Saturday, July 29, 2006

Bye bye birdie

The next of our ADO attorneys flew the coop Friday. Amy Girard, a Washburn Law School grad, started here in February 2004. Prior to working here, Amy had worked as the motions attorney at the COA. She has also been working in her own family firm, which specializes in representing veterans seeking benefits. Here is a link to her law firm's web site.

At this point in her life, Amy decided that she needed to devote her full time to the law firm (which is in Lawrence, saving her a commute). She is a real believer in the right to an appeal in criminal appeals and her court perspective has been invaluable on many, many occassions. Plus, Amy adds a lot of laughter (albeit loud laughter) to the office. I am sorry to see her go, but am glad she will still be helping people who desperately need help navigating the legal system.

In her fairly short time here, Amy handled a lot of big cases including a win in State v. Jones, (KSC, reversing felony murder trial based on failure to give lesser).

Perhaps her most infamous case, though, was State v. Bryan, which answered the age-old question: if a guy gets an erection, but nobody is awake to see it, is it lewd and lacivious behavior? [Unbelievably, the answer is yes!]

We will be looking to fill Amy's position asap. If you know of anyone that would be interested, have them send a resume to Pat Lawless.

Thursday, July 27, 2006

Follow up on SVPA win

Back in February, I reported on Jessica Kunen's win in In re Foster. (See here for prior blog). Here is a Lawrence Journal-World article following up on that matter indicating that Mr. Foster is set to be released.

Wednesday, July 26, 2006

More sad news

This news from Patrick Lewis at the Johnson County Public Defender Office:
Probably by now all of you have heard, but just in case I'm writing to let you know that at 5:15 this morning our friend and brother, Byron Cerrillo, passed away. His death leaves us with great sorrow and grief. He was a great trial lawyer, teacher, boss and public defender. He challenged each of us to be the best we could be. We will remember him always and miss him dearly.

He began feeling ill about June 15th and saw his doctor immediately. Within two weeks he had a diagnosis of probable pancreatic cancer. Surgery was scheduled for July 7th. His surgery was extremely difficult and left him very weak. His condition seemed to get a little better and then worse. This morning he slipped away. He is survived by his wife, Kelly, daughter, Jenny, step daughter, Shelly and step sons, James and Chris and step daughter Jennifer and several grandchildren.

Services are Friday July 28, 2006. Visitation with the family will be 11:00 a.m. to 1:00 p.m. Memorial service will begin at 1:00 p.m. They will be at McGilley &
Fry Funeral home in down town Olathe, 105 E. Loula, (913) 782-0582. The family will be receiving visitors at the home after the service.

The family is requesting in lieu of flowers, donations to a memorial fund in Byron's name for litigation students at Center for Trial Advocacy at Washburn Law School or the American Cancer Society. Donations can be made at, or can be sent through, the funeral home.
What a terrible blow. I was just working with Byron in May at the Intensive Trial Advocacy Program at Washburn. His commitment to the students was obvious; he would always stay late into the evening to be available for them and they were glad for his help. I never worked directly on a case with Byron, although I did several appeals and they were always well litigated and well preserved records. In every interaction I had with him with BIDS and at Washburn, he always was the model of what a public defender should be.

Here is a link to the Kansas City Star obituary. The Star had a nice article about Byron.

[Note: the link to the Kansas City Star articles have expired.]

Sedgwick County attorneys rate judges

A Wichita Eagle article reports about a recent survey of Sedgwick County attorneys rating Sedgwick County judges. Judges Pilshaw and Kennedy came in at the bottom of that rating. I have no comment whatsoever. It will be interesting to see if that would make any difference in the eyes of the voters in Judge Kennedy's upcoming election.

On a related note, this last session, the Legislature enacted a new independent commission of the Judicial Council called the Commission on Judicial Performance. Here is the bill itself and here is the conference committee report that nicely summarizes the bill. I used to practice in Arizona and it has an active evaluation process for retained judges. This is a good process for the retained judges. Occassionally, judges get someone mad at the regarding a particular case (i.e. Paula Martin in Douglas County re giving a departure sentence) and those persons stir a campaign to not retain the judge. An evaluation by the commission saying that, in general, the judge is doing a good job is very useful to a judge in that situation. And bad judges have lost retention elections in Arizona after poor evaluations (rare, but it happened). So make sure to take an interest in the evaluation process as it develops here in Kansas.

[Note: the link to the Wichita Eagle article has expired.]

Reno County judicial election heats up

I saw a Hutch News article on the impending judicial Republican primary election in Reno County pitting Magistrate Judge McCarville vs. Rick Roberts vs. Tom Stanton. I thought the funny part of Tom's quote is how it will be a level playing field in his courtroom, but singles out defendants as the cause of caseload management issues.

By the way, did I mention that a public defender is running as a Democrat for that judicial position? See here.

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

Saturday, July 22, 2006

What can an appellate judge do?

Howard Bashman has this interesting article at on whether appellate judges should be allowed/encouraged to look at blawgs related to substantive matters in pending cases. We have been dealing with a slight variance of this question at the ADO in the past few weeks.

In State v. Smith, a Pottawatomie County jail credit case, Matt Edge had filed a brief and the state had responded conceding that Mr. Smith should get a hearing. A few weeks before the calendar date, however, we got an order from the COA stating that according to KASPER, Mr. Smith was an absconder and requiring us to prove that he was within the jurisdiction of the district court or face dismissal pursuant to State v. Scott.

We have been getting more of these types of orders since DOC went on line with its population information. The question is: is it proper for the COA sua sponte to look at and/or rely on a web site that is not part of the record and which itself disclaims its own accuracy?

We responded with a motion to reconsider the order citing Canon 3 of the Rules of Judicial Conduct, which prohibits judges from conducting independent investigations, but requires judges to decide the case on the record brought before them. We also cited K.S.A. 60-409 and -412, dealing with judicial notice, which allow appellate judges to take judicial notice of facts of generalized knowledge that are easily confirmed by reference to a source of indisputable accuracy. An inmates custody status is neither a fact of generalized knowledge nor is KASPER indisputably accurate. (For example, in the area of persons listed as "DOC warrant issued" or "absconder, it may only mean that the inmate failed to report to his/her parole officer. It does not mean that the person has actively avoided judicial process.)

In Smith, the COA didn't act on the motion to reconsider right away, so we ended up filing a petition for review 30 days after the order to show cause was issued. About a week ago, Mr. Smith was returned to Kansas and we so notified the COA. Yesterday, the COA issued an opinion reversing and remanding for a hearing on jail credit and separately withdrew its order to show cause.

Friday, July 21, 2006

Ah, K.S.A. 22-2501, we knew you so well

Rick Kittel won in State v. Vandevelde, No. 94,613 (July 21, 2006), reversing a Shawnee County drug conviction based on an improper search under K.S.A. 22-2501. The trial court had ruled the search was a proper search incident to arrest, but the COA disagreed holding that it did not meet the statutory requirement that the search be limited in scope to searching for fruits or instrumentalities of the crime. The COA also rejected claims that the search was supported by exigent circumstances and as an inventory search.

By the way, the state snuck in legislation late in the session this last year to amend K.S.A. 22-2501 to now read that officers may search incident to arrest for fruits and instrumentalities of "a" crime instead of "the" crime. (Here is the text of the bill signed by the Governor). This has been repeatedly tried by the KBI ever since State v. Anderson was decided based on K.S.A. 22-2501. I have testified against such attempts on at least three occassions, (i.e. here) but this year it kind of came about in conference committee at the end of the session and got through. So now cops can go on a fishing expedition upon any arrest, right? WRONG!

Here is an excerpt from my testimony on this subject before the Legislature:
Finally, it is not clear that the proposed amendment would even survive constitutional scrutiny. In State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), the Kansas Supreme Court reviewed K.S.A. 22-2501 and its relationship to the Fourth Amendment. In that case, prosecutors argued that, in New York v. Belton, 453 U.S. 54 (1981), the United States Supreme Court allowed broad searches incident to arrest. But the Kansas Supreme Court noted that "Belton may expand the scope of the constitutionally permissible search of a vehicle but not the permissible purpose of the search." 259 Kan. at 23 (emphasis added). In fact, the Belton court re-emphasized that "[t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation." 453 U.S. at 457 (citing Terry v. Ohio, 392 U.S. 1 (1968)). HB 2541 appears to do exactly what the Kansas Supreme Court indicates was not authorized by Belton, expand the permissible purpose of a search incident to arrest.
So keep filing those motions to suppress when the search exceeds the scope of the arrest warrant. Although the COA has not been that great for us lately, Rick's case today is a good example that it is still taking the Fourth Amendment pretty seriously.

[Update: the state did not file a petition for review and the mandate issued August 24, 2006]

Tuesday, July 18, 2006

A farewell to Nate

We are starting to undergo some changes here at the ADO. Nathan Webb started at the ADO, his first job out of KU Law School, in October 2000. For the last two years, Nathan served in a duel role as an appellate defender and as a visiting assistant professor at the Washburn Law School. In that position, Nathan taught a course called criminal appellate advocacy, where he worked with a small number of students on actual ADO cases, some of which are pending before the Kansas Supreme Court right now. (See here and here). Nathan developed that class from scratch and was extremely well received by the faculty and students at Washburn. (See here).

Nathan's wife just finished her Ph.D. at KU in May and accepted a position at Kent State in Ohio. They just relocated there last week. Nathan and Sanna are also expecting their first child this fall, so there are just tons of changes in their household.

Nathan had a lot of highlight cases in his six-year tenure at the ADO including: State v. McElroy, (KSC, vacating failure to register conviction for defective complaint and improper venue); State v. Norton, (KSC, reversing drug convictions based on newly discovered evidence); State v. Boyd, (KSC, reversing drug convictions based on Fourth Amendment violation); and State v. Wilson, (COA, reversing drug conviction based on Fourth Amendment violation).

But I think I will always remember Nathan most fondly for State v. Jackson, No. 87,961 (Kan. App. 2002) (hereinafter "the thong-song case"), an unpublished win in November 2002, reversing a Sedgwick County aggravated robbery case due to prosecutorial misconduct. Here is an exceprt from Nathan's brief (which I truly hope to be able to make available on .pdf someday so that you can see the pictures):

About 1:00 a.m., the hit dance song by Sisqo "The Thong Song" came on over the club’s loudspeakers.(R. V, 315). The enormously popular song, for which Sisqo was nominated for a Grammy, describes the singers love of G-String underwear:

She had dumps like a truck.. truck.... truck, Thighs like what... what... what, Baby move your butt... butt... butt. I think I’ll sing it again... (Refrain)... I love it when your booty goes... I love it when your booty shows... that Thong, tha-thong, thong, thong.

When the song came on, Mr. Jackson immediately noticed a cute woman "dancing sexually" on top of a large speaker that acted as a stage surrounding the dance floor. (R. IV, 240). According to at least one witness, the girls were pulling down their pants and exposing their thong underwear to the crowd. (R. V, 315).

I will be taking Nathan's position at Washburn Law School this fall. I am looking forward to a little change of scenery and I am hoping to really educate students to the critically important work that defenders perform in our legal system. That's my goal anyway! I will still be at the ADO, too. I'm not actually sure the time split yet.

Waiver of appointed counsel is not waiver of all counsel

James L. Sweet won in a DUI sentencing case in State v. Slick, No. 95,258 (Kan. App. July 14, 2006)(unpublished). The COA held that a prior municipal conviction should not have been used to enhance the instant DUI conviction. The COA agreed with the defense argument that, although Mr. Slick had signed a form regarding waiver of appointed counsel, he did not explicitly waive the right to counsel.
The 1992 and 1993 waivers stated: “I do not wish to have an attorney appointed by the Court but wish to retain an attorney on my own or to present my own defense and arguments to the Court. I waive my rights to have a court appointed attorney represent me.” Unlike the waiver suggested by [In re Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985)] that explicitly stated the defendant did not want retained or appointed counsel, the 1992 and 1993 waivers actually invoked the desire for retained counsel.
This is a great example of how I think prior municipal convictions that matter in criminal history should be a ripe area for litigation. See, e.g., State v. Allen.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]

Another 60-455(dd) case

Quentin Boone won in State v. Noah, No. 91,353 (Kan. App. July 14, 2006)(unpublished), reversing aggravated indecent liberties convictions from Rooks County. The state admitted several out-of-court statements made by a child to law enforcement officers, a social worker, and a court-appointed evaluator. The COA applied Crawford and Davis and held that a reasonable person in the child's position would believe that the statements might be used prosecutorially and, thus were testimonial.

The state also argued that Mr. Noah had the right to confront the declarant at the preliminary hearing. [Apparently, Mr. Noah conceded that the victim was unavailable, the other half of the Confrontation Clause requirement for using out-of-court testimonial statements]. The COA held that the sufficiency of the opportunity to cross-examine was a question of law and, on de novo review. Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Kansas cases applying Van Arsdall, the COA held that where the declarant became emotional and could not complete cross-examination at preliminary hearing, Mr. Noah was prevented from effective cross-examination.
The state also argued that Mr. Noah forfeited the right to Confrontation when his attorney harassed the child at preliminary hearing. The COA held that case law seems clear that in order for forfeiture to apply, the defendant himself or herself must have caused the inability to testify, not defendant's lawyer. And, in any case, the COA held

the record simply does not demonstrate misconduct by defense counsel here. While defense counsel's questioning at the preliminary hearing could not be described as articulate, the record does not permit us to conclude defense counsel intentionally harassed T.C. to the point she was unable to testify. We decline the State's apparent invitation to "read between the lines" to find such egregious misconduct.
For other cases in this developing line see here.

[Update: the state (by the Attorney General's office) filed a petition for review on August 14, 2006]

[Further update: the KSC granted review on December 19, 2006. The case will likely be argued in mid-March or possibly late April.]

[Further update: the KSC affirmed the COA on July 27, 2007. Here is the case. And here is my blog entry on that case.]

Friday, July 14, 2006

If you charge it, you have to prove it

Michelle Davis won in State v. Chafee, No. 94,218 (Kan. App. July 14, 2006), reversing an Osage County aggravated kidnapping conviction. The state charged Mr. Chafee with kidnapping with intent "to facilitate the commission of a crime, to-wit: murder in the second degree." The jury was instructed, however, that the state only had to prove that Mr. Chafee committed kidnapping with intent "to facilitate the commission of any crime." During deliberations, the jury asked whether the instruction included counts that weren't charged; the district court did not provide a meaningful response. The jury acquitted Mr. Chafee of homicide charges, but convicted of aggravated kidnapping.

The COA reversed holding that while the state is not required to charge a specific predicate crime, "if cannot charge him or her with aggravated kidnapping to facilitate murder and then convict him or her for kidnapping to facilitate a crime different from that which is identified in the information." The COA distinguished previous cases that had found such error harmless. Particularly given the jury's question and the acquittal of the homicide charges in this case, the COA held the error could not be harmless.

As a completely trivial aside, did you know that the words "to-wit" are technically called the "videlicet"? Just thought you'd like to know.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]

Prejudice can outweigh probative value?

Carl Folsom won in State v. Bailey, No. 94,412 (Kan. App. July 14, 2006)(unpublished), reversing a Geary County possession conviction. The COA agreed with Carl's argument that it was improper for the district court to introduce a three-ring notebook found at a residence containing documents belonging to Mr. Bailey. Unfortunately, it also included a substantial number of documents related to Mr. Bailey's status on probation, and matters involving other criminal cases. Even though the district court gave a proper 60-455 limiting instruction, the COA held that the contents of the notebook were irrelevant or only minimally relevant and that the prejudicial effect of the contents was substantial. This is an example of the new willingness of an appellate court giving de novo type review to an evidentiary question. (See here for previous discussion).

The state also argued that because Mr. Bailey was acquitted of eight of nine charges, any error was harmless. The COA agreed that "This verdict suggests that Bailey may not have been substantially prejudiced by the admission of [the notebook]." I have argued that such a verdict should make it harder to find an error harmless. In any case, the COA held that the improper admission of the notebook's contents warranted reversal.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]

Thursday, July 06, 2006

Life for Moore

Kansas Death Penalty Focus has blogged on the Wichita Eagle article reporting that, despite a provoked outburst from Mr. Moore during the penalty phase, Mark Manna and Gary Owens helped the jury see that life is a better option than death.

[Note: the link to the Wichita Eagle article has expired.]

Saturday, July 01, 2006

It's not reasonable just because the prosecutor blew it too.

A defendant won a partial victory in a 2255 proceeding before Judge Brown in Alverez-Solario v. U.S. Mr. Alverez-Solario successfully claimed that his attorney was ineffective at sentencing for failing to notice and object that he was wrongly sentenced using the 2004 guidelines instead of the 2003 guidelines. What I thought was sort of audacious was that the AUSA argued that the mistake was not objectively unreasonable because the AUSA and probation office also failed to notice the mistake. Judge Brown succinctly held that he "could not that the error was objectively reasonable because the AUSA made the same mistake." Whew, I guess I should be held to a higher standard than a prosecutor when it comes to representing defendants.

Judge Vratil dismisses federal prosecution on speedy trial claim

Carl Cornwell and Jackie Rokusek won dismissal of drug, explosive, and firearms charges in U.S. v. Rose. Here is a link to the Topeka Capital-Journal article reporting on the dismissal.