Thursday, November 30, 2006

Magistrate not retained

I just noticed on the KSC web site that Clay County is looking for a new magistrate after Magistrate Judge Paul R. Wright was not retained this past election. I guess that is a bit of a surprise to me, given the high rate of retention for judges. I unsuccessfully looked for an article about this. Any readers know what was special about this retention election? It might be useful to actually publicize this a little bit to reinforce the idea that retention elections can actually be a check on the judiciary (to counter some of the "get rid of appointed judges" movement).

Wednesday, November 29, 2006

Some more ADO's hit the road

Two more attorneys left the ADO to seek greener pastures.

Heather Cessna, a KU Law grad, started at the ADO in January 2003. After a well-run, but unsuccessful campaign for the state legislature, Heather decided to join Amy Girard in Amy's Lawrence firm doing veteran's benefits law. Here is a link to Amy's firm's web site.

Heather had a reputation for enjoying oral argument and won a number of cases including State v. Boykins, (COA, possession conviction reversed due to Fourth Amendment violation), State v. Larraco (COA, aggravated burglary/aggravated assault convictions reversed due to improper jury trial waiver), and State v. Houston, No. 93,771 (Kan. App. March 31, 2006) (winning a new trial after a Wyandotte County second-degree murder conviction). I think Heather's most famous case, though, was probably State v. Knight, (COA, possession conviction reversed due to an improper traffic stop). You should read Knight for Judge McAnany's observation that salt has been used by people since "the dawn of human history."

We also lost Jay Witt, another KU Law grad, who had only been at the ADO a little over a year. Jay went to the Chanute Public Defender Office to try his hand at trial work. I suspect he will do quite well there. Jay has a lot of cases in the pipeline, but no big published wins yet. But keep an eye out.

Wins at the Third

Thanks to Stacey Donovan, who relayed the following big victories to me from the Topeka Public Defender Office.

Scott Gesner won in State v. Wahweotten, where client was charged with aggravated assault with a deadly weapon and misdemeanor criminal damage to property. A jury acquitted of aggravated assault and convicted of only the misdemeanor.

Similarly, Cindy Sewell won in State v. Taylor. Here is Stacey's report about the residential burglary prosecution:
Her client went into the house of a friend he'd stayed overnight with off and on. Client left a bunch of his dvds and cds at the other kid's house. Client kept calling kid to get his stuff back, but they never answered the phone or returned the calls, so client opened the door to the house and went in to find his stuff. He gathered all his own items and then decided once he was in the house to take some of their things. Cindy got the judge to make the state choose between enter into or remain therein on the burglary instruction. The state selected the "enter into..." portion because it was clear that client didn't "remain therein" after being told to leave. The jurors felt that he did not go into the house to commit a theft, he only decided to steal once he was inside. He was found guilty of misdemeanor theft.

Keep me updated on good verdicts so I can share the good news!

Acquittal in high profile case

Here is a Topeka Capital-Journal article reporting that Robert Myers won acquittals of conspiracy to riot and disorderly conduct in State v. New, a fairly high profile Cherokee County case involving several students at Riverton High School in Columbus. Judge Fleming acquitted Mr. New after a two day bench trial.

Monday, November 27, 2006

New district judge in Sixth

Here is the governor's press release announcing the appointment of Mark Ward as district judge in the Sixth Judicial District, covering Miami, Linn,, and Bourbon Counties.

Friday, November 24, 2006

Short list for Topeka district judge

Here is a Topeka Capital-Journal article reporting that the local nominating commission forwarded the names of Ruth E. Graham, Larry D. Hendricks, and Larry G. Karns to the governor to fill Judge Bullock's soon-to-be vacant position. I have only seen Ruth Graham at a CLE one time--I don't really know the other nominees at all. Here is the KSC press release regarding the short list.

Monday, November 20, 2006

Short list for Emporia district judge

Here is an Emporia Gazette article naming the list of three nominees to replace Judge Sanderson on his upcoming retirement. The nominating commission forwarded Jeffrey Larson, Blaise Plummer, and Rodney Symmonds to the governor, who must choose one to become a new district judge.

[Update: here is an Emporia Gazette article with interviews of each nominee.]

Saturday, November 18, 2006

Super Duper Lawyers

I got my edition of "Missouri & Kansas Super Lawyers" in my box last week. Here is their web site. I was all prepared to be filled with righteous indignation at the lack of criminal defense attorneys. But then the cover article is about James Wyrsch, who is described "as a giant of the Kansas City criminal defense bar" and reports on his practice. The edition also includes a nice article on Melinda Pendergraph, an assistant public defender in Columbia, Missouri who deals with capital cases.

And the top 100-ratings include several Kansas private defense attorneys that I have a lot of respect for, like Tom Bath and Dan Monnat. And in the overall rankings, within a criminal defense primary practice division, there are lots of great private practitioners--Stephen Ariagno, Pat Berrigan, Carl Cornwell, Robin Fowler, Pedro Ingonegaray, Steve Joseph, Kurt Kerns, Melanie Morgan, Richard Ney, Cheryl Pilate, just to name a few that I know personally (or know of personally).

While I had to temper my indignation somewhat, I still am somewhat disappointed in the lack of Kansas public defenders on this list, even within the criminal defense practice division. I can't imagine a list of the best criminal defense lawyers that doesn't include Wendell Betts, Cindy Sewell, and Tom Bartee from Topeka, Patrick Lewis and Michael McCullough from Olathe, Mark Dinkel and Pam Sullivan from Salina, Sarah Sweet-McKinnon from Hutchinson, Crystal Krier, Jeff Wicks, and David Freund from Wichita. And I can't imagine a list of the best appellate attorneys that does not include Rebecca Woodman, Janine Cox, Pat Dunn, Reid Nelson, and Debra Wilson. (Again, this list is not supposed to be remotely exhaustive--it's just some of the great public defenders that I personally know that I think should be on that list. I know there are many more that I have negligently forgotten or that I don't know personally).

Perhaps as public defenders, we are not very good at self-promotion. Or perhaps because of higher turnover, we don't get as many ballots (according to Super Lawyers, ballots are set to lawyers that have been in practice five years or more). Or maybe because a lot of public defenders practice in a localized area, they are not as well known in other parts of the state. And I suppose I really shouldn't care--I know that public defenders are not in it for the public glory--you are in it because of your commitment to a real free and just society.

But I guess I just wanted to say that I think there are a lot of Super Duper Lawyers who do great work every day protecting clients and defending the Constitution. They're called public defenders.

Friday, November 17, 2006

That's impaired?

Pat Dunn won in State v. Hess, No. 94,318 (Kan. App. Nov. 17, 2006), reversing a Sedgwick County drug conviction. A deputy pulled over a car because it was "hugging the line," which the deputy thought showed the driver was "concentrating harder" because of impairment. Although recognizing other cases that might consider hugging the line--along with other fact--sufficient to justify a stop, the COA held that the single observation did not:
We do not know whether Hess, when unimpaired, normally drives in a straight line adjacent to the lane divider. . . . . Thus, although the deputy articulated a suspicion that Hess was committing the crime of operating a vehicle while impaired, that suspicion was not objectively reasonable and particularized under the facts presented. It was an unparticularized hunch.
The COA also hinted that, even if the stop was permissible as a safety stop, the deputies probably exceeded the scope of a safety stop, citing State v. Gonzales, which I previously blogged about here.

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

[Further update: the KSC granted the motion to publish this decision on February 13, 2007. The published opinion is linked above.]

Thursday, November 16, 2006

Dodge City acquittal

The Hutch News reported on an acquittal in a rape case from Dodge City. The article is pretty terse--it doesn't name the defender. Anybody know more about this?

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

Wednesday, November 15, 2006

Lots of state's appeals are affirmed

Each week when I look at cases, I first look at all of the published cases and then I look at the list of unpublished cases for reversals. If they are ADO cases we get copies right away and if they are not ADO cases I can look for them on westlaw a week or so. But I have wondered for a while about how many state's interlocutory appeals are affirmed that I'm really never seeing. (The ADO doesn't generally do interlocutory appeals--they are done by local counsel). So I did a search and, lo and behold, there were more than a dozen state's appeals affirmed in 2006. I guess that surprised me a little--many reversals in state's interlocutory appeals are published, but not many affirmances. It just goes to show how much good work defenders are doing out there in the trenches--getting motions to suppress granted-- and then preserving that win on appeal.

Here is a (rather long) list of the cases I found (which is probably not exhaustive). I will try to search a little more regularly! (And, as always, I would really appreciate being updated when you have good things happen in district court--good verdict, good motion, etc. so that I can pass it along to other defenders through this blog).

Just a quick observation--it seems a little odd to me that the state so infrequently petitions the KSC for review of their COA losses in interlocutory appeals (only 1 in 14). Perhaps the state (wisely) wants to avoid making bad law. In any case, remember that we can cite unpublished decisions if you attach a copy to your pleading/motion.

  • Ty Wheeler won in State v. Russell, No. 94,116 (Kan. App. Dec. 30, 2005), affirming Judge Wheeler's suppression of evidence in a Lyon County drug prosecution due to an illegal stop (no reasonable or articulable suspicion for stop). [No petition for review filed].
  • Monte L. Miller won in State v. Giger, No. 94,854 (Kan. App. March 10, 2006), affirming Judge Sanderson's suppression of evidence in a Lyon County DUI prosecution due to an illegal stop (insufficient evidence that car was involved in "exhibition of speed"). [No petition for review filed].
  • Sam Kepfield, Gregory bell, and Bryan Hitchcock won in cases consolidated under State v. Albright, No. 94,022 (Kan. App. March 3, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an insufficient warrant (minimal surveillance insufficient to create probability that drugs could be found at apartment). [No petition for review filed].
  • Jason Billam and Courtney Henderson won in State v. Taylor, No. 94,382 (Kan. App. March 3, 2006), affirming Judge Tatum's suppression of evidence in a Johnson County drug prosecution due to an improper search incident to arrest (no arrest, so no search incident to arrest; even though probable cause to arrest later, improper search incident to arrest was 2.5 hours before "proper" arrest on probable cause=too remote). [No petition for review filed].
  • Sonya Strickland, a Junction City public defender, won in State v. Penland, No. 94,378 (Kan. App. Feb. 24, 2006), affirming Judge Hornbaker's suppression of evidence in a Geary County drug prosecution (no actual or apparent authoirty to search bedroom; cannot use inevitable discovery where no warrant ever applied for and not certain). [No petition for review filed].
  • John Duma won in State v. Franco, No. 94,946 (Kan. App. May 5, 2006), affirming Judge Boeding's suppression of statements in a Wyandotte County first-degree murder prosecution based on a Sixth Amendment right to counsel violation (Michigan v. Jackson, 475 U.S. 625 (1986) holding that police initated interrogation after assertion of Sixth Amendment right to counsel renders any waiver invalid). [No petition for review filed].
  • Charles O'Hara won in State v. Martinez, No. 93,862 (Kan. App. May 19, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an improper stop (stop not supported by reasonable suspicion; officers did not see exchange of drugs or other suspicious circumstances supporting stop). [No petition for review filed].
  • Blake Cooper, a Reno County public defender, won in State v. Felty, No. 95,214 (Kan. App. July 7, 2006), affirming Judge Rome's suppression of evidence in a Reno County drug prosecution due to an improper investigatory stop; suspect's actions only supported a hunch, not an objective basis for suspicion of criminal activity). [No petition for review filed].
  • Frederick Meier won in State v. Henning, No. 95,708 (Kan. App. July 14, 2006), affirming Judge Fowler's suppression of evidence in a Lyon County drug prosecution due to an improper traffic stop (no violation to fail to signal upon turn from private parking lot on to street). [No petition for review filed].
  • JoAnna Derfelt won in State v. Kirby, No. 95,109 (Kan. App. Aug. 4, 2006), affirming pro tem Judge Gayoso's suppression of evdience in a Crawford County drug prosecution due to an improper traffic stop (seeing someone exit a truck, enter another vehicle, and return to car suspicious, but not illegal). [No petition for review filed].
  • Michael Bartee won in State v. White, No. 93,687 (Kan. App. Aug. 4, 2006), affirming Judge Anderson's suppression of evidence in a Johnson County drug prosecution due to officers improperly exceeding the scope of a traffic stop (although initial questioning that exceeded scope of traffic stop was based on reasonable suspicion, after officer received explanation of suspicious behavior, reasonable suspicion diminished and detention became illegal). [No petition for review filed].
  • Julie McKenna won in State v. Wilson, No. 95,028 (Kan. App. Aug. 18, 2006), affirming Judge Hebert's suppression of evidence in a Saline County drug prosecution due to warrantless search without proper consent (back yard of duplex is part of curtilage; reasonable expectation of privacy in trash located in back yard area; district court found no consent). [No petition for review].
  • Michael Johnston won in State v. Hollister, No. 95, 827 (Kan. App. Oct. 13, 2006), affiming Judge Schmisseur's suppression of evidence in a Pratt County drug prosecution due to an improper stop (telling officers not to come near him while on private property terminates any voluntary encounter; continued questioning improper seizure, not voluntary encounter). [No petition for review filed].

Thursday, November 09, 2006

Speedy trial reversal

Pat Dunn won in State v. Clemence, No. 92,114 (Kan. App. Nov. 9, 206), reversing Dickinson County manufacture and other drug convictions on statutory and constitutional (both Fifth and Sixth Amendment) speedy trial grounds. The COA had little trouble finding all of the factors required for a constitutional speedy trial violation:

[W]e conclude that (1) the length of the delay (more than 2 years from arrest to trial) was presumptively prejudicial, especially considering the clear violation of the statutory period; (2) the reasons for the delay, although shared to some extent, were principally attributable to the State, for its motion practice and appeal of magistrate ruling, together with the inexplicable dismissal and refiling of charges; (3) Clemence timely asserted his right; and (4) Clemence was prejudiced by the delay.

As to our prejudice conclusion, we are mindful that the district court concluded otherwise, but we disagree for the following reasons: (1) The record is replete with statements from witnesses about how long ago the incidents occurred (especially Detective Demars); (2) Clemence had to argue bond amounts numerous times and was incarcerated during much of the elapsed time; (3) the dismissal and refiling was "done to gain a tactical advantage by the State"; (4) the defendant's discomfort, oppressive pretrial incarceration, anxiety, and concern must be considered prejudicial; (5) Clemence had employment, housing, and transportation problems resulting from the delay; (6) the delay enabled the State to convince [a witness] to testify against Clemence, which the defense claims could not have been achieved until after the case was refiled.

Nice result in a published case.

[Update: the state filed a petition for review on December 8, 2006]

[Further update: the KSC denied the state's petition on February 13, 2007 and the mandate has issued].

And then there were three . . .

Here is a link to the KSC news release reporting that the Supreme Court Nominating Commission has forwarded COA Judge Lee Johnson, COA Judge Tom Malone, and district judge Robert Fairchild to the governor for appointment to fill Justice Allegrucci's soon to be vacant seat. Here and here are links to my previous coverage of this vacancy.

McCarville wins district judge post in Hutch

The Hutch News reported that Magistrate Judge Joe McCarville beat Chief Public Defender Sarah Sweet-McKinnon for the district judge seat being vacated by Judge Becker. Today, the Hutch News reports that Ms. Sweet-McKinnon and Legal Services for Prisoners attorney Cheryl Allen have both expressed interest in McCarville's magistrate judge seat. Here and here are previous posts about this election.

[Update: The Hutch News reported on the persons seeking to fill the magistrate position.]

[Update: The Hutch News reported that Cheryl Allen and Randy McEwen were nominated to fill the magistrate postition.]

[Note: the links to the Hutch News articles have expired.]

Tuesday, November 07, 2006

Cert petition denied

The SCOTUS denied Janine Cox' cert petition in Washington v. Kansas, which sought, in part, to apply Apprendi to minimum sentences (i.e. reverse Harris v. U.S., 536 U.S. 545 (2002)). Here is the SCOTUS order. The SCOTUS had ordered the state to respond and had set the matter over for a second conference date, but denied cert on Monday. Just FYI, the ADO is continuing to file cert petitions in hard-50 cases and in guidelines cases where criminal history makes a difference (especially with juvenile adjudications). So keep objecting at the trial level based on Apprendi.

Monday, November 06, 2006

Another lesser verdict

The Hutch News reports that Richard Ney won a voluntary manslaughter verdict in State v. Shore, a premeditated first degree murder prosecution from Stanton County in western Kansas.

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

Thursday, November 02, 2006

Lesser verdict

Here is a Lawrence Journal-World article reporting that Albert Freeman got a lesser-included offense verdict of second-degree murder in State v. Espinales, a Douglas County first-degree premeditated murder prosecution. According to the article, the jury split the difference between the state's theory and the defense theory of voluntary manslaughter.

Wednesday, November 01, 2006

Nice Fourth Amendment compilation

Thanks to the Tenth Circuit Blog who had this link to the Ninth Circuit Blog linking to a nice Fourth Amendment compilation from the Oregon Federal Public Defender dealing with these issues from the defense perspective. I thought it was well presented and can be a good reference for any Kansas attorney looking for that case that is on point in his or her favor.

By the way, although I try to read the Tenth Circuit cases when they come down, the Tenth Circuit Blog is definitely the best resource for updates on criminal law in that court. The Ninth Circuit Blog is also a great resource, both because the people who write it are great attorneys and because the Ninth Circuit is a great source of law.