Thursday, June 29, 2006
Saturday, June 24, 2006
Here is a link to Mickey's obituary.
[Note: the links to the Hutch News articles have expired.]
Wednesday, June 21, 2006
[Note: the link to the Wichita Eagle article has expired.]
Monday, June 19, 2006
[Update: the state did not file a petition for review and the mandate issued on July 20, 2006]
Thursday, June 15, 2006
Heather Cessna, my colleague at the ADO, is running for the 15th District in the Kansas House of Representatives. She is a Democrat running against an incumbent Republican.
Sarah Sweet-McKinnon, now in the Hutch PD's office, is running for the Division 3 District Judge position in Reno County. She is a Democrat running against the winner of a three-way Republican primary including Tom Stanton. Divisions 3 is currently filled by Judge Becker.
If anyone knows of other defenders that are running, please let me know.
The KSC also held that Mr. Anderson's arrest was not justified because he was a conditional release violator:
The State also asserts that the officers' reasonable suspicion ripened into probable cause to arrest Anderson after Golston was found to be holding drugs and arrested, the drug dog alerted, and the officers thoroughly searched the truck and found no additional drugs. The State wants us to conclude that additional drugs had to be somewhere and that the somewhere was on Anderson's person 30 to 40 feet away from the truck.
We are not willing to do so. Rather, we adopt the Court of Appeals' analysis of this issue. Not only did no probable cause to arrest Anderson for drugs develop when the unproductive search of the truck was completed; the justification for the Terry detention ended.
Probable cause to believe a person is a conditional release violator does not permit the person's warrantless arrest.The KSC reviewed the statutes and found that being a conditional release violator is not a crime itself and statutes authorizing arrest of conditional release violators require a written order.
[Note: the link to this article has expired.]
Monday, June 12, 2006
I think Justice Stevens is wrong regarding the impact of Almendarez-Torres. Although not very many people actually contest criminal history findings, I bet even .01% of all the cases in state courts across the U.S. would add up to more than all of the people currently on death row, a subject on which the SCOTUS grants cert in multiple cases every year. For the people on the margin for whom these criminal history decisions are critical, they should have every right to demand the same Sixth Amendment and Fourteenth Amendment procedural protections as people who are contesting "traditional" guilt facts.
Justice Stevens argues that stare decisis is a sufficient basis for denial of cert in these cases. But, stare decisis didn't stop the SCOTUS from reaching and deciding Apprendi , Ring, and Blakely. If you are going to make a watershed change in the law like Apprendi correcting precedent to conform to that watershed change really doesn't implicate stare decisis concerns.
[Update: the state docketed an appeal on June 30, 2006. As is usual in interlocutory appeals, the briefing schedule has been expedited, which basically just means no extensions for the attorneys.]
[Further update: The COA affirmed Judge Parrish on May 4, 2007. Here is my blog entry. The state filed a PR on June 4, 2007.]
[Further update: The KSC granted the state's PR on October 1, 2007. The case will likely be argued in January or March 2008.]
[Further update: The KSC affirmed the COA and Judge Parrish on May 16, 2008.]
Thursday, June 08, 2006
[Note: the link to this article has expired and I have removed it.]
Tuesday, June 06, 2006
Friday, June 02, 2006
The KSC does not take late petitions for review, ever. Unlike late notices of appeal, or late briefs, or most other things that can be fixed if the attorney admits a mistake, the KSC does not take late petitions for review (or at least I have never seen them do so and we have had to try when we have blown the deadline).
I have unsuccessfully pursued this type of claim on appeal before. The hurdles have often been (1) showing prejudice and (2) remedy.
For example, in Swenson v. State, a COA panel held that a movant could not show prejudice unless he could show that the KSC would have granted review and the appeal would have been successful. Given that only about 1 in 100 petitions for review are granted, that pretty much makes it impossible to get relief on this type of claim. [Update: Michael Whalen filed a petition for review in Swenson on June 12, 2006] [Further update: the KSC granted the petition for review in Swenson on September 19, 2006].
In Kargus, the COA correctly held that prejudice is shown because an appellant is precluded from going to federal court unless the federal claims are exhausted in state court. Therefore, even if not granted, the outcome of the appeal is different if a petition for review is timely filed. The Kargus panel held that prejudice was shown and remanded for an evidentiary hearing on whether he should be allowed to file a late petition for review.
The second part of this that has sometimes concerned judges is: what is the remedy? Appellate judges have incredulously asked me, "you really think that a district court can order the Kansas Supreme Court to accept a late petition for review?" This is an issue of some disagreement, even among my colleagues. I think that the KSC is subject to the Constitution just as much as everyone else and that they would be subject to the lawful order of the district court acting within its proper habeas jurisdiction. But even if I am wrong and the district court cannot order the KSC to take the petition for review, it has a remedy. Every habeas court has a remedy. It can vacate the conviction and order a new trial. If the KSC would take (and likely deny) a late petition for review, that would be the least intrusive remedy. But if it cannot (or will not), the conviction still violates the Fourteenth Amendment and the proper remedy would be to vacate the conviction. So even if my remedy is not possible, some remedy is. (And I would think the state would prefer my remedy!)
It will be interesting to see if any more litigation occurs in this area now that there is somewhat of a split. If you are representing a movant in a similar 1507 proceeding where the state suggests your client has to show that the KSC would have granted the petition for review, you might want to cite this unpublished case.
[Update: the state filed a petition for review on July 5, 2006]
[Further update: the KSC granted the state's petition for review on September 19, 2006. This case will likely be argued in December 2006 or possibly January 2007].
[Further update: the KSC affirmed the COA and remanded for evidentiary hearing on Mr. Kargus' claims. Here is my post on the case.]