admitted.

This enables our return to sensible application of K.S.A. 60-455 and puts an end to the practice of admission of other crimes and civil wrongs evidence independent of it. It recognizes that the list in the statute has always been inclusive rather than exclusive, and that the several ways around application of and safeguards attendant to K.S.A. 60-455 must be abandoned, not only because they lack reliable precedent but because they were never necessary in the first place. Other crimes and civil wrongs evidence that passes the relevance and prejudice tests we have set up and is accompanied by an appropriate limiting instruction should always have been admissible, even if the particular material fact on which it was probative was not explicitly set forth in the statute. It never actually required a specially designed rule to admit it independent of the statute. Rather, such evidence, if permitted to do so, would have fallen squarely within it. We disapprove any language to the contrary in our previous opinions. Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.

Having explained the correct interpretation of K.S.A. 60-455, we also reject res gestae as a legitimate independent basis for the admission of other crimes and civil wrongs evidence in Kansas. Any other crimes and civil wrongs evidence that may be characterized as res gestae should henceforth be analyzed under K.S.A. 60-455.

This case provides an opportunity to end this particular confusion of thought, and we hereby do so. The concept of res gestae is dead as an independent basis for admissibility of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.

So that's the good news. The KSC finally says what some justices and several KSC judges have said for quite a while--the rules of evidence should all apply to all admitted evidence. K.S.A. 60-455 was never a rule of admission, it was a rule of limitation.

The bad news is that the KSC said that failure to give a limiting instruction is not automatically reversible. We have had some luck in these type of cases by trying to make this an instruction issue, not an evidentiary issue. No more.

In short, a trial judge should give such a K.S.A. 60-455 limiting instruction, but the failure to do so, though error, will no longer demand automatic reversal. Where the complaining party neither requested the instruction nor objected to its omission, the failure to give the instruction will be reversible only if clearly erroneous. . . . In the event a K.S.A. 60-455 limiting instruction was sought at trial and refused in error, we will examine the error for harmlessness under the typical rule of K.S.A. 60-261 (error must be "inconsistent with substantial justice").
Overall, I think this is good. Hopefully it will help trial practitioners keep this evidence out in many more cases. And when it comes in, we get de novo review on the admission issue. If there is any sort of prior bad act evidence admitted, be sure to request a limiting instruction. And if the state tries to admit prior bad act evidence not related to a statutory factor, be sure to hold its feet to the fire to explain why the evidence is so material that it should be admitted.

BTW: Apparently, it just goes to show how Rick Kittel is always working on the cutting edge and why we should just do what he says. Here is his suggestion from about 10 months before Gunby was decided.

Tuesday, October 24, 2006

Justice finally

I got a win in Fayne v. State, No. 94,872 (Kan. App. Oct. 20, 2006)(unpublished), remanding for further hearing regarding Mr. Fayne's 1507 motion. Mr. Fayne was originally sentenced to 228 months in prison on October 11, 2000 for a Johnson County agg robbery conviction.

The ADO represented Mr. Fayne in his direct appeal. In the direct appeal, in addition to several conviction issues, Teri Barr argued that a Missouri conviction for "stealing from a person" is most comparable to theft and therefore should be classified as a nonperson felony under the guidelines (which would move Mr. Fayne from "B" to "C" resulting in a presumptive reduction in sentence of 111 months). Although this is purely a legal question regarding criminal history classification, which can be raised for the first time on appeal, see State v. Vandervort, the COA panel in the direct appeal held that it would not reach the issue because it had not been raised at sentencing. State v. Fayne, No. 87,062 (Kan. App. April 11, 2003), rev. denied July 9, 2003.

Mr. Fayne subsequently filed a 1507 motion claiming that his trial attorney was ineffective for failure to object to the Missouri prior conviction at sentencing. The district court held that "stealing from a person" is comparable to a Kansas robbery offense, and therefore that the criminal history classification was correct. On appeal from denial, the COA agreed that, just like Kansas, Missouri has a crime called robbery. The distinctive element of both Kansas and Missouri robbery is taking by force or fear. "Stealing from a person" in Missouri lacks that element. In Kansas, stealing from a person (without force or fear) is pickpocketing, which is theft. The COA at least agreed that stealing from a person is not robbery, is not a person felony, and remanded for further hearing on whether trial counsel had any basis for not objecting to the Missouri conviction.

[Update: the state did not file a petition for review and the mandate issued on November 27, 2006]

[Further update: I represented Mr. Fayne at the evidentiary hearing yesterday, January 29, 2007. His sentencing attorney testified that he had no strategic basis for failing to object to the Missouri conviction and had no recollection of any legal investigation into that matter. Judge Tatum took the matter under advisement to allow for further briefing.]

[Further update: Mr. Fayne was finally resentenced to 107 months on May 7, 2006. Here is my blog entry in re resentencing].

Confrontation win in Tenth Circuit

Madeline Cohen, a federal public defender in Denver, won habeas relief in Stevens v. Ortiz, where the Tenth Circuit found such a serious Confrontation Clause violation that it granted 2254 relief vacating Mr. Steven's first degree murder conviction. Here is a brief summary of the holding:

We must decide here if the Colorado trial court violated Mr. Steven's Sixth Amendment rights when it admitted the custodial confession of Mr. Swiger, a non-testifying accomplice, that also inculpated Mr. Stevens in a murder-for-hire.

We conclude that the reasoning of the Colorado Supreme Court was contrary to clearly established federal law, and the introduction of the accomplice confession violated Mr. Stevens's rights under the Confrontation Clause. Further, the Sixth Amendment error was not harmless.

This case was final before Crawford. Interestingly, though, the Tenth Circuit holds that the four-justice plurality in Lilly v. Virginia, 527 U.S. 116 (1999) is sufficient to show "clearly established federal law" for 2254 purposes and that the Colorado Supreme Court's decision allowing the accomplice's confession without confrontation violates that clearly established federal law. I think it is even more clear now under Crawford. (I hope it is anyway--I just filed a brief on a very similar issue).

Thanks to Paige Nichols for alerting me to this.

AG candidate says you get what you pay for

I really don't plan on blogging much about the current hotly contested AG race. I haven't heard either candidate talk about concerns about wrongful convictions, the importance of fair trials, or any sort of respect for our Constitutions. But I thought this Topeka Capital-Journal article included a sort of interesting passage. LL had criticized PMo for giving too sweet a deal to a defendant and PMo responded saying:
[PMo's] office negotiated plea agreements with [defendants], but the Democrat said the deals were the only way to ensure [defendant] -- who admitted to beating [victim] to death -- would see prison time.

"It was very difficult because it was circumstantial," [PMo] said in a statement. "And we were up against a team of high-powered, high-paid and highly talented attorneys."

I know the public defenders in Olathe and know that they are high-powered and highly talented, but also know that they are not high-paid, so I don't think he is referring to them. I guess I just think this just sort of remark is sort of a back-handed slap against public defenders and/or appointed counsel. (I.e. if you don't pay, you don't get much). Any thoughts? Maybe I'm overreacting.

Wednesday, October 18, 2006

Judge Bengtson to step down

Here is a Topeka Capital-Journal article reporting that Judge Bengtson will step down to avoid further disciplinary action regarding some alleged improper travel reimbursement and dishonesty regarding charging for a marriage ceremony.

Any good judicial candidates in the 8th Judicial District?

[Update: Here is a later Topeka Capital-Journal article reporting on Bengston's guilty pleas and surrender of his law license].

Upward durational departure reversed

Robin Fowler of Bath & Edmonds won reversal of a Johnson County upward durational departure sentence in State v. Ninh, No. 95,192 (Kan. App. Oct. 13, 2006)(unpublished). Johnson County has certainly led the way on upward durational departure sentences after the legislature fixed the Apprendi problem described in State v. Gould.

In Ninh, the state charged that the aggravated battery was committed in a "cruel and heinous" manner, justifying an upward durational departure. The COA reviewed a number of hard 40 cases dealing with "cruel and heinous" findings and held that the facts of the Ninh case might have supported a finding of "excessive brutality" but not "cruel and heinous." But because excessive brutality was not charged, it could not justify an upward durational departure:

[I]t is apparent that the evidence in this case does not support a finding that the crime was committed in a heinous, atrocious, or cruel manner. There was no evidence that Tran was chased by Ninh before being shot or that Tran's gunshot wounds took place over a lengthy period of time. There was no evidence that Ninh tortured Tran before shooting her. The evidence shows that Ninh shot Tran multiple times in her legs during an argument. After shooting Tran, Ninh told her that he had done a bad thing and threatened to kill himself. Tran talked Ninh out of killing himself. Ninh then brought Tran a phone to call for help. As a result of the shooting, Tran suffered extensive injuries which required multiple surgeries and a lengthy rehabilitation. When the hearing occurred, Tran was unable to walk unaided and was taking pain medication and sleeping pills. Although it is clear that Tran suffered great harm as a result of the shooting, the evidence is not sufficient to find that the crime was committed in a heinous, atrocious, or cruel manner.
We have seen a trickle of these upward durational departure cases, post-Gould, mostly out of Johnson County. I have one currently before the KSC. There are a lot of procedural issues in cases dealing with the Gould fix. I've seen a couple of cases were "nonamenability to probation" has been used to impose an upward durational departure. I think this issue and others are fraught with constitutional problems. None of those were apparently raised in Ninh, but they are out there.

[Update: the state filed a petition for review on November 13, 2006]

[Further update: the KSC denied the petition for review and the mandate issued on February 15, 2007]

Tuesday, October 17, 2006

Eating Crow?

This post on Professor Friedman's Confrontation Blog started me thinking about laboratory certificates under K.S.A. 22-3437. In 1999, the KSC rejected a Confrontation Clause challenge to this statute in State v. Crow. The KSC held that under Ohio v. Roberts, the procedure set up in K.S.A. 22-3437 advanced an important state interest and was sufficiently reliable to meet the requirements of the Confrontation Clause. The KSC did construe this statute as merely requiring defense counsel to show grounds for objection that "have an indicia of merit, [are not] imposed for the purpose of delay, and result in a valid issue being contested at trial."

This decision was pretty suspect even before Crawford and courts in other states refused to place any burden on the defendant other than timely request to provide the witness for cross-examination.

But now there is Crawford, which washes away the very rationale used by the Crow Court. If a lab certificate prepared specifically in lieu of testimony is testimonial (which doesn't seem like a big stretch), any substantive statutory limits on cross-examination must be unconstitutional. A defendant has a right to confront the witnesses--the Constitution provides that right and no further showing should be necessary. (By way of example, a defendant can plead not guilty and require the state to suffer the inconvenience of going through a jury trial. I cannot imagine the SCOTUS upholding a statute that said a defendant can only have a jury trial if he or she can make a showing that he or she has a defense that has an indicia or merit, is not for the purpose of delay, and will actually validly contest the prosecution's case).

I have seen one case where a defense attorney had not filed an objection to a lab certificate, but then made a Crawford objection during trial, and the district judge held that K.S.A. 22-3437 was unconstitutional under Crawford. That put the prosecutor in a pretty bad spot because he now did not have evidence to support the essential element of the crime and, in fact, the defendant was acquitted of the drug charge.

So be sure to raise Crawford at any trial where the state is attempting to circumvent the Confrontation Clause using K.S.A. 22-3437.

Just my $.02.

Monday, October 16, 2006

14 apply for KSC

Here is a link to the KSC's press release announcing the list of fourteen that applied for Justice Allegrucci's soon to be vacant seat. A number of the usual suspects applied, including Martha Coffman and Judge Robert Fairchild, who made the short list last time. And a number of the newer COA judges applied: Judge Stephen Hill, Judge Lee Johnson, and Judge Tom Malone. District Judge Steve Leben from Johnson County and District Judge Gregory Waller from Sedgwick County also applied again. I don't know many of the private practictioners on the list.

Be sure to submit your comments about the candidates to the commission if you have them. It's the only way for the nominating commission to really get to know the candidates.

Thursday, October 12, 2006

Reversal based on judicial bias

In U.S. v. Franco-Guillen, the Tenth Circuit reversed a illegal entry conviction after Judge Belot went into a tirade about Hispanic defendants in his courtroom. The government conceded that reversal was required:

The judge's statements on the record would cause a reasonable person to harbor doubts about his impartiality, without regard to whether the judge actually harbored bias against Franco-Guillen on account of his Hispanic heritage. See Liteky v. United States, 510 U.S. 540, 555 (1994) . . . When at the initial sentencing hearing the district judge perceived that Franco-Guillen was lying about his understanding of the plea agreement, the judge stated, "I will not put up with this from these Hispanics or anybody else, any other defendants." The judge compounded the impropriety of his reference to defendant's ethnicity when he then stated: "I've got another case involving a Hispanic defendant who came in here and told me that he understood what was going on and that everything was fine and now I've got a 2255 from him saying he can't speak English." While the district court's statements may well reflect frustration with Franco-Guillen's apparent, albeit unexplored, contradictions between the change of plea hearing and the sentencing hearing, his reference to Hispanics and his use of an example of another Hispanic defendant in discussing Franco-Guillen's perceived lack of truthfulness would cause a reasonable person "to harbor doubts about the judge's impartiality" in this case.

Well, I guess I would harbor some doubts if I was Mr. Franco-Guillen.

Follow up on previous reversal

Here is a Lawrence Journal World article reporting that Joseph Hayden, the defendant in State v. Hayden, who obtained a new trial due to Judge James Smith's misconduct, pleaded as charged and received the same sentence. I blogged about the reversal here.

Monday, October 09, 2006

New ADO faces, new ADO deputies

I've been blogging about a lot of changes in the last few months. We have now hired a number of new people to fill the vacancies.

Ryan Eddinger and Christina Waugh are both 2005 Washburn grads. Lydia Krebs is a 2006 KU grad. This is the first legal job for all three, so we get to mold them in the proper public defender way (wah, ha, ha!).

And we now officially have two new deputies. Janine Cox started with the ADO in 1996 after working for a couple of years at the COA central staff and about five years at the federal district court. Patrick Hennessey Dunn officially started as an attorney with the ADO in 1998, although he had previous experience working on cases at the Defender Project before that. Both Janine and Pat bring a lot of experience to the table. Along with other senior attorneys in the office, it should help us get through this period of high turnover.

Friday, October 06, 2006

Vehicular homicide conviction reversed

Jeff Elder won in State v. Carlson, No. 93,608 (Kan. App. Sept. 29, 2006)(unpublished), reversing a Pottawatomie County vehicular homicide conviction. The COA applied State v. Krovvidi, where the KSC held that before the state can support a vehicular homicide conviction, it must show more than just a traffic violation that led to an accident. In Carlson, the defendant did not see two warning signs regarding an approaching controlled intersection, ran a red light, and hit another car in the intersection killing the driver. The COA held that, under Krovvidi, the conviction must be reversed for insufficiency.

[Update: the state did not filed a petition for review and the mandate issued on November 7, 2006]

Friday, September 29, 2006

New judge in Washington County

Here is the govenor's press release reporting that current Washington County Attorney Kim Cudney has been appointed to succeed Judge Thomas Tuggle as District Judge. I've only dealt with Kim a couple of time, so I really don't know much about her.

I am a little conflicted at times with regard to the high precentage of judges that seem to be former prosecutors, with little or no defense experience. On one hand I am glad to see public attorneys filling judicial positions (rather than somewhat of a bias toward big firm attorneys in appellate courts and in districts like Topeka). On the other hand, it would be nice to see some defense attorneys (or even public defenders!) seeking and filling these positions, not just former prosecutors. If there is an interest in professional diversity, it would seem a logical step. Probably it is just my own bias.

And I certainly am not forgetting that a public defender is currently running for district judge right now in Reno County. Here is a link to Sarah McKinnon's campaign web site.

By the way, don't forget that the deadline for applications to fill Justice Allegrucci's position on the KSC is October 16 at noon. Here is the press release with information on that process.

Wednesday, September 27, 2006

Another lesser verdict

Here is a Topeka Capital-Journal article reporting about Wendell Betts obtaining verdicts on lesser included offenses for his client. Mr. Smith was charged with three counts of attempted first-degree murder and a count of agg robbery, but the jury acquitted on agg robbery and convicted of two counts of attempted second-degree and a count of attempted voluntary manslaughter.

Monday, September 25, 2006

Saline County acquittal

The Salina Journal reported that Michael Sheahon won an acquittal in a Saline County rape/aggravated indecent liberties with a child case. Jurors in this case recognized what "investigators" so often do not: sometimes children make up allegations. If jurors applied the beyond a reasonable doubt standard more faithfully, a lot fewer of these cases resting solely on child allegations would stand.

Call a snitch a snitch

I saw this link on the CrimProf Blog reporting on a presentation at the Santa Clara University Law School called a "Snitch Testimony Conference." I only comment on this because we have had occasional discussions in our office regarding whether it is proper and decorous to call a snitch a "snitch" in a brief or at oral argument. In fact, some COA judges (well, one anyway) has asked that we change our reference at oral argument and call the snitch an "informant." To me that's a crock. A snitch is a special kind of informant and the word has a meaning that should not be watered down. Here is an excerpt from a recent trial transcript:
Q: Detective, what's a snitch?

A: Well, I would call that a street term. Basically, it's a term used to describe someone that provides information to the police. It's not a -- it's not an affectionate term at all. It's something that, you know, the street people do not want to be labeled as a snitch.

I'm glad that CrimProf Blog didn't water it down and call it an "Informant Testimony Conference."

By the way, if anyone wants to sponsor my airfare, I'll be glad to attend this conference and report back. Just call me. Any time. Night or day!

More judicial evaluations

This month's copy of the Topeka Bar Association newsletter led with a report on its survey of attorneys regarding Shawnee County district judges. The report surveyed attorneys on three "dimensions." First was a "professional dimension," which included whether the judge followed the law and understood complex legal issues. Second was a "diligence dimension," which included punctuality, preparation, and promptness. Third was a "demeanor dimension," which included professionalism, consideration, respect, and interaction with counsel and litigants.

Judge Parrish and Judge Schmidt scored well above average on the overall ratings. Judge Leuenberger and Judge Dowd scored well below average.

I have recently blogged (here and here) about a survey of district judges in Sedgwick County and noted with interest that Judge Kennedy, who was poorly rated, was defeated in his primary not long after publication. Judge Leuenberger or Judge Dowd were both retained in 2004, so I suppose we won't be able to test the possible effect of this survey unless evaluation is done in the future. Judge Mitchell and Judge Wilson are up for retention and they scored above average on the survey.

Friday, September 22, 2006

Verdict on lesser

Here is a Wichita Eagle article reporting that John Sullivan and Shannon Cooper got a lesser included verdict of second degree in a Sedgwick County first degree murder trial. Here and here are prior reports on the trial.

[Note: the links to the Wichita Eagle articles expired.]

Tuesday, September 19, 2006

Will Layton finally get relief?

Earlier this month, James Harty and Donald Snapp won in State v. Layton, No. 93,186 (Kan. App. Sept. 1, 2006), obtaining a remand where the district court must determine whether Mr. Layton received ineffective assistance of appellate counsel after he failed to get McAdam relief on direct appeal.

You may or may not remember that Mr. Layton's direct appeal was sort of a predecessor case to McAdam. We had been presenting an argument about K.S.A. 65-4127c (i.e. that manufacture was a misdemeanor) in other cases and Cory Riddle made it in Layton. On December 13, 2002, Judge Lewis wrote an opinion for the COA stating that OF COURSE manufacture is not a misdemeanor, because after all it is just the same as compounding and compounding is a felony under K.S.A. 65-4161 (which is explicitly excepted from K.S.A. 65-4127c). We quickly recognized the importance of that statement and filed a motion for rehearing arguing that, under the COA reasoning (and under Frazier), Mr. Layton should be resentenced under K.S.A. 65-4161. In March 2003, the COA issued an amended opinion clarifying that the fact that compounding was included in K.S.A. 65-4161 only "reinforced" its conclusion that manufacture was intended to be a felony.

About a week after Layton I, I moved to file a supplemental brief in State v. McAdam, which did not initially even have a sentencing issue included. The supplemental brief was based on "compounding" in K.S.A. 65-4161--the very argument that had been argued in the Layton I motion for rehearing. The COA granted the motion to supplement and allowed briefing on the sentencing issue about three weeks before oral argument. But in early April 2003, the COA again rejected the identical offense doctrine claim, this time using a specific/general analysis.

Cory Riddle and I simultaneously petitioned for review and in July 2003, the KSC granted both petitions. Cory argued Layton in October 2003 and I argued McAdam in December 2003. On December 12, 2003, the KSC issued State v. Layton, rejecting the issue regarding K.S.A. 65-4127c (holding that K.S.A. 65-4159 is not part of the Uniform Controlled Substances Act). And the Court held that, because Mr. Layton had not raised the "compounding" at the COA, it would not reach the issue on review. That, of course, was blatantly incorrect--although "compounding" was not included in Mr. Layton's original brief, it was raised before the COA in his motion for rehearing and had not obtained relief at the COA. But that's what the KSC said. Of course, about a month later, the KSC issued State v. McAdam, and established that we (and Judge Lewis) was right about "compounding."

But what about Mr. Layton? Because his case was no longer pending before the appellate courts when McAdam was decided (six weeks later), he is not directly entitled to McAdam relief (see Bryant v. State). But other decisions have established that it is probably ineffective assistance of appellate counsel for an ADO lawyer to have not raised an identical offense doctrine claim in a manufacture or precursor case after Frazier (see Laymon v. State; State v. Swisher). While I disagree that we actually didn't raise the "compounding" issue before the COA, that's water under the bridge (or as lawyers say: "law of the case"). So, I hope that we are found ineffective and that Mr. Layton finally gets relief. I was in Newton last week (for an IAAC claim in re McAdam coincidentally) and saw Mike Whalen, who indicated he is appointed for Mr. Layton's evidentiary hearing. He won the hearing in Newton. Hopefully, he also wins for Mr. Layton.

[Update: I appeared to testify at the hearing on January 8, 2007 in McPherson. Judge Anderson took the matter under advisement.]

[Further update: Michael Whalen contacted me and indicated that Judge Anderson denied relief, so Mr. Layton will have to back to COA.]

Monday, September 18, 2006

Traffic stop did not become a consensual encounter

Ronald Pretty of Cheyenne, Wyoming won in U.S. v. Guerrero-Espinoza, reversing three drug convictions out of Wyoming on Fourth Amendment grounds. Here is a snippet from the Tenth Circuit's 2-1 decision:
While a completed traffic stop can evolve into a consensual encounter between a citizen and a trooper, it can only do so if a reasonable person in the same circumstances would feel free to decline to answer the trooper's questions and leave. In this case, however, because the trooper completed the traffic stop outside Guerrero's presence and because the released driver never returned to the minivan, a reasonable person in Guerrero's position would not have realized the traffic stop had ended and he was free to leave. Therefore, as far as Guerrero was concerned, the traffic stop did not evolve into a consensual encounter.

I suppose this is an example of the federal court also being quite stingy about these supposed transformations from traffic stops to voluntary encounters. (At least I hope so!).

Here is Fourth's coverage of this case.

Thursday, September 14, 2006

Judge Bullock hangs up his boots

Here is the Topeka Capital-Journal article reporting on Judge Bullock's retirement. I would guess a lot of you had Judge Bullock for ethics. He certainly wasn't afraid to make a tough decision!

[Update: here is a nice op-ed from the Topeka Capital-Journal editorial board].

Wednesday, September 13, 2006

Have to prove all of the elements of the offense

Susan Dunleavy, a federal public defender in Albequerque, got a nice win in Torres v. Lytle, getting 2254 relief on sufficiency grounds reversing a state conviction for retaliation against a witness. The Tenth Circuit held that:

The statute under which Mr. Torres was convicted provides:
Retaliation against a witness consists of any person knowingly engaging in conduct that causes bodily injury to another person or damage to the tangible property of another person, or threatening to do so, with the intent to retaliate against any person for any information relating to the commission or possible commission of a felony offense . . . . N.M. Stat. Ann. § 30-24-3(B) (emphasis added).

The issue before us is whether the State produced sufficient evidence at trial to prove that Mr. Torres's letter (it is now undisputed that Mr. Torres was the author) was retaliation for Mr. Medina's providing information relating to a felony. Mr. Torres contends that the evidence showed only retaliation for Mr. Medina's report and testimony concerning the misdemeanor offense for which Mr. Torres was convicted. We agree. Even applying the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C. § 2254(d), we conclude that the evidence was not sufficient.

Tuesday, September 12, 2006

KSC puts out the help wanted sign

You can access the release here regarding Justice Donald Allegrucci's impending retirmement and solicitation of nominations for his successor. I expect this selection process will be somewhat under the microscope given the large amount of scrutiny heaped on the KSC the last couple of years by conservative critics. And Chief Justice will be forced to retire in two years, so we are certain to see some big changes in the KSC personnel in the near future.

In many ways, it is sad to see Justice Allegrucci leaving--he is a great voice on the bench and still seems fit. Plus, it is always inspiring to see him hold a prosecutor's feet to the fire. I am in favor of mandatory retirement, but sometimes you lose a good jurist too. Maybe I'm just biased because Justice Allegrucci authored State v. McAdam, State v. Phinney, State v. Childs, State v. Brice (my wins) not to mention State v. Tosh, State v. Dixon, State v. Campbell, State v. Boyd, State v. Carter, State v. Donesay, State v. Greene, State v. Plaskett, In re B.M.B., and In re Crane (other attorneys' huger cases and just to name a few). He was also a frequent dissenter as exhibited in State v. Mattox (a very frustrating loss for me), State v. Ramirez, and State v. Peterman. Although I have disagreed with many Allegrucci opinions, I think it is fair to say that if you sensed that Justice Allegrucci was writing the opinion in your case, you were likely to get a fair hearing.

Please respond if you have any good Allegrucci opinions/stories to add!

Friday, September 08, 2006

How to argue credibility on appeal

I am not going to make it a habit of talking about other jurisdictions' cases, but I agree with Appellate Law & Practice's surprise about United States v. Henderson, a First Circuit case reversing a weapons violation on suppression grounds. The First Circuit held in its unusual appellate decision:
In support of this assertion, Henderson emphasizes that Kominsky's [the police officer] testimony was riddled with proven inaccuracies and contradictions and that the district court explicitly disbelieved important portions of Kominsky's testimony. We agree with Henderson. After a careful review of this unusual record, we are convinced that this is one of those rare cases in which a district court's credibility determination is clearly erroneous.

Because the First Circuit found the officer's testimony so incredible, it ordered suppression of evidence. Although it is unusual, the KSC has, at least once, made a similar credibility determination of a witness. See State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983) (uncorroborated testimony of prosecutrix was unbelievable to such extent that it was not sufficient to sustain conviction of defendant). Maybe others know of other similar findings regarding credibility on appeal?

Nothing from the Supremes today!

We were a little surprised to get NOTHING from the KSC today (which is a regularly scheduled release date). I know they have been busy over the summer with school finance and all, but we have a big handful of cases being held over (I argued State v. Farmer in April 2005 and am still waiting for decision!) Oh well, hopefully the old adage will be proven true: good things come to those who wait! (It sure worked for Paige and Dan in Bunyard)!

Friday, September 01, 2006

Not guilty

Here is a Topeka Capital-Journal article reporting that Richard Jones won an acquittal after a seven-day jury trial in federal court in U.S. v. Guyton. Judge Rogers had acquitted Ms. Guyton of two charges of fraudulently obtaining documents and a jury acquitted her of the third.

Thursday, August 31, 2006

Why can't a jury acquit on a greater and hang on a lesser?

This Topeka Capital-Journal article about Billy Rork fighting the state to a hung jury in a second-degree murder case prompted me to sit down and write a blog entry that I have been contemplating for a long time. Although it is not common, it is an example of a case where a jury hangs in a case where it has been presented a greater and a lesser offense. It is possible (not just theoretically) that a jury could unanimously acquit on the greater charge but hang on the lesser. For example, six jurors in Billy's case could have said Mr. Cabello was not guilty and six jurors could have said he was guilty of voluntary manslaughter. All twelve jurors would have agreed that Mr. Cabello should be acquitted of second degree murder, but the way juries are instructed in Kansas it is difficult, if not impossible, for the jury to express that verdict.

Last spring, the COA decided Tomlin v. State, a case involving a similar issue. Mr. Tomlin was charged with rape and the judge gave a lesser for aggravated indecent liberties. The jury gave a note to the judge indicating the following:
We have moved to 11 guilty to count 1 of the lesser aggravated indecent liberties and 1 not guilty to count 1 or count 2 due to reasonable doubt. We have all agreed to Not Guilty to Count 1 Rape. Since 3 p.m. today, we have made good progress. However, the one has stated that since we haven't convinced him of his reasonable doubt position that he will never change his mind. We are at an impasse. Most of the Jury feels further discussion will not change his mind.

The district court declared a mistrial and rejected Mr. Tomlin's claim that he should have been declared acquitted of rape. He was subsequently convicted of rape and the conviction was affirmed on appeal because no verdict was ever submitted pursuant to K.S.A. 22-3421 (requiring written verdict read by clerk to the jury) before the jury was discharged.

The Defender Project helped Mr. Tomlin on his 1507 motion, where he claimed that his trial attorney was ineffective for failing to request that the unanimous vote be published as a verdict. Megan Kimbrell, now at Monnat & Spurrier, drafted the motion and did a great job of dispelling the outdated notion that it is somehow impractical to receive a partial verdict of acquittal on a greater charge. She cited case after case from other jurisdictions, including Stone v. Superior Court, 646 P.2d 809 (Cal. 1982), reversing the very precedent cited in a 1975 KSC case as implying that trial courts cannot receive partial verdicts.

But the COA limited the issue in Mr. Tomlin's 1507 proceeding to whether Mr. Tomlin's trial counsel was constitutionally deficient by failing to request the partial verdict. Because the COA held that, partial verdicts are not allowed under the 1975 KSC precedent, it concluded that the trial attorney could not be deficient. The COA explicitly avoided the issue of whether the 1975 KSC precedent is right (which I suppose is a difficult issue for them to get to anyway). Mike Whalen is representing Mr. Tomlin in the 1507 appeal and filed a petition for review, which will likely be decided in the next couple of weeks.

In any case, the cases and rationale that Megan put forward in the 1507 motion are quite persuasive. There is simply no practical reason that a district court cannot accept a jury's unanimous acquittal on a case and retry a defendant only on a lesser. We have implied acquittal's all the time (where a jury hangs on the greater but convicts on the lesser). Even if Tomlin is upheld, it doesn't mean that practitioners can't and shouldn't request publication of the verdict in such a case. In State v. Pugliese, 422 A.2d 1319 (N.H. 1980), quoted by Megan in the 1507 motion, the New Hampshire Supreme Court made it clear that in a case involving lesser included offenses, when informed that a jury may be hung, it should ask whether the jury had reached a verdict on the greater charge:
If the answer had been in the negative, there would have been a basis for the mistrial. If the answer had been that the jury had agreed on acquittal, then the defendant's "valued right" would have been upheld. There was no necessity at all, much less a high degree of necessity, to declare a mistrial before making the inquiry requested. All possible alternatives to a mistrial must be considered, employed, and found wanting before declaration of a mistrial over the defendant's objection is justified.

The benefits of such a process seem obvious to me. First, you reduce the exposure of your client to a greater offense. And, it would change the entire tenor of future negotiations and a future trial. There is no cost or risk to your client if such a process is allowed. So, if you are trying a case that involves a lesser included offense and reach a point where a jury is expressing an impasse, be sure to request that the jury be questioned whether they reached a verdict on the greater offense and, if so, get it published as a verdict. If the district judge won't let you, make the record and try to get some information from one or more jurors regarding the status of the deliberations. I have Megan's 1507 motion from Tomlin and can send it to anyone, if you are interested and Megan also indicated that you could call her to brainstorm.

[Update: the KSC denied Michael Whalen's PR on September 19, 2006].

[Further update: the Federal District Court granted Mr. Tomlin's 2254 motion on September 25, 2007.]

[Further update: the Tenth Circuit reversed the habeas grant, with a dissent, on November 13, 2008.]

Maybe we do have a statutory exclusionary rule?

After a couple of bad cases from the SCOTUS this last term (Hudson v. Michigan and Sanchez-Llamas v. Oregon), I have been pondering a world without a federal exclusionary rule. Although Justice Kennedy in his Hudson concurrence reassures that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt," four justices seem ready and throw Mapp v. Ohio, 367 U.S. 643 (1961), out with the bathwater.

Of course, states can have their own exclusionary rules, either as a matter of state constitutional law or as a statutory rule. For example, in a couple of Kansas statutory provisions there are explicit exclusionary rules: "no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible." K.S.A. 2005 Supp. 21-4718(b)(5) (upward durational trial departure).

Consider this: is K.S.A. 22-3216, the statute governing procedure for a motion to suppress illegally obtained evidence, a statutory exclusionary rule?

Prior to trial a defendant aggrieved by an unlawful search and seizure may move . . . to suppress as evidence anything so obtained. . . . The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were lawful shall be on the the prosecution."
The statute seems clear enough--if evidence is obtained by an unlawful search and seizure, it should be suppressed.

This might be important for two reasons. First, if the SCOTUS overrules or limits Mapp v. Ohio, suppression still appears to be the right remedy in Kansas. I suppose if the SCOTUS does take such action, prosecutors might seek repeal or amendment of K.S.A. 22-3216, but legislatively I would rather be on the side of trying to keep a current statute than trying to obtain a new protective statute.

And second, as cogently pointed out by Korey Kaul, perhaps there is an argument that this statute supersedes the Leon v. United States, 468 U.S. 897 (1984), good-faith exception. Leon is an exception to the federal exclusionary rule. But even where the federal exclusionary rule does not apply because of Leon, the statute should still apply. Leon doesn't say that evidence was legally obtained, it only says that the exclusionary rule doesn't apply in certain situations. A defendant in Kansas can still argue that, even if obtained in good-faith, evidence was still obtained "by an unlawful search and seizure" and the remedy under K.S.A. 22-3216 is suppression. If the Legislature had wanted to incorporate a Leon type good faith exception into the statute it could have; but this statute has remained as is since 1971.

Just something to think about. Be sure to cite K.S.A. 22-3216 if the state is pushing Leon on you in an otherwise good suppression case.

[Update: Paige Nichols e-mailed to let me know that she has seen this argument and has made this argument before. It is probably percolating around, although I don't remember seeing an appellate decision on it.]

Monday, August 28, 2006

Rocky Mountain High

The next in the line of attorneys leaving the ADO is Cory Riddle. Cory started at the ADO in 1999 and was named deputy after Steve Zinn's passing in 2004. Cory's significant other is a university professor, and she got a new position at the University of Colorado, Boulder (we've got to stop hiring these people with such smart partners!). Cory has accepted a new job with the Colorado public defender system and will be doing trial work in Boulder; at least he is still fighting for clients and the Constitution.

Cory had a couple of big published wins along with lots of other unpublished wins: State v. Campbell (COA, reversing battery on a leo) and State v. Vandervort (SCT, reversing criminal history finding on appeal). Of course, I have warm memories of State v. Layton, which rejected our initial claim regarding K.S.A. 65-4127c, but laid the ground work for the companion case, State v. McAdam. (And by the way, Layton is actually good law if you have any convictions under K.S.A. 65-4141 or K.S.A. 65-4142).

I'll miss Cory a lot. But I think the move to Colorado will be good for him and his family.

Friday, August 25, 2006

You really don't need to check my license for safety purposes

Jean Phillips at the KU Defender Project won in State v. Gonzales, No. 93,845 (Aug. 25, 2006), reversing some Butler County drug convictions. The state argued that the continued detention as a public safety stop. The COA acknowledged that the stop itself was justified, but held that the officers' continued detention was illegal. The COA wrote some nice language on the limited nature of a public safety stop:
A public safety stop is not for investigative purposes. Asking for information about the ownership of the truck and demanding and retaining the occupants' driver's licenses exceeded the justification for the stop. That justification was limited to an examination of the tire to determine if it was safe to continue driving and to alert the driver about the condition of the tire. Obtaining and retaining the occupants' driver's licenses, under the circumstances of this case, exceeded the legitimate bounds for a safety stop.
Any detention must be limited and does not even include a license check. This is another example of a COA decision holding law enforcement really accountable under the Fourth Amendment. Is it just me or are we getting a lot of these cases lately? Or is it that law enforcement officers are just pushing the envelope harder than ever before?

[Update: the state did not file a petition for review and the mandate issued on September 28, 2006.]

Thursday, August 24, 2006

Old client gets a good result

I just saw this slightly out-of-date Salina Journal article reporting that one of my old clients, Ronnie Branning, got a good deal after a new trial was ordered by the COA due to IAC (not mine). I lost his direct appeal (see here for the details). In the direct appeal, among other issues, the KSC held that " (1) Nonincriminating hearsay statements attributed to an unavailable witness were not objected to at trial . . . [and] (3) a witness who personally exercised his Fifth Amendment right not to testify was not erroneously later compelled to appear." In particular with regard to the latter issue, the KSC held that because trial counsel had not requested a hearing on whether the witness has a Fifth Amendment privilege, we could not get relief on appeal. Mike Holland represented Mr. Branning on his 1507 hearing and alleged that trial counsel was ineffective for failing to properly raise these issues at trial. The COA agreed, reversed, and remanded for a new trial. Branning v. State, No. 93,195 (Kan. App. Dec. 2, 2005), rev. denied March 28, 2006. So I'm glad Mr. Branning got relief. [I still think the cross-examination on the terms of the plea agreement issue is a good issue, but the KSC didn't bite at all. I wonder if it could be a decent federal issue?]

[Note: the link to the Salina Journal article expired.]

Wednesday, August 23, 2006

Exclusionary rule reaches evidence of identity

Barbara Mandell, a federal public defender from New Mexico successfully defended a suppression order in U.S. v. Olivares-Rangel. The Tenth Circuit agreed that evidence of identity should be subject to the exclusionary rule, rejecting the government's claim that such evidence should fall under the rule that you can't suppress a person even if their arrest was illegal. The Tenth Circuit agreed that the rule only says that a defendant can't claim the trial court lacks jurisdiction over his person after an illegal arrest.

A couple of new district judges

Here and here are a couple of press releases regarding the appointment of a couple of new district judges. The governor appointed Steven Montgomery district judge in the Sixth District (covering Miami, Linn, and Bourbon Counties). In Wyandotte County, Kathleen Lynch will fill the vacancy created by the death of Judge Cordell Meeks. I note that Ms. Lynch was the private defense counsel member of the Kansas Sentencing Commission, so I suppose there will be a vacancy on that body if any private counsel are interested (I never have understood how much private defense work a person has to do to qualify for that position).

Friday, August 18, 2006

What's in the personnel file?

Sarah Johnson won a remand in State v. Griswold, No. 94,835 (Kan. App. Aug. 18, 2006)(unpublished), involving a Butler County drug conviction. The COA directed the district court to review two detectives' personnel files. If the district court finds any impeachment evidence, the Butler County drug convictions are reversed and the matter ordered to a new trial. The detectives had been recently suspended from the Butler County Drug Task Force and one was being investigated by the KBI.

Trial counsel included the personnel files in the discovery request, specifically noting that the "veracity of these detectives may be at issue." Counsel also asked alternatively that the district court conduct an in camera review of the personnel files. "Counsel conceded, however that he did not know the basis for the detective's termination from the task force or whether the termination had anything to do with their honesty or credibility."

The COA agreed that the files could contain impeachment evidence and that Ms. Griswold could not be required to show materiality of the personnel files when she could not obtain them. So the COA applied State v. Shoptaw, 30 Kan. App. 2d 1059, 56 P.3d 303 (2002) for imposing a remedy of requiring the district court to conduct an in camera hearing.

You should remember that it you get an in camera hearing like this and the judge says "Well, I looked at it and there was no impeachment evidence," see if you can get the judge to seal them so that the appellate court can look at them too. (And maybe the appellate lawyer--it's happened).

[Update: the state did not file a petition for review and the mandate issued on September 21, 2006]