Wednesday, May 30, 2007

Judge Dowd stepping down

Here is the Topeka Capital-Journal article reporting that District Judge Dowd will be retiring after 30 years on the bench in Shawnee County. Because I don't practice much in district court, I don't have a lot to say about Judge Dowd, although he has seemed like a pretty friendly guy when I have met him in person.

Tuesday, May 29, 2007

Emporia acquittal

Here is an Emporia Gazette article reporting that Tom Lemon won an acquittal in State v. Marks, ending a Lyon County misdemeanor vehicular homicide prosecution.

Monday, May 28, 2007

Downward departure draws SL&Ps ire

Here is a blog entry on Sentencing Law & Policy reporting (and expressing suprise) at a downward dispositional departure won by Cindy Sewell in State v. Cisneros, a Shawnee County rape prosecution. Here is the Topeka Capital-Journal article discussed in the blog entry. I think Professor Berman should be cautious about drawing conclusions from the reporting we see in Topeka cases, which is frequently somewhat one-sided.

I note on the court docket that the district court did impose an underlying 155-month prison sentence for this first time offense. If Mr. Cisneros does not comply with all terms of probation, he has a very lengthy prison sentence awaiting for the crime. I don't know anything about the facts of this particular case (and am somewhat more unwilling to draw conclusions from the C-J report than Professor Berman), but Kansas law certainly allows judges to impose dispositional departures, for any crime on the grid, so it clearly contemplates that someone convicted of exactly these charges could seek and receive a departure if warranted by the facts.

It's sort of interesting because Professor Berman has advocated a offender/offense dichotomy with regard to application of Apprendi to various facts (see his entry and his blog for more details), but focuses entirely on the facial offense-facts in this case without entertaining any possiblity that their might be offender-facts that would justify mitigation in this case. The article notes that the prosecutor will appeal (or cross-appeal as the case may be). We will likely have the opportunity to see whether the appellate court (apprized of all the facts) thinks the district judge abused his discretion or not. I think I will reserve judgment until I see the actual record of sentencing rather than the C-J report for a fuller understanding of the facts.

[Update: here is Topeka Capital-Journal article reporting that Bill O'Reilly has jumped onto this bandwagon to attack the departure sentence imposed in this case].

[Further update: Mr. Cisneros' probation was revoked on August 9 for drug use. Here is the Topeka Capital-Journal article report. I guess we'll never know what the appellate court would have thought!]

Friday, May 25, 2007

Acquittal in Wichita

John Sullivan and Quentin Pittman won an acquittal in State v. Cochran, a Sedgwick County rape prosecution. Reportedly, the jury was pretty reluctant to acquit and apologized to the prosectuor, but felt compelled by their oath to make the finding according to the law and evidence. Nice to hear a jury that understands that the right road isn't always the easiest or most comfortable one!

Friday, May 18, 2007

Prior bad acts win

Pat Dunn won in State v. Dayhuff, No. 94,797 (Kan. App. May 18, 2007), getting a new trial in a Labette County agg indecent liberties case. The COA agreed that the trial court improperly admitted bad act evidence that was not "strikingly similar" and therefore not proper to show plan. The COA also agreed that the trial court should have held an immediate hearing to inquire into allegations that a child advocate was coaching the child witness during her testimony. The trial court would not hold a hearing during trial, but said it would take it up at a motion for new trial if necessary. The COA held that Mr. Dayhuff was entitled to immediately inquire into the situation and make a record. The trial court erred by delaying the hearing on the allegations for months until the motion for new trial.

I suspect this kind of coaching goes on quite a bit in cases with child witnesses (often times it may be sort of subconscious). But in the context of a trial and in light of the Confrontation Clause, it is quite damaging. The lawyer in Dayhuff had a witness in the courtroom to testify to the child advocate's improper actions. It is probably a good idea to have a witness around when children are testifying with a parent or child advocate present in the courtroom. (Maybe this is true in other cases with adult witnesses too).

[Update: the state did not file a PR and the mandate issued on June 21, 2007].

Monday, May 14, 2007

Suppression granted in federal court

Thanks to for blogging on U.S. v. Lopez, No. 06-20183-01-JWL (D. Kan. April 30, 2007), where Judge Lungstrum granted a motion to suppression order in a federal drug prosecution. Judge Lungstrum followed a recent Kansas COA case, State v. Ross, (blogged about here) in holding that simply crossing the fog line once did not constitute reasonable suspicion that the driver violated K.S.A. 8-1522. Judge Lungstrum also rejected the government's claim that other factors provided reasonable suspicion to justify the stop.

As FourthAmendment. com comments, suppression orders are few and far between in federal court. Anyone know who is representing Mr. Lopez so I can give credit where credit is due?

Friday, May 11, 2007

Lesser verdict in Rose trial

Here is a Lawrence Journal-World article reporting that jurors returned a verdict of involuntary manslaughter in a high profile Douglas County felony murder trial. Here is the Topeka Capital-Journal coverage. Here is previous blog coverage of the mistrial in the first trial.

[Update: here is a Lawrence Journal-World article reporting on the sentencing in this case].

Monday, May 07, 2007

Free at last . . .

Yesterday Judge Tatum resentenced Jimmy Fayne to 107 months (his original sentence was 228 months). With good time, he will likely be out sometime later this year. If you would like to read about the seven-year long saga, look here at my previous entry.

Smurf that!

Nathan Webb and Sarah Morrison won in State v. Glassock, No. 96,109 (Kan. App. May 4, 2007) (unpublished) reversing a Sedgwick County drug prosecution on Fourth Amendment grounds. Ms. Glassock and her friend went into a Wichita Target store and each separately bought some Sudafed. The women left separately and got into a truck with Oklahoma tags. The officers were suspcious that the women were "smurfing," where persons from out of town make repeated small buys at several different places. The officers detained the women, leading to an eventual search and discovery of evidence supporting the drug charges.

The COA followed previous cases holding that a split purchase of Sudafed by itself does not provide reasonable suspicion that a crime is about to be committed. The state relied heavily on the fact that the truck had Oklahoma tags. But the COA was not persuaded:
Although the state presented testimony that Oklahoma had more restrictive laws and that the department had experienced a large increase in arrests of Oklahoma residents coming to Wichita to purchase methamphetamine ingredients, this fact would not appear sufficient to create reasonable suspicion justifying the detention of an individual. It is incongrous in a Fourth Amendment analysis to find that facts insufficient to rise to reasonable suspicion for persons from Kansas or 48 other states in the union can without more satisfy the reasonable suspicion standard simply because the individuals are believed to be from Oklahoma.

By the way, for all of you young'uns, smurfs are cartoon characters. Here is a Smurf.

[Update: the state filed a PR on June 4, 2007].

[Further update: the KSC denied the state's PR and the mandate issued on November 8, 2007.]

Saturday, May 05, 2007

Threat to take away the kids is a threat

Jennifer Roth won in State v. Brown, No. 96,862 (Kan. App. May 4, 2007) where the COA affirmed Judge Parish's order suppressing her client's statements in a Shawnee County child abuse prosecution:

When a parent is essentially compelled to choose between confessing guilt in abusing his or her own child or losing his or her parental rights, the choice is between two fundamental rights under the constitution. . . . Clearly, it was entirely appropriate for the district court to consider the pressure placed on Brown by the CINC proceedings in considering the totality of the circumstances surrounding his confession. We think this was especially important here, given the assessment of SRS that Brown may have been predisposed to falsify an admission of his guilt "just to get the kids

Having been subjected to persistent pressure from SRS and the CINC proceedings, and faced with the inevitable loss of his parental rights, Brown succumbed and made a confession that would subject himself to a criminal prosecution. Notwithstanding his stated motivations and his being given Miranda rights at the time of the statement, we decline to second-guess the district court, which determined from the totality of the circumstances that Brown's statement was not freely and voluntarily made.

The State argues that the police "did nothing wrong" after Brown arrived at the station and made his statements and that our focus should be limited to these circumstances. We believe, however, that such a limited focus of the inquiry could provide unlawful safe harbor to coercive conduct prior to the precise moment of the statement. For example, would the Constitution permit admission of a statement resulting from a post-Miranda encounter when the encounter itself was provoked by a psychologist employed by a state agency for the purpose of provoking a confession? We believe that established precedent in Kansas and in the federal courts compels an examination of the totality of the circumstances, and such an inquiry must not be limited strictly to behavior immediately prior to a suspect's statement but rather should focus on any and all aspects of the circumstances that may have bearing on whether the suspect's will was overborne when the statement was made. As stated by the United States Supreme Court:

"We think its clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in each case is whether the defendant's will was overborne at the time he confessed. If so, the confession cannot be deemed 'the product of a rational intellect and a free will.'" Lynumn [v. Illinois, 372 U.S. 528, 534 (1963)].

The COA cited several out-of-state cases supporting the idea that threats to take away your children are coercive. Seems like a risky choice for the state to have appealed this order.

Here is my previous blog entry on this case.

[Update: 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 spring 2008].

[Further update: the KSC affirmed the COA and Judge Parrish on May 16, 2008.]

Tuesday, May 01, 2007

PIK3d Crim on line

While I was doodling around on the Judicial Council web site for the previous post, I discovered (here) that it has also placed some other resources on line for free to admitted, active Kansas attorneys, including the Pattern Instructions for Kansas 3d-Criminal and the Kansas Municipal Court Manual. Maybe everyone else knew about this, but it was news to me and might be a nice resource (sometimes PIK instructions are hard to keep up on). I wonder if the Judical Council is contemplating putting anything else on this?

Appellate Practice Handbook online

The Kansas Judicial Council has recently posted a newly revised Appellate Practice Handbook on line for public access here. You can just access it on line or there is a link if you would prefer to download it as a big .pdf file and save it and/or print it. This is the same handbook that was handed out at the Appellate Practice Symposium last week and it is yours for free! Be sure to look at it if you have any interest in appellate practice in Kansas.