Friday, March 30, 2007

Stagg acquitted in Johnson County

Here is the Topeka Capital-Journal article reporting that Tom Bath of Bath & Edmonds won an acquittal from Judge Anderson in State v. Stagg, ending a Johnson County first degree murder prosecution that had ended twice with hung juries.

Wednesday, March 28, 2007

Heated arguments in Hutch

Here is a Hutch News article reporting on a heated discussion between the public defender and the prosecutor in court. Better be careful or the Reno County District Court is going to be a new Court TV series!

[Update: here is the next episode of "The PDs of Our Lives."]

[Further update: here is an article reporting that the prosecutor in these articles is leaving to work for a federal judge. I guess this is the end (or is it?)]

Judge reprimanded

The Wichita Eagle reported that District Judge Pilshaw was publicly reprimanded by the Commission on Judicial Qualifications for misconduct in a couple of criminal cases.

[Note: the link to the Wichita Eagle article has expired.]

Downward departure affirmed

Michelle Davis won in State v. Chapman, Appeal No. 95,687 (Kan. App. March 23, 2007)(unpublished), affirming Judge Miller's imposition of a downward dispositional departure in a agg indecent liberties case. Mr. Chapman was 19 when he engaged in intercourse with a 14-year old. Judge Miller said a departure was warranted because of the defendant's age and the victim's willingness to participate. The victim's mother had testified that the victim was at least partially at fault. The COA followed KSC precedent and held that "although consent was not a defense to the crime itself, the victim's participation was properly considered as a mitigating factor for departure" and affirmed.

[Update: the state did not file a PR and the mandate issued on April 26, 2007]

Tuesday, March 27, 2007

DOC lacks funding

Here is a post on The Real Costs of Prison blog relating a Wichita Eagle article reporting on the underfunding of drug treatment for Kansas parolees. My experience leads me to believe that this is simply a symptom of a wider lack of funding to help persons back into society. All sorts of pre- and post-parole programs have been cut in the last 10-15 years. I think most people at DOC (and in community corrections) want to help clients (and prevent future crimes), but are hamstrung by a lack of resources. Many legislators are glad to warehouse people, but is it really "tough on crime" to just make criminals more likely to reoffend than when they went into prison? Shouldn't we want our legislators to actually fund things that will reduce future crime?

Friday, March 23, 2007

Acquittal in Topeka

Here is the Topeka Capital-Journal article reporting that M. Kristine Savage and Chris Joseph of Joseph & Hollander won an acquittal in State v. Overstreet, ending a Shawnee County second-degree unintentional murder prosecution.

Former PD appointed District Judge in Osage County

Here is the governor's press release announcing that Eric Godderz, former public defender and most lately Osage County Attorney was appointed to be a new District Judge.

Wednesday, March 21, 2007

Summary affirmance

Julia Spainhour won summary affirmance of Judge Leuenberger's Shawnee County suppression order in State v. Penrod, Appeal No. 96,863 (Kan. App. Feb. 23, 2007). Here is Julia's statement of issue from her brief:
The trial court properly concluded that police officers did not hold a reasonable belief that Penrod posed a risk to their personal safety at the time they did a “pat-down” search for weapons during a traffic stop in which Penrod was a passenger detained on suspicion of a traffic offense. Since the pat-down search was unreasonable, the seizure of evidence during the search violated K.S.A. 22-2404(2) and the Fourth Amendment prohibition against unreasonable searches and seizures.
The COA apparently thought the record sufficiently supported this conclusion that it did not even write an opinion!

[Update: the state did not file a PR and the mandate issued on March 29, 2007]

It's not American Idol, but vote now!

You may remember (or may not) that I blogged (here) about an edition of "SuperLawyers" and lamented about how few public defenders/criminal defense attorney showed up on the list. I just got my postcard with instructions on how to vote for this year's list. So if you get that postcard, (I think lawyers practicing 5 years or more are supposed to get it) think about some great Kansas defenders that you have seen in action and get on line and vote. I know we are not supposed to be looking for accolades, but a little pat on the back never hurt anyone! (Shoot, I even voted for a prosecutor if you can believe that!)

If you did not get a postcard, (or misplaced/threw away your postcard), there is a link at to get an access code by e-mail. You just have to have been practicing five years or more.

Monday, March 19, 2007

Judge takes DOC recommendation

A Wichita Eagle article reported that DOC recommended a favorable modification of a pre-guidelines sentence, which Judge Wilbert followed. I wonder what made Mr. Smith stand out to DOC?

[Note: the like to the Wichita Eagle article has expired.]

Saturday, March 17, 2007

State's PR DIGged

The KSC dismissed as improvidently granted a state's petition for review preserving Mark Schoenhofer's win in State v. Flesher, No. 94,175 (Kan. App. May 19, 2006), where the COA reversed a Sedgwick County consumption of alcohol by a minor conviction. The case had to do with a police bust of a beer party:

Here, the officers detained all the party guests located in the basement, including those who were legally drinking, for up to an hour while they investigated each of them one by one. Such a blanket detention was not reasonable under the Fourth Amendment. At the time the officers detained Flesher, they did not have any specific and articulable facts that Flesher had committed or was about to commit a crime.

We are not unsympathetic to the logistical nightmare that can confront officers during an investigation such as this. Parties, semi-supervised and otherwise, populated by hoards of both young adults and teenagers, where alcohol is served and is in abundance, are not only a nuisance to the neighbors but a threat to public safety and the safety of the participants. However, we can envision a number of possible scenarios in which the authorities could identify underage drinkers and other lawbreakers without the use of a dragnet that sweeps up and detains all in its path. The Fourth Amendment requires such an exercise of restraint on the part of the State. The State's procedure here, for which it seeks our imprimatur, would justify, for example, the police entering a wedding reception and confining everyone from the minister and Aunt Ethel to the children running uncontrolled about the dance floor until the police could question and inspect individually each of the celebrants to determine if the report they received of underage drinking was true. If a wholesale roundup and detention of partygoers is justified to investigate underage drinking, could not the police in any of our college towns, upon a report of possible underage drinking, simply lock the doors to any given drinking establishment and detain all the patrons for hours as they process them one by one out the front door? To posit a more sedate setting, are we willing to extend our Saturday evening dinner at a local bistro by an extra hour or so because someone has reported to the local authorities that an underage patron was seen with a glass of wine? The requirement of individualized suspicion protects the citizenry from such overbearing intrusions by the State.

Judge Pierron wrote a dissent, which maybe prompted the initial grant of the petition for review. We also had one petition for review DIGged in a Fourth Amendment case. It's quite a let down to argue a case at the KSC and then not get a decision, but it happens every now and then. I'm not quite sure of the process that results in a DIG. In any case, this is a win for Mark's client.

Friday, March 16, 2007

Unanimity win

Bach T. Hang, M. Kristine Savage and Christopher M. Joseph, of Joseph & Hollander, won in State v. Buckner, No. 94,795 (Kan. App. March 16, 2007), reversing a Washington County attempted manufacture case. The COA agreed that failure to give a unanimity instruction was clear error:
We do not view Buckner's defense strategy as a "general denial" as characterized by the State, but rather as separate defenses to each occasion when he allegedly participated in the manufacture of methamphetamine. Depending on how each juror viewed the testimony of each witness, it was possible for there to be disagreement as to on which of the specified dates Buckner was involved in manufacturing activity. For example, if one or more but less than all jurors believed Kathy Rose as to July 11, they may have been inclined to find Buckner not guilty on that occasion but guilty on another occasion; whereas one or more but less than all jurors may have believed all other witnesses, but doubted the credibility of Kathy Rose, thus being inclined to find Buckner guilty of the charges on July 11 but not guilty on the other occasions. If this or a similar scenario occurred, Buckner was convicted by less than a unanimous jury and this is precisely the problem that the unanimity instruction is designed to prevent. We conclude that this was a classic multiple acts case and that the separate defenses to each of the acts required that the unanimity instruction be given in order to assure a unanimous jury.

I haven't seen a unanimity case for a while. It was a big issue a few years back, but has sort of been on the back burners.

[Update: the state did not file a PR and the mandate issued on April 19, 2007]

Sometimes it's what they don't say

Charles O'Hara won in State v. Landis, No. 95,466 (March 16, 2007), reversing a McPherson County possession with intent to sell within 1000' of a school conviction. The COA held that the affidavit, based on accomplice hearsay, was insufficient. The fact that the police deliberately omitted material facts didn't help the state's cause:
We determine that the affidavit, which was based solely on hearsay statements from a person who was a participant in the crime under investigation, failed to establish probable cause to search Landis' residence. Moreover, consideration of the information deliberately omitted from the affidavit further magnifies the lack of probable cause in the affidavit. Because there was not probable cause to issue the search warrant, the evidence obtained from the search of Landis' residence should have been suppressed.
I think this is a good case, at least giving some credence to the fact that cops should not intentionally omit material facts from search warrant affidavits.

[Update: the state filed a PR on April 16, 2007.]

[Further update: the KSC denied the PR and the mandate issue on October 1, 2007.]

Apprendi win

Matt Edge and Cory Riddle won in State v. Allen, No. 93,940 (Kan. March 16, 2007), reversing a persistent sex offender enhanced sentence. The issue had to do with whether a sentencing court could make a finding regarding whether a prior crime was sexually motivated, making it a predicate to application of the persistent sex offender statute. The KSC held that because the alleged prior conviction was not listed as a statutory predicate offense, the judge would have to make the factual finding regarding the prior intent and that violates Apprendi. As a result, the KSC remanded for resentencing (although the prior will now be included in criminal history, so it is not likely to make a huge difference for the client--but every day counts!)

Here is my blog entry on the COA decision, which also reversed, albeit in a split decision.

Tuesday, March 13, 2007

Former LSP attorney appointed Reno magistrate

The Hutch News reported that Randy McEwen was appointed to fill the District Magistrate Judge vacancy in Reno County. Here is the governor's press release announcing the same.

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

Friday, March 09, 2007

Fighting for prosecutor's rights

Janine Cox won in State v. Lampson, Appeal No. 96,155 (Kan. App. March 9, 2007)(unpublished), affirming Judge Innes' dismissal of felony misuse of public funds charges against the former Chautauqua County Attorney. Mr. Lampson had written some checks on the county attorney's trust fund that was to be used in the normal course of county attorney business. Mr. Lampson wrote some checks from the trust fund for computer work done in his private office, which spurred a KBI investigation and eventual felony charges. The issues was whether the computer work done was in the course of county attorney business. The district court dismissed the charges after preliminary hearing.

The COA read K.S.A. 21-3910, which prohibits use of public money "in a manner not authorized by law" to mean acts that have been expressly prohibited by statute or judicial interpretation. The COA noted that the Chautauqua County resolution allowed the county attorney to pay "operating expenses" and submit those expenses to the county commission, which can reject them. The COA held that this resolution anticipated circumstances where the county attorney would have spent money from the account that would later be rejected; but that did not make such spending expressly prohibited. As a result, the COA affirmed dismissal of charges.

[Update: the state did not file a PR and the mandate issued on April 12, 2007]

Guess the district judge

Carl Folsom won in State v. Owens, Appeal No. 95,491 (Kan. App. March 9, 2007)(unpublished), reversing a Sedgwick County aggravated robbery conviction. The state charged Mr. Owens with aggravated robbery. Kurt Kerns worked out a plea agreement for robbery with a recommendation for low number in the box. Just before bench trial, Kurt announced that the plea agreement had been reached:
MR. KERNS: Judge, we have a plea agreement, we're good to go, if we're at that point.
THE COURT: No. We're starting trial. It's 10:20.
MR. KERNS: Okay.
The district judge convicted Mr. Owens of aggravated robbery.

Acknowledging that a defendant does not have an absolute right to plead guilty, the COA agreed that the district judge (who shall remain nameless) abused his discretion by refusing to accept the plea without articulating "any reason, good or otherwise, for rejecting the defedant's request to plead nolo contendere." As a result, the conviction is reversed and remanded for further proceedings.

[Update: the state did not file a PR and the mandate issued on April 12, 2007]

I didn't give up all my rights just to be on parole

Kurt Kerns won in United States v. Freeman, reversing a federal firearm conviction based on an improper search. The issue stemmed from a KDOC policy regarding searches of parolees:
We interpret the [Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)] line of cases, based on "special need," as resting on the rehabilitative relationship between the parolee and the parole officer, and thus not extending to other law enforcement officers unless they are acting under the direction of the parole officer. We interpret the [United States v. Knights, 534 U.S. 112(2001) - Samson v. California, 126 S. Ct. 2193 (2006)] line of cases as resting on the parolee's diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case. As we shall see, neither rationale justifies the search in this case.

The Tenth Circuit held that the KDOC policy did not authorize search by any law enforcement officer (it only dealt with searches by parole officers) distinguishing this case from Samson, which involved a blanket agreement to allow searches by anyone. And the Tenth Circuit held that there was not reasonable suspicion of a parole violation. So the search was illegal.

This case is a nice treatise on parolee searches. I suspect KDOC would want to change its policy in reaction to this, but I wonder if there could be any liability issues stemming from a broad policy that would temper that reaction (i.e. some local Barney Fife engages in excessive force during a search authorized by a blanket KDOC policy--could that subject KDOC to liability?).

Here is coverage of the case.

Monday, March 05, 2007

Suppression in Third

Jennifer Roth won a motion to suppress in State v. McCoy, ending a Shawnee County drug prosecution (126 lbs of marijuana). Judge Parrish granted Jennifer's motion, which she indicated dealt with facts quite similar to those in State v. Ross, blogged about here. Jason Hoffman represented a co-defendant in State v. Kyser, who also won suppression.

I think there must be a lot of these cases in Shawnee County. A little bird let me know that Scott Gesner won a suppression motion in December in State v. Carathers, ending another Shawnee County methamphetamine prosecution based on an improper extension of a proper traffic stop.

Be sure to let me know about these district court happenings. First, it is nice to show the world what a great job defenders are doing around the state. Second, we are arging a lot of Fourth Amendment cases right now and it is useful to me to have a better sense of what is happening around the state in cases I don't otherwise see. So just e-mail me when you get a good result!

Sunday, March 04, 2007

It's misconduct in Missouri, too.

Just another in my posts to defend the KSC, who was much maligned when it reversed a few cases based on prosecutorial misconduct. In State v. Banks, the Missouri Supreme Court reversed a first-degree murder conviction after the prosecutor argued that "we have to go and catch the Devil, there are no angels as witnesses. This is Hell. He is the Devil. They weren't angels. He is guilty beyond a reasonable doubt." The Missouri Supreme Court aptly described the situation:

Although every witness, party, opposing counsel, and other participant in a trial is a victim and injured by such conduct, the ultimate victim is our system of justice itself. Respect for the rule of law and our system of administering it depend upon public trust and confidence, whether it is in civil or criminal cases. Historically fundamental to that system has been the concept that individuals and corporations are tried (civilly or criminally) for their acts and not for simply who they are (or are alleged to be). It is tragic that the common observation of laymen is that it is just lawyers being lawyers.

Although courts cannot provide the sole solution, when one asks what courts have done to stem this behavior, the answer too often is "precious little." Judges and lawyers and sometimes both decry this behavior and urge some answer. Judges criticize lawyers for their behavior. Lawyers criticize judges for tolerating it or for not taking firm actions to stop it. Appellate courts frequently play their role as well by finding no abuse of discretion or no prejudice, or by describing as a tactical decision defense counsel's failure to object, without admitting that counsel may not be willing to object where there is little chance of it being sustained or of any meaningful relief being granted on appeal. All who participate in the trial of a case are reminded, just as the prosecutor is reminded by the comment to Rule 4-3.8, that juries are to decide cases on the evidence presented - not appeals to unreasoned emotion or name-calling.

I guess my only comment is, for all of the criticism the KSC gets from prosecutors for its prosecutorial misconduct jurisprudence, it has seemed to make little difference in practice. Even when misconduct is found, the appellate courts only reverse 1 in 20 cases, and even then the prosecutor gets a second bite at the apple even when reversed, it seems to provide little deterrence. It seems like many (most?) prosecutors are willing to roll those dice. Sometimes I feel like the appellate courts think they are shaming prosecutors when they yell at them in oral argument about how egregious the misconduct was, but don't see that many (most?) prosecutors care so long as the conviction is not reversed. Many of the worst violators seem to get a laugh out of it when the appellate courts hammer them in oral argument and I suspect it's because they know the appellate courts are unlikely to reverse.

I think to really do more than the "precious little" described by the Missouri Supreme Court, appellate courts would have to really reverse a higher proportion of cases where misconduct is found and/or make the reversals with prejudice. That would probably be more of a deterrent.

Friday, March 02, 2007

No implied consent

Shawn Minihan won in State v. Poulton, No. 95,353 (March 2, 2007), reversing some Reno County drug convictions. The district court had held that a DOC officer had implied consent from a homeowner to go into the residence to arrest a parolee. The COA disagreed:
Consent by implication, however, is contrary to established law. Our Supreme Court has furnished clear guidance concerning voluntary consent. The consent must be "'unequivocal and specific'" and "'freely and intelligently' given." See Ninci, 262 Kan. at 32. In order to determine that Poulton had voluntarily consented to the officer's entry into his home, the trial court needed to find that Poulton's consent was unequivocal and freely given. The fact that Poulton acquiesced or impliedly consented in the officers' entry does not meet the standard for voluntary consent. Moreover, the State does not discharge its burden to prove voluntary consent to justify the lawfulness of a search "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968).

The COA went on to rule in the alternative that, if there was implied consent, the officer exceeded the scope of that consent:
The scope of a warrantless search based on consent is controlled by the suspect. Florida v. Jimeno, 500 U.S. 248, 252, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). Poulton's consent was conditional in light of the fact that he specifically told the officers that he would get Lamuz for them. Poulton telling the officers that he would get Lamuz for them and walking toward the area of the house where Lamuz was located placed a limitation on the scope of the search to which he consented. Mora clearly exceeded the scope of Poulton's consent when he physically restrained Poulton by grabbing his arm and telling him that he would get Lamuz and then proceeded through the house.

Finally, the COA noted that the KSC has held that residences are deserving of special protection:
In considering the high expectation of privacy in a person's home, the Reno court stated that it would apply "a heightened standard for reasonableness when entry into a suspect's residence is involved." [State v. Reno, 260 Kan. 117, 128, 918 P.2d 1235 (1996)]. Here, Poulton neither was a suspect nor was he under arrest when the officers entered his home. Absent these facts, consent, and exigent circumstances, the officers' entry into Poulton's home failed to meet the heightened standard of reasonableness test to justify their warrantless search of Poulton's home and bedroom.

As a result, the search violated the Fourth Amendment and the fruits of that search must be suppressed. Because the COA procedurally defaulted claims stemming from another search, it is unclear whether the decision will actually help Mr. Poulton. But there is certainly a lot of good Fourth Amendment law in the case.

[Update: the state did not file a PR, but Mr. Poulton did file a PR from that part of the case he lost on March 30, 2007, so the case is not final.]

[Further update: the KSC granted Mr. Poulton's PR on September 27, 2007. This case will likely be argued spring 2008.]

[Further update: the KSC ruled in Mr. Poulton's favor on April 4, 2008. Here is my blog entry reporting that case.]

Thursday, March 01, 2007

Lesser verdict in Chetopa murder case

Timothy Grillot won a lesser verdict of second-degree in retrial of a Labette County first-degree murder prosecution. Here is the Parsons Sun article reporting on the case.

[Update: here is the Parsons Sun article reporting on the sentencing.]