Wednesday, December 27, 2006

Recent SCOTUS filing

Heather Cessna and I recently filed a cert petition in State v. Blanchette, a COA case holding that face-to-face Confrontation can be dispensed with under certain circumstances involving child witnesses. The COA held that the issue is governed by Maryland v. Craig, 497 U.S. 836 (1990), in which the SCOUTS did uphold such a statute by a 5-4 majority. We argued (both at the COA and now at the SCOTUS) that Maryland v. Craig was overruled by Crawford v. Washington. As Heather pointed out, if you read Scalia's dissent in Craig, it really reads like the Crawford majority opinion--the reasoning of the Craig majority is really based on Ohio v. Roberts, which is dead after Crawford. We'll keep you update in case the unlikely happens.

[Update: the SCOTUS denied the cert petition on February 20, 2007. Too bad, this will be a recurring issue]

Friday, December 22, 2006

Reno County PDs get into the holiday spirit

Here is a funny Hutch News article reporting about the Reno County PDs singing the season (humorously) down at the courthouse. Makes me wish I was home for Christmas!

Thursday, December 21, 2006

New judge in Topeka

Here is the governor's press release announcing that Larry Hendricks has been appointed to fill the vacancy to be created by District Judge Bullock. Here is the Topeka Capital-Journal article reporting on the appointment.

Wednesday, December 20, 2006

Salina acquittal

Paul Hickman won a judgment of acquittal in State v. Nava, ending a Saline County felony DUI prosecution. Similar to the last post, the state failed to provide sufficient evidence of where the crime occurred and so at the close of the state's jury trial case, Judge Hellmer granted Paul's motion for judgment of acquittal. Remember three words: location, location, location.

Tuesday, December 19, 2006

Topeka acquittal

Jennifer Roth just called and reported that she won an acquittal in State v. Lee, a Shawnee County forgery (by endorsement) prosecution. Although the jury apparently believed that Ms. Lee falsely endorsed the check, it found that the state failed to prove the check was endorsed in Shawnee County! Because the state failed to prove one of the elements--acquittal!

Friday, December 15, 2006

New district judge in Emporia

Here is an Emporia Gazette article reporting that Jeffrey Larson has been appointed district judge for the Fifth Judicial District, replacing retiring District Judge John Sanderson. Here is the governor's press release.

[Update: Here is an Emporia Gazette article reporting on Judge Larson's investiture.]

Another Wichita verdict

Mark Orr won a misdemeanor battery conviction in State v. Hardyway, a Sedgwick County severity level 7 agg battery prosecution. Here is his report:

Client charged with Agg. Batt. 7 for choking, slamming victim to ground repeatedly, putting her head through drywall in garage, hitting, kicking. Defense was that she was making it up. We called victim's mother and she testified that she was over at daughter/victims within 15 minutes of attack, and victim appeared to be sleepy, not upset or crying, no marks on her. Over my objection, court instructed on Agg Batt 7 intentional and lessers of Agg Batt 8, reckless and then misdemeanor battery. Only jury question was "Was there any evidence presented putting the defendant at the scene, other than the testimony of the victim." In spite of that, convicted on Misdemeanor Battery.

Verdicts in Topeka

Scott Gesner reports that he got an acquittal this week in State v. Holloman, a Shawnee County prosecution for criminal possession of a firearm (judgment of acquittal) and criminal discharge of a firearm at an occupied vehicle (jury acquittal): "Alibi case with some very sloppy police work and some good arguments for reasonable doubt." He also reports they have had several suppression motions granted recently! Good job at the Third!

Wednesday, December 13, 2006

Acquittal in Wichita

John Sullivan, a Wichita PD, won an acquittal in State v. Nelsen, a Sedgwick County burglary/theft conviction. Here is his report:

Client was charged with burglary, theft, and misdemeanor possession of clonazapem. Back in October of 05, he was at a family party. His dad thought he was acting funny so they left and went to client's brother's house. Dad goes back to the party. At about 10 pm, Dad comes back and client is gone. No one knows where he went. At about 2 am, the alarm goes off at a Mortgage Broker's office. Twenty minutes later, the cops show up and find a broken window. They go in and find client hiding under a desk in the dark. He's got a highlighter, a computer memory chip, and a bottle of finger polish on him. He has a receipt from Target for the nail polish. He tells the police that he doesn't know where he is. In fact, he asks where he is. He says the last thing he clearly remembers is being at a party. He rembered trees and cars honking at him, but he didn't remember going to Target and buying nail polish. He told the police that he thought the highlighter and computer chip were his but he didn't know where he got them. He tells the cops the only reason that he could think of to explain why he was in the office was that he was cold. It was a cold night and he wasn't wearing a jacket. Ultimately, he doesn't even remember talking the police or being arrested. The next thing he remembers is waking up in jail.

Back in July client starts going to a psychiatrist on his own accord. The doctor tells im he was suffering from a dissociative fugue when all of this happened, so that's what we argued to the jury.

I compared him to Dorothy and the fugue to Oz in my opening. I got the cops to admit that his actions weren't consistent with a typical burglar. I had the doctor explain what a fugue is and what causes it. I used his dad tell his story and for sympathy (there was a lot of that). Unfortunately, we couldn't argue against the lonazapem - he had bought it from a friend a few days ealier. I did tell the jury that he had a prior and current prescription for it but did not at the time of the incident.

Anyway, the jury stayed out 50 minutes and--according to them--spent a lot of that time complaining about the fact that the state even prosecuted this case. They ltimatley decided he was not guilty of the theft and burlglary, but they didn't think he needed to go to Larned.

Good job, John. And thanks to Jeff Wicks for the tip. I suspected that there are lots of good verdicts in Wichita that I am just not hearing about!

Tuesday, December 12, 2006

A little counterpoint . . .

Paige Nichols sent some counterpoint regarding my last post about trials with child victims testifying. It is important to practitioners, particularly when the state seeks to avoid the Confrontation Clause because of possible irreparable harm. Here is her note:

While the prosecutor’s concern about children’s ability to testify is probably sincere, it may not be well-supported. It is easy to fall for the argument—usually substantiated by nothing more than limited and emotionally-laden anecdotal evidence—that calling a child victim to the witness stand in a sexual abuse case amounts to a "second rape." But "available evidence suggests that testifying does not usually have severe, long-term effects" on children. Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 532 (1997). Professor Friedman cites the conclusions of a large study showing that "[o]n average, the short-term effects [of testifying] on the children’s behavioral adjustment, as reported by their caretakers, were more harmful than helpful. In contrast, by the time the cases were resolved, the behavioral adjustment of most, but not all, children who testified was similar to that of children who did not take the stand." Id. at 532 n.56, quoting Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 114-15 (1992). Indeed, "some social scientists and legal scholars believe that children may find open court testimony to be therapeutic, due to the sense of retribution and empowerment the criminal justice system can provide to victims." Katherine W. Grearson, Proposed Uniform Child Witness Testimony Act: An Impermissible Abridgment of Criminal Defendant’s Rights, 45 Boston College L. Rev. 467, 490 (2004), citing Gail S. Goodman et al., Innovations or Child Witnesses: A National Survey, 5 Psychol. Pub. Pol’y, & L. 255, 258 (1999). The actual resiliency of children is evidenced in one former prosecutor’s report that "[m]y perception is that prosecutors in many jurisdictions have learned that children can in fact be enabled to testify and be available for cross-examination."

Thanks, Paige. Great points. I think there is likely to be a lot of litigation surrounding this issue in the next few years and practitioners should be on the cutting edge!

Monday, December 11, 2006

Even prosecutors see the problems . . .

The Wichita Eagle reported some trepidation, even from prosecutors, regarding Kansas' newly enacted "Jessica's Law." Of course, defenders all along were warning that such severe mandatory sentences would probably result in a lot more trials and a lot less agreed-upon resolution of cases. As this article notes, it is seldom beneficial for a child to have to testify at a trial--at least if there is another alternative. Under a "Jessica's Law" prosecution, there is rarely another alternative.

On a side comment, I have been bothered for some time about the political realities of sentencing laws--which seem to naturally gravitate upwards with no end in sight. As the senator recognizes in the article, any legislator that ever proposes or supports any measure that legitimately and wisely suggests any sort of reduction in any sort of sentencing provision is labelled "soft on crime."

Even the sentencing commission, which is supposed to be somewhat neutral in its advice to the legislature, seems to be bogged down with this problem, being populated with lots of politicians. We saw PMo really hammered (albeit unsuccessfully) this last election cycle for his support while on the sentencing commission of some measures to restore some proportionality to a small number of sentencing provisions.

I wonder if there needs to be something analogous to the Base Closing Commissions that we have seen in the national legislature? Maybe a provision that no voting member of the sentencing commission can be in public office or eligible for public office for some term of years. And then a provision that recommendations from the sentencing commission would be adopted unless a majority votes against. Something that would give politicians sufficient cover to allow a sentencing commission to propose "smart-on-crime" sentencing laws, not just ever increasing sentences. I don't know how something like this could ever be constitutionally-supported, but it just seems like the current system almost makes it impossible to have a rationale debate about sentencing laws.

A fact not noted in the article is that, if the prosecutors are wrong and convictions occur at the same rate under "Jessica's Law," the sentencing commission projects an exponential increase in prison population, which would probably require addition of a maximum security prison in the next decade--a costly proposition.

A later Hutch News article discussed some legislators' perspectives on the issue.

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

Saturday, December 09, 2006

Insufficient affidavit

Michael S. Holland and Michael S. Holland II won in State v. Hicks, No. 93,602 (Kan. Dec. 8, 2006), overruling the COA, which had reversed (2-1) the district court's suppression of evidence in a Barton County drug prosecution. The KSC engages in a lengthy discussion of the standard of review regarding search warrant affidavits and concludes that more deference is due to the magistrate when appellate courts review a probable cause affidavit then when determining whether probable cause supports a warrantless search, which is ultimately a legal conclusion:
The phrase "substantial basis" is inherently deferential. Our inquiry is not whether we, as judges, can conclude as a matter of law that probable cause actually existed. We may conduct an independent analysis of the content of the affidavit, but we need only see enough to persuade us that there was a substantial basis for the magistrate's conclusion. This is probable cause at least once removed; i.e., deference is built into Gates' wording of the "substantial basis" standard.
The KSC went on to apply this standard and agreed with Judge Caplinger, who had dissented from the COA decision, that the affidavit was insufficient:

Even when we view the affidavit at the heart of this case in the context of the totality of the circumstances and keep in mind our Gates obligation of deference to the issuing magistrate, we simply cannot conclude that the magistrate had enough before him to establish a substantial basis for the existence of probable cause. The parts are weak, and the whole is not greater than the sum of them. Although it is possible that the concerned citizens were not anonymous to the police, or, if so, that they were nevertheless worthy of trust and their complaints accurate and corroborated, the affidavit did not say so. Although the two visitors to Hicks' home may have had more recent drug abuse and distribution histories and more numerous or more frequent visitors with similar pasts may have congregated at the house, the affidavit did not say so. Although the affiant may have based his assertion that the trash pulls came from the normal place Hicks left his trash for pickup on his own or others' observation of Hicks' behavior or on indices of residency in the bags, the affidavit did not say so. With none of this information, the affidavit did not provide a substantial basis for a fair probability that evidence of crime would be found in Hicks' residence.
The KSC noted that the prosecutor had not argued that the Leon good-faith exception could apply to save this search and therefore declined to consider that possibility.

A good day for Judge Caplinger, who dissented in two COA decisions, which were ultimately overruled by the KSC!

Friday, December 08, 2006

No reasonable suspicion

Will B. Wohlford and Ryan M. Peck from Morris Laing won in State v. Parker, No. 92,541 (Kan. Dec. 8, 2006), reversing a Sedgwick County possession conviction. The KSC held that the COA had improperly found reasonable suspicion to support an investigatory detention:

To determine whether Parker was illegally detained, we must consider whether the officers had reasonable suspicion to believe that Parker had committed, was committing, or was about to commit a crime when Hoover was arrested. At that point, the officers knew that three black men were sitting in a garage in a predominantly black community. It was mid-morning, and no one had reported any illegal activity. Officer Bachmann, who had patrolled the area for approximately 23 years, did not recognize the men in the garage as criminals or gang members. He drove up to the garage because he was curious about whether the men lived in the apartments. As Officer Bachmann drove up, Hoover looked surprised, stood up, stuffed something in his pocket, and then began picking money up from the concrete floor. Another unidentified man got up and went into a nearby apartment before Hoover and Parker approached Officer Bachmann's car and entered into a conversation with him. In response to Officer Bachmann's request, both men voluntarily raised their shirts to demonstrate that neither of them was carrying a weapon. We conclude that this evidence is insufficient to establish a reasonable suspicion that Parker had committed, was committing, or was about to commit a crime. Consequently, we hold that Parker was illegally detained at the time when Officer Bachmann asked Parker if he could check him for any contraband or drugs.
The KSC also rejected the state's claim that later consent purged the illegality. Justices Beier, Allegrucci, and Lockett would have gone even further and joined with Judge Caplinger's COA dissent holding that the encounter became an investigatory detention as soon as the officer's directed the suspects to lift their shirts.

Good day for the Fourth Amendment

Three wins in the KSC today in Fourth Amendment cases! Here's the first.

Rick Kittel won in State v. Ibarra, No. 89,011 (Kan. Dec. 8, 2006), reversing some Pratt County manufacture and other drug convictions. The KSC framed the issues as follows:

Does the strong odor of ether emanating from the interior of a vehicle without a legitimate explanation constitute probable cause to search and, if so, does the late hour and potential mobility of the vehicle constitute exigent circumstances?

After considering the requirements under the emergency doctrine, the KSC, 6-1, concluded that

[t]he strong odor of ether emanating from a house or a vehicle is as consistent with lawful activity as it is with criminal activity. We agree with the California Court of Appeals that the smell of ether alone is justification for further investigation but not for a search.

Although indicating that it would be improper to allow the state to seek validation of the search on grounds not raised and litigated at the suppression hearing, the KSC rebutted the dissent on a couple of points, holding that

application of the 'fellow officer rule' to the circumstances of this case displaces testing of the reliability of the information known by [the detective]; more specifically there are no findings by the trial court regarding the reliability of the informants. A determination of probable cause should not be based simply upon a determination that there were informants; reliability of the information is a factor.
Finally, the KSC made it clear that the COA had improperly blended the concepts of probable cause with the automobile exception:
both the [COA] and the dissent have attempted to validate the search based upon the automobile exception to the Fourth Amendment to the United States Constitution. The Ibarra [COA] simply erased the distinction between probable cause and exigent circumstances, stating that "exigent circumstances existed which provided officers with probable cause . . . ." The exception to the requirement of a lawfully issued search warrant that is at issue in this case is probable cause to search plus exigent circumstances The [COA] failed to properly apply the exception. The State must show probable cause exists whether the search is of an automobile or a residence, and if it does, then a search warrant is not required to search an automobile. The controlling factor in the present case is not whether exigent circumstances existed but rather whether probable cause existed to search Ibarra's automobile. It did not; the search was not constitutionally permissible, and the motion to suppress should have been granted.
This is a great case with a lot of thorough Fourth Amendment analysis. This case will be cited many many times in the future.

Here is the coverage of this case on

[Update: this case was voted 2006 ADO case of the year.]

Friday, December 01, 2006

Lesser verdict in Topeka

Here is a Topeka Capital-Journal article reporting that Joe Huerter got a compromise verdict of attempted second-degree murder in a Shawnee County attempted first-degree murder prosecution.