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.