Friday, September 29, 2006
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
Monday, September 25, 2006
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!
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
[Note: the links to the Wichita Eagle articles expired.]
Tuesday, September 19, 2006
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
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 Amendment.com's coverage of this case.
Thursday, September 14, 2006
[Update: here is a nice op-ed from the Topeka Capital-Journal editorial board].
Wednesday, September 13, 2006
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
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
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?