Best of 2005 (Part III)

Well, let's finish up with a couple of great cases, both from a practical aspect and a advocacy aspect. In State v. Elnicki, Pat Dunn won a reversal in a rape/aggravated crim sodomy case out of Topeka. Over trial counsel's objection, the state introduced a videotape in which the interrogators repeatedly said "you're bullshitting" and "you're weaving a web of lies" and the like. The KSC reviewed cases from other jurisdictions and said this was improper comment on the credibility of a witness by another witness. By the way, as correctly pointed out by Amy Girard in her comment to my previous post, this is another example of movement by the KSC on standard of review as the Court found that the question at issue was a legal one and, therefore, reviewed admission of the videotape de novo. The KSC also found prosecutorial misconduct. The prosecutor described the defendant's version of events as a "yarn," "fabrication," "tall tale," and "spin." The KSC found that such comments are personal comments on credibility, just the same as calling a defendant a liar.

Last, but certainly not least, in State v. Dixon, Sarah Johnson won a reversal in a high-profile felony murder case out of Emporia. The KSC reversed based on improper denial of a public trial due to sealing of the courtroom during reading of the verdict (denial of a public trial is structural error). The KSC also reversed based on improper questioning of the defendant regarding his contacting a lawyer after the alleged offense. In direct examination, the prosecutor (Maxwell) elicited testimony from officers that Dixon had telephoned an attorney. The prosecutor also commented on Dixon's contacting an attorney during closing argument as an inference of guilt. The KSC considered this to be prosecutorial misconduct and reversed.

On the whole, this was a good year for our office and for the Constitution. We will see how it carries over to 2006!