Tuesday, January 30, 2007

Cunningham in Kansas

If you don't know about Cunningham v. California, you obviously haven't read Professor Berman's Sentencing Law and Policy blog or any other blog about criminal law or the SCOTUS lately. If so, please read both the opinion and commentary and then come back to this blog.

. . . . Okay, everybody read them?

The question for us is, does this case matter in Kansas? We already won the battle applying Apprendi to our sentencing guidelines in State v. Gould way back in 2001, years before Blakely v. Washington. (Thanks to Kirk Redmond really being on top of Apprendi-type issue before Apprendi was even decided and thanks to Debra Wilson's great KSC argument). That's why the legislature amended our upward durational departure scheme in 2002.

But there may be some remaining issues. [Thanks to Patrick Lewis, Michael McCullough, Carol Cline and the gang at the Olathe PD office for calling me about this.] Even within the existing "presumptive" grid-boxes, there are aggravated, mitigated, and "usual" sentences. And on the high-end, the difference can be several years in prison. The identical provisions in K.S.A. 21-4704(e)(1) and K.S.A. 21-4705(d)(1) cut both ways:

The sentencing court has discretion to sentence at any place within the sentencing guideline range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating circumstances insufficient to warrant a departure.
By mandating that the judge "shall select the center of the range in the usual case" would seem to imply that a judge can only exceed the center sentence if he or she finds facts that take the case outside of the "usual case." In that regard, it seems quite similar to Cunningham.

So think about citing Cunningham in any case where judge/prosecutor is thinking about an aggravated sentence within a box. Particularly when you are dealing with high severity levels/criminal history, you have little to lose and maybe a few years to gain.

Chuck Cavanee also had this idea (which I know has been litigated in other states):
Another angle is the concurrent/consecutive issue. The statute requires concurrent, but if judge makes certain findings at a preponderance level he/she can impose consecutive sentences. This seems to me to violate Cunningham as well. Make those objections so the issue can be raised in the appeal courts.

And the other major importance of Cunningham is just the fact that Apprendi lives and maybe is even stronger. We have been continuing to litigate remaining Apprendi issues surrounding hard-fifty cases and criminal history issues (see here and here). Maybe someday, the SCOTUS will finally resolve these important issues.

Bottom line--I expect that there will be more Apprendi litigation in Kansas, so keep making those objections. Any other creative Apprendi type issues being litigated out there in the real world?

Thursday, January 25, 2007

Former chief PD appointed district judge

Here is the governor's press release announcing the appointment of current magistrate judge Maritza Segarra to fill the district judge position in the Eighth Judicial District, covering Geary, Dickinson, Morris, and Marion Counties. See, a public defender can become a judge in Kansas!

Monday, January 22, 2007

Vacancy on COA

With Lee Johnson's elevation to the KSC, the COA will soon be filling a vacancy. Here is the clerk's announcement.

Saturday, January 20, 2007

Everybody crosses the line now and then

Nathan Webb and Washburn student intern William Drexler won in State v. Ross, No. 94,503 (Jan. 19, 2007), reversing a Harvey County drug conviction. The COA held that just crossing the white line on the side of the road does not by itself constitute a violation of K.S.A. 8-1522 and does not, therefore, provide a justification for a traffic stop:
Automobiles are not railway locomotives. They do not run on fixed rails. Obviously, K.S.A. 8-1522(a) does not prohibit a vehicle from changing lanes. A driver is permitted to exercise, rather is required to exercise, discretion in deciding when and whether to change lanes. We need not drive through a pothole in the road and damage our vehicle in the process when we may safely avoid it by changing lanes or moving partially onto the shoulder of the roadway. K.S.A. 8-1517 permits us to leave our regular lane of travel to pass a slower moving vehicle when we overtake it. A stalled automobile or a fallen tree limb in the roadway ahead does not require us to wait for its removal. We drive around it.
Here is a link to a post on FourthAmendment.com including this case. I've seen this issue in at least one other case, so I bet it is in some others.

[Update: the state filed a PR on February 20, 2007].

[Update: the KSC denied the PR and the mandate issued on June 22, 2007].

Thursday, January 18, 2007

Criminal history case

Michael Holland and Michael Holland II won in State v. Ruiz-Reyes, No. 95,056 (Kan. App. Jan. 12, 2007), reversing a Reno County enhanced repeat-offender sentence. The COA held that the plain language of the statute makes it clear that before the state can use a prior conviction to enhance severity level, the prior conviction must have occurred before commission of the instant offense. (This same argument has been rejected in re criminal history because the guidelines explicitly say you should use prior conviction regardless of the time of the commission of the prior conviction. Same in DUI cases, I think).

There may be other repeat-offender statutes to which this argument would apply.

[Update: the state filed a PR on February 9, 2007]

[Further update: the KSC granted the state's PR on May 8, 2007. The case will likely be argued in September or October].

[Further update: on February 1, 2008, the KSC agreed with the COA. Here is my blog entry on the KSC case.]

Tuesday, January 16, 2007

Happy Birthday . . . to my blog!

It's my blog's first birthday. One hundred seventy eight posts and, you know, when I look back at them, I actually think two or three of them were useful or insightful! (Mostly the ones that Paige wrote and that I then cribbed).

I guess I had hoped that there would be more commenting by defenders in Kansas, which hasn't happened much. I suppose there are other forums that are better and more private for that. But, in any case, it has been a useful exercise for me as I try to keep up to date on things around the state. And it is turning into a nice reference for me ("I know I blogged about a case similar to that . . . .")

If you have any general ideas/suggestions for this blog, don't hesitate to let me know. And keep me updated on verdicts, articles, gossip, or other items of interest to defenders around the state.

Thursday, January 11, 2007

Things I learned . . .

I just came back from the American Association of Law Schools Annual Meeting. In addition to many great sessions on law school related topics (i.e. law school rankings, academic freedom, strategies for publishing, etc.), there were several great substantive sessions. I thought I would relate a few that I thought might be interesting to readers of this site (all three of you!).

One session was on international human rights law and its potential use in cases in the United States. The panel was directed toward the use of many tools in many types of cases, not just criminal. But I think there could be useful nuggets in here for us. Sandra Babcock, now a law professor at Northwestern, was on the panel and I have heard her talk about Vienna Convention issues before (i.e. the right to consular notification for citizens from other countries upon arrest in the United States). In addition, she noted that they are currently doing work in the Interamerican Commission on Human Rights on juveniles who get LWOP. So, I guess the message for me was, am I even thinking about international law in my practice? If not, why not? I know there have been some recent SCOTUS cases that have made it somewhat more difficult to see a clear remedy, but even only if for persuasive authority these treaties could be useful. And maybe we could argue that even if not self-executing, Kansas statutes provide a remedy? In any case, I challenge you to at least read the International Covenant on Civil and Political Rights (accessible here) and think about it a little. Maybe your case can go to an international tribunal some day!

A second session involved mental health issues, especially in capital cases: a discussion of Clark v. Arizona, a 2006 SCOTUS case that the experts noted seriously muddied the law of evidence related to insanity/mens rea issues. This is not an area that I have looked at in depth, but my conclusion was that if you think you understand these issues, you're crazy (pun intended). I think the burden is pretty high on practitioners who have clients with mental health issues. Just because Kansas "abrogated" the insanity defense does not necessarily mean that evidence of insanity is inadmissible. And ironically, almost exactly while I was setting in this section, the SCOTUS granted cert on an issue (discussed briefly in the session) involving whether a state can execute an incompetent person (i.e. if a person doesn't understand why he/she is being executed, can the state execute?) See Panetti v. Quarterman, Docket No. 04-70045, cert granted Jan. 5, 2007 (here is the question presented).

Finally, I went to an interesting session on child testimony after Crawford. As I recently blogged about here, we just filed a cert petition on whether Maryland v. Craig (allowing denial of face-to-face confrontation if child would be traumatized) is still good law after Crawford. Most of the experts seemed to sort of assume that Maryland v. Craig would survive, but I never heard any reasoned basis for that conclusion. Maybe it just wasn't the topic for discussion. But I was more energized than ever!

Tuesday, January 09, 2007

Double jeopardy win in the Tenth Circuit

Steven Pressen of Norman, Oklahoma won affirmance of the federal district court's grant of a 2241 motion by the Tenth Circuit in Walck v. Edmonson, ending an Oklahoma state manslaughter prosecution on Double Jeopardy grounds. Here is Paige Nichols astute summary of the case:
It has long been clear in Kansas that "habeas corpus is an appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy." In re Berkowitz, 3 Kan. App. 2d 726 (730 (1979). Thus, if the trial court denies the defendant's pretrial double-jeopardy claim, it is appropriate to file an original habeas action in the Kansas appellate courts, which will stay the prosecution while the double-jeopardy issue is litigated. But what happens if the Kansas appellate courts also deny the claim? Last week, the Tenth Circuit held that once a defendant?s pretrial state remedies for a federal double-jeopardy claim are exhausted, he or she may seek relief in federal court under 28 U.S.C. 2241. In Walck, the Court emphasized that the standard of review in 2241 actions (unlike in 2254 postconviction actions) is de novo, and thus the state court's resolution of the legal question will be given no deference. On the merits of the case before it, the Court concluded that the mistrial declared in the defendant's first trial was not based on a manifest necessity, where the state had proceeded to trial in the face of a known risk that one of its witnesses would be temporarily unavailable, and the court did not sufficiently consider alternatives to a mistrial (such as admitting the witness's preliminary hearing testimony). The Court rejected the state's argument that the absence of prosecutorial or judicial misconduct was fatal to the defendant's claim, and concluded that a retrial would violate the defendant's double-jeopardy rights.

I'd never thought about trying an interlocutory-type 2241 motion in federal court before, but I guess I'd better start. Thanks, Paige.

Reno County PDs get aggressive on holding clients without charges

A Hutch News article reported on the PDs efforts to get the prosecutor to charge persons sitting in jail or have the court release them. It's sort of ludicrous to hear about people being held for months without charges--you would think that is a headline from some of the national security/Guantanamo debates, not run-of-the-mill charges in Hutchinson, Kansas. Is this very common in other counties?

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

Sunday, January 07, 2007

Justice Johnson

On Friday, the governor appointed COA Judge Lee Johnson to the KSC. Here is the governor's press release. I think he will make a great Justice, although it is a loss for the COA. I expect that the Clerk will be taking applications for Judge Johnson's spot in the near future.

Home again

I had a great time in DC and will blog more about the conference later. I had hoped to keep in better contact, but (literally within a half hour of my last entry) I dropped my laptop and busted the wireless card plugged into the back of it. So I was sans internet for the rest of the week (which isn't all bad).

On the last day, I had a couple of hours before I had to head off to the airport, so I took the Metro down to the National Archives. I had been there a couple of years ago, but had heard that it had opened a new permanent interactive exhibit. It is called "The Public Vaults." I HIGHLY recommend this exhibit if you have a couple of hours to spare (or more). It has a wide variety of topics. On the serious side, you can see the first couple of pages of Clarence Gideon's handwritten cert petition. (If you are asking "Who's Clarence Gideon?" I demand that you stop what you are doing, go buy a copy of Gideon's Trumpet, and read it immediately!) On the lighter side, there was a display of letters to presidents including one that read "Dear Mr. President, this morning my mother declared that my room was a disaster area. Could I apply for federal funds to help clean it up?"

BTW, the Archives also display original copies of the Declaration of Independence, the Constitution, and the Bill of Rights. I stopped and all of the Bill of Rights are still there, despite what the Administration would have us believe.

Wednesday, January 03, 2007

Slow news weeks

Well, the blog has been a little slow the last couple weeks. Partially because of the holidays and partially because there have not been many cases to report about. It's too bad--historically, we often got some good cases around the holidays from the Kansas courts. Anyway, I am in DC at an AALS conference this week, but I will be checking in to see if there is anything to report.