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 Megan Kimbrell, now at Monnat & Spurrier, drafted the motion and did a great job of dispelling the outdated notion that it is somehow impractical to receive a partial verdict of acquittal on a greater charge.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]

You can't charge for nine years?

Sarah Johnson and Matt Edge successfully defended Judge Bornholdt's dismissal of five counts of aggravated criminal sodomy and five counts of rape based on statute of limitation grounds in State v. Thomas, No. 93,980 (Kan. App. Aug. 18, 2006)(unpublished). The charges occurred in 1994 and 1995, but the state didn't file charges until 2004. The state had alleged that Mr. Thomas was not in Kansas, tolling the statute. But Judge Bornholdt held that "Thomas had been absent from Kansas a total of 1,366 days . . . and the State had to prove Thomas was absent for a total of 1,476 days for the complaint to fall within the statute of limitations." The COA gave deference to Judge Bornholdt's findings rejected the state's claim that certain evidence (like the fact that Mr. Thomas had a Missouri driver's licence proved he was out of the state) and affirmed the dismissal.

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

Wednesday, August 16, 2006

Ferguson is not an unreasonable application of Strickland

I was interested to see Ferguson v. Werholtz, in which Judge Martens finds that the Kansas Supreme Court's decision in Ferguson v. State, holding that failure to file a motion to arrest judgment where there was a defective complaint--and which would then have led to a new trial--was not ineffective. The sort of disconcerting part of these cases is the idea that getting a new trial isn't enough to show prejudice regarding post-trial remedies--you also have to show that the new trial might come out different. I don't really think about that being a part of the analysis of ineffective assistance of appellate counsel claim, for instance. You have to show that the result of the proceeding in which the person is entitled to effective assistance of counsel (the appeal) would be different, but winning a new trial on appeal (or by motion to arrest judgment) is a different result. Bad law, bad law. I wonder if this can get any traction in the Tenth Circuit?

I guess the lesson for practitioners is: err on the side of filing a motion to arrest judgment. I see attorneys file motions for acquittal and motions for new trial in almost every case. When you are writing that motion, take another look at the complaint and make sure there is nothing missing or ambiguious. If there is, file a motion. It can't hurt your client, but it might get a new trial.

Attempted agg indecent solicitation is not a "crime of violence"

In U.S. v. Harris, Judge Rogers wrote a nice sentencing memorandum decision holding that attempted aggravated indecent solicitation is not a "crime of violence" as defined by U.S.S.G 4B1.2. Judge Rogers noted that "Here, we have a crime that is at best ambiguous when one looks at the language of the statute. With some additional information, we could easily find that a crime of violence is present here. However, the government was not able to produce the charging document, the plea agreement, or the plea colloquy. Without this information, we cannot find that the defendant's underlying crime constitutes a crime of violence."

Saturday, August 12, 2006

"So long," Sarah

Well, the trade deadline just passed for Major League Baseball, so I guess it's appropriate that the next of our ADO musical chairs takes place, since it is something of a trade.

Sarah Johnson started work at the ADO in June 2001. Sarah brought the total package to her job at the ADO, both a real competitive attitude regarding her advocacy plus real concern for every client.

Sarah is going to work for BIDS as a Capital Appellate Defender, working with Rebecca Woodman. It is sort of odd to talk about Sarah "leaving" because her she is staying right in her current office--but administratively, she is now strictly working with Rebecca on capital cases and other cases assigned to them by BIDS.

In her five years at the ADO, she has become somewhat of a glutton for homicide cases, taking on lots of big murder cases and winning several of them including: State v. Brown, (KSC, felony murder conviction reversed based on judicial misconduct) and State v. Dixon, (KSC, felony murder conviction reversed based on prosecutorial misconduct and denial of public trial). I also fondly remember State v. Schroeder, a cattle-rustling case, where Sarah successfully got the KSC to reinstate the district court's dismissal based on compulsory joinder after the COA improperly ordered reinstatement of the charges.

As I noted, Sarah's "departure" is really something of a trade for us. Janine Cox is "coming back" to the ADO. She "left" to work with Rebecca a few years ago, but had decided to return to non-capital work. So while were are suffering a loss with Sarah's departure, we are getting a proven advocate "back" at the same time. I wonder if we should have pushed for a future player to be determined?

Now that's a reversal!

I don't usually blog about unpublished restitution cases, but here is the exception to the rule. Matt Edge won in State v. Winter, No. 93,190 (Kan. App. Aug. 11, 2006)(unpublished), reversing a $740,000 restitution judgment stemming from a Kingman County theft conviction. And the COA terminated Mr. Winter's probation due to improper extension after it had terminated. Here is Matt's summary of the remarkable case:

Mr. Winter pleaded guilty to seven counts of felony theft in 1986 and got probation. Under the law then in effect, the total time he could spend on probation was thirty-five years. He was also ordered to pay $740,000 in restitution. Mr. Winter’s probation was extended several times. In February 1996, the district court entered an order purporting to extend probation "until July, 2001" without specifying a date. On August 3, the state moved to extend probation until 2006. The state moved to revoke probation in 2004. In response, Mr. Winter filed a motion to terminate probation and release the judgment of restitution. Mr. Winter argued K.S.A. 22-3424 converted the restitution order into a civil judgment that had extinguished for lack of a timely renewal or revivor under K.S.A. 60-2403(d). The district court overruled the motion and entered a new probation order. On appeal, Mr. Winter challenged not just the denial of the motion, but whether the district court even had jurisdiction to
modify probation.

Under State v. Morrison, 28 Kan. App. 2d 249, 14 P.3d 1189 (2000), getting the denial of the motion reversed was a slamdunk. Renewal and revivor laws apply to restitution judgments, even if the defendant is still on probation. As for the probation, the COA held that the district court lost jurisdiction to extend probation in 2001. The order extending probation "until July" was vague. As a penal order, it should be construed in favor of the defendant. So "until July" meant "until July 2" (July 1, 2001 was apparently a weekend), so the state’s motion to extend on August 3 was not timely. So Mr. Winter not only gets off probation, but he gets out from under the restitution judgment, too.

[Update: the state did not file a petition for review and the mandate issued on September 14, 2006]

Attempted attempt instruction

Rick Kittel won in State v. Sierra-Medrano, No. 94,580 (Kan. App. Aug. 4, 2006)(unpublished), obtaining a new trial on an trafficking in contraband conviction from Meade County. The instruction on trafficking required the jury to find that the "defendant intentionally took or attempted to take marijuana into or upon the grounds of a correctional institution." The COA followed State v. Martens, 274 Kan. 479, 54 P.3d 960 (2002) and State v. Cherry, 279 Kan. 535, 112 P.3d 224 (2005) and held that the instruction was clearly erroneous because the crimes of trafficking and attempted trafficking were combined into one count without separately setting out the elements of attempt.

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

Thursday, August 10, 2006

Right to speedy trial from beginning to end

Thanks to Paige Nichols, who pointed out this interesting 10th Circuit case, U.S. v. Yehling, involving a constitutional speedy trial issue. Here is her succinct summary:

Defendant is convicted, gets 18 months, and files a motion for new trial. Court stays sentence and grants OR bond while motion for new trial is pending. Court sits on motion for new trial. Defendant, in the meantime, works, gets married, buys a house. FOUR YEARS LATER, court finally denies motion and defendant has to go serve his sentence. Total bummer man!!! Tenth Circuit affirms denial of motion and rejects "speedy trial"-type claim based on the delay. I wonder whether there was a better claim to make?
We have seen claims sort of like this in state court and I was interested to see the court freely acknowledge that the "Sixth Amendment guarantees all criminal defendants the right to a speedy trial; we have applied this right from arrest through sentencing. Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir. 1986)." We have had success on a Due Process-type analysis with delay to probation revocation. Nathan Webb just won State v. Bennett, where the COA held that a two year delay in prosecuting a probation violation, the state waives the violation and the district court loses jurisdiction. Another area where these issues come up is delay in sentencing. Often may be easier to show prejudice, for example, if the client has picked up additional criminal history during some unreasonable delay. But we have not had much luck getting the COA to see such delay as much of a problem unless we can show the delay was a "tactical ploy," which is pretty difficult. See State v. Prater. But this Tenth Circuit case shows that there is a real basis for a regular Barker v. Wingo analysis of such claims.

Sometimes the law doesn't taste so good

Here is an excerpt from a Tenth Circuit win by Robert L. Wyatt, IV of Oklahoma City in U.S. v. Hunt, reversing multiple forgery counts out of the Western District of Oklahoma:
We pause to acknowledge our distaste for undoing the conviction of a defendant twice found guilty of forgery, whose actions undoubtedly violated numerous fraud and embezzlement statutes, and whose conduct before the district court included the brazen fabrication of evidence and attempted bribery of a witness. It is our unhappy duty, however, to reverse the conviction of any defendant charged under the wrong statute. As the Nebraska Supreme Court noted in one of the leading common-law forgery cases, "even a knave is protected in prosecutions under legislative enhancements authorizing punishments for different species of fraudulent acts such as forgery, obtaining money by false pretenses, larceny and embezzlement." Goucher, 204 N.W. at 968. It found, as we do: "There is no escape from this conclusion." Id. at 969.

Such cases are pretty common in state court, too. You know, prosecutors go to law school and have virtually limitless charging discretion. So I wouldn't think it cause such apoplexy to impose clear legal circumstances when a prosecutor can't get the charge right. I guess that's what I know.

Monday, August 07, 2006

More judicial news

Here is a Topeka Capital-Journal article reporting on two new appointments to the bench, one in the Third, and one in the Second. Mark Braun, associate counsel with the Kansas Securities Commissioner, was appointed district judge in Topeka. Michael Ireland, currently the Jackson County Attorney, was appointed district judge for the four county judicial district covering Jackson, Jefferson, Pottawatomie, and Waubunsee Counties. Here is a link to the governor's press release regarding these appointments.

Saturday, August 05, 2006

Failure to seek revocation waives revocation

Nathan Webb and Washburn student intern Brandi Studer won in State v. Bennett, No. 94,492 (Kan. App. Aug. 4, 2006), reversing a probation revocation based on the state's failure to act on the revocation for more than two years:

The State claims that evidence exists showing that Bennett attempted to conceal herself. While the lack of any wage information on her social security number since 2001, combined with the multiple addresses, and the evidence indicating that she claimed to be a babysitter when officers arrived in March 2005 is evidence of her attempts at concealment, this evidence does not negate the State's failure to conduct a reasonable investigation.

Really, the true extent of the Bennett's efforts at concealment cannot be ascertained due to the State's failure to conduct a reasonable investigation. Her efforts to conceal herself is only one factor to consider in determining the reasonableness of the investigation. If no one is looking for you, you cannot be said to be concealing yourself. Thus, Bennett's actions do not excuse the State's failure to conduct a reasonable investigation.

In conclusion, the State failed to present evidence showing that it conducted a reasonable investigation to find Bennett. Accordingly, the State waived the probation violation, and the district court lost jurisdiction to revoke Bennett's probation. Furthermore, she was not required to prove that she was prejudiced by the delay. Accordingly, the revocation and reinstatement of Wynona Bennett's probation violated her due process rights. We therefore reverse her probation revocation and remand with directions that Bennett's probation be terminated.

Thursday, August 03, 2006

Judicial election results

Following up on previous posts about the election to fill Judge Becker's soon to be vacant spot on the bench in Reno County, Joe McCarville (39%) beat Rick Roberts (33%) and Assistant District Attorney Tom Stanton (28%). He will run against Sarah Sweet-McKinnon (the new Chief Public Defender in Hutchinson) in the general election. I think this will be the only contested judicial election in November.

I suppose the surprise (at least to me) in this primary election was Judge David Kennedy's primary defeat to Robb Rumsey in Wichita. Robb Rumsey will not face an opponent in the general election. I wonder if the recent polling on judges in Sedgwick County had anything to do with this. Or if Judge Kennedy's reputation just finally caught up with him. Or if it was just sort of a random thing? Was there a lot of talk about this race in Wichita?

In other races across the state Judge Phillip Sieve from Wyandotte County won a close primary challenge by Reginald Davis (51%-49%). And in Montgomery County, former County Attorney Bill Cullins won the Republican primary election against Gary House. Bill Cullins will not face an opponent in the general election. [Update: here is a press release indicating that Bill Cullins was appointed to fill a vacancy last April, which I guess I missed. So I guess Judge Cullins was the incumbent in that judicial race].