Wednesday, December 31, 2008

Must confirm jury verdict in open court

Washburn student intern David Becker and I won in State v. Johnson, No. 99,102 (Kan. App. Dec. 31, 2008) reversing and remanding a Cheyenne County DUI conviction for a new trial due to failure confirm the jury's verdict in open court. The circumstances are probably pretty rare, but all lined up to cause the COA to question whether there was a unanimous verdict in the case. And where the district court failed to comply with K.S.A. 22-3421 to confirm the jury's verdict in open court, the COA reversed:
The statutory mandate under K.S.A. 22-3421 and K.S.A. 60-248(g) requiring the trial court to ask the jury in open court whether the verdict is their verdict is a safeguard to prevent error or misunderstanding. Because K.S.A. 22-3421 gives a juror a chance to express a last minute dissent, it cannot be said that Johnson was not prejudiced by the trial court's failure to inquire into whether the jury had agreed with the published verdict. As a result, the trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict amounted to reversible error in this case.
The COA provides a nice historical discussion of verdict procedures in this case. Although some of these procedures may seem pretty antiquated or formalistic, they have a purpose. It gives the juror a last chance to express disagreement. After argument in this case, Cal Williams noted a case from his past where when the judge asked the jury "Is this your verdict?" one juror broke down and disagreed. Maybe some readers have other examples. Although rare, it can happen.

On a related note, we had also claimed that the district court should have polled the jury unless it had obtained an affirmative waiver from the parties (which it did not in this case--it just never asked). The COA ruled that failure of the party to affirmatively ask for polling constituted waiver, even where district court never gave the option to counsel.

So my question is, why would either party affirmatively (or implicitly) waive jury polling? It seems to happen in more than half of the cases that cross my desk. If the defendant is convicted, what do you have to lose? Even if it's a one-in-ten-thousand shot, I don't see how it can hurt and it really doesn't take that long. Any ideas?

[Update: the state did not file a PR and the mandate issued on February 3, 2009.]

Ninth Circuit holds 28-year failure to register sentence disproportionate

I don't regularly blog about other rulings from other jurisdictions, but did want to note this blog entry highlighted on Sentencing Law and Policy here. The Ninth Circuit held that a 28-year sentence for failure to register was grossly disporportionate.

I just note this because we are seeing more and more of these type of cases in Kansas and expect to see a lot more with the huge increase of comparatively minor offenses (i.e. possession of drugs with intent) that now require offender reporting. Because failure to report is now SL5, we are likely to see sentences for failure to report that far exceed the original sentence. If you are in that situation, remember to raise a proportionality objection, both under the federal and state constitutions.

Wednesday, December 24, 2008

Charges dismissed

Here is an Olathe News article reporting that prosecutors dropped charges without prejudice in State v. Hudson, a Johnson County assault and battery on a LEO prosecuction. The article notes that the state will be trying Ms. Hudson for the third time for a separate allegation of assault on a LEO.

Bush pardons another Kansan

Here is an Emporia Gazette article reporting that President Bush pardoned a Lyon County man for a 43-year old federal conviction for forging an endorcement on a treasury check.

The pardon, along with other granted that day were noted here at Pardon Power, a great blog for anyone who is interested in issues and news about state and federal pardons and commutations.

As far as I know Bush pardoned one other Kansan earlier this year, blogged about here.

Tuesday, December 23, 2008

New Wichita PD perseveres

Here is a nice article from the Wichita Eagle sharing the story of Latina Alston, a new PD in Sedgwick County. After reading her story, it seems very fitting that Latina has chosen to help the less fortunate by becoming a public defender.

Monday, December 22, 2008

Ineffective assistance in capital trial?

Here is a Topeka Capital-Journal article reporting some details of the remand hearing granted by the KSC in State v. Cheatham, a Shawnee County capital appeal. I'll leave the conclusions for you the reader to draw.

Friday, December 19, 2008

No corroborating evidence

Meryl Carver-Allmond notched her first ADO win in State v. Cibrian, No. 99,812 (Dec. 19, 2008)(unpublished), reversing a Saline County possession conviction on Fourth Amendment grounds. The issue involved whether the arrest was illegal:
in the present case, little evidence was presented concerning [informant's] and his girlfriends' veracity and reliability, as they clearly had motivation to place blame on others. [Informant] was an admitted participant in the crime of trying to sell the stolen goods. . . . Here, as in [State v. Hendricks, 31 Kan. App. 2d 138, 61 P.3d 722 (2003) and State v. Landis, 37 Kan. App. 2d 409, 156 P.3d 675 (2007)], the officers did not have enough information concerning the veracity or credibility of [informant] and his girlfriend--or corroborating evidence--to form a reasonable belief that Cibrian had committed the crimes of possession fo stolen property or burglary. Without probable cause to support the arrest, the search incident to the arrest was unlawful.

[Update: the state did not file a PR and the mandate issued on January 22, 2009.]

Wednesday, December 17, 2008

Dismissal in JoCo Sodomy prosecution

John DeMarco won a dismissal in State v. Wheeler, a Johnson County sodomy prosecution. The case involved an alleged sex act between a nurse's aide (Wheeler) and a patient at a rehabilitation center. The State agreed to dismiss the case after the State's doctor changed his opinion on the alleged victim's capacity to consent. Johnson County DA Kline said, “The only issue is, does she have the capacity, and the state’s doctor says she does under the law — there’s not much you can do with that." Here is coverage of the dismissal by the KC Star.

You can't be the offender and the victim in the same case

Paul Shipp over at Inre LM, noted that he recently won in In re E.R., No. 100,197 (Dec. 12, 2008), reversing a Finney County juvenile adjudication for a violation of Romeo and Juliet law. Here is Paul's succinct summary:
The Kansas Court of Appeals has ruled that Juvenile's cannot be dually charged with a violation of the State's Romeo & Juliette law.
In other words if you have two underage kids fooling around together, you can't charge them both with sex (or whatever improper intimate contact) with another person who is under age.

Here is a link to the entire blog entry, including links to the briefs in the case. And as Paul notes, if you have former clients with these types of convictions, or if you have clients who have such types of convictions in criminal history, think about a collateral attack. There is a pretty good argument that this type of ruling would apply retroactively.

[Update: the state did not file a PR and the mandate issued on January 15, 2009.]

Monday, December 15, 2008

Eleventh hour dismissal

Here is an Emporia Gazette article reporting that the state dismissed attempted intentional second-degree murder charges in State v. Swafford, a Lyon County prosecution. Another newspaper article noted that the prosecutor indicated that it was likely that Mr. Swafford would be charged with agg battery in the near future.

[Update: here is an Emporia Gazette article reporting that, as he promised, the Lyon County Attorney filed new severity level 4 agg battery charges in the case.]

Friday, December 12, 2008

When the defendant objects to criminal history, prior PSI no longer sufficient proof

Reid Nelson won in State v. Schow, No. 96,820 (Kan. Dec. 12, 2008), reversing Mr. Schow's sentence and remanding for to the district court for resentencing and reconsideration of his motion to withdraw plea. In reversing the sentence, the KSC held that it was improper for the sentencing court to place the burden on the defense to disprove alleged prior convictions that were listed in a prior, unobjected-to PSI:
[W]e find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, the district court erred in shifting the burden to the defendant to disprove the existence of the disputed prior convictions. The sentence is vacated, and the matter remanded to the district court for a proper determination of criminal history and resentencing, if necessary.
Thus, when a defendant objects to the existence of criminal history, the State can no longer rely on a prior, unobjected-to PSI as sufficient existence of a prior conviction. The State has to provide the certified journal entry of conviction.

The KSC also reversed the district court's denial of Schow's motion to withdraw plea. The KSC reiterated that a claim of innocence is not required in a pre-sentencing motion to withdraw plea, and held that a district court may consider a mutual mistake in criminal history in determining whether there is good cause to withdraw a plea. The KSC concluded:
[A] defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.

Overall, this case helps assure that defendants are sentenced according to an accurate criminal history score and that plea agreements are actually knowing and voluntary.

New judges in Northeast Kansas

Sally Davis Pokorny of Lawrence has been appointed by the governor to be a district court judge in Douglas County. She will fill the vacancy created by the retirement of Judge Jack Murphy, who is leaving Jan. 12. Here is coverage of the selection by the LJ World. Here is the governor's press release announcing the appointment.

And the governor appointed Dan Wiley district judge in the First District covering Leavenworth and Atchison Counties, filling the vacancy created by the retirement of Judge Frederick Stewert. Here is the governor's press release announcing the appointment.

Here is coverage of both appointments in the Topeka Capital-Journal.

Thursday, December 11, 2008

Human rights, right here.

Yesterday was the 60th Anniversary of the passage of the Universal Declaration of Human Rights. Here is a link to a site reporting on the anniversary, and here is a link to the UN web site including the text of the Declaration. For those who don't know (like me before yesterday), the UDHR was created by the international community in response to the atrocities committed during World War II.

But you may be asking "Well, that's great, but this is the Kansas Defenders blog, right? I thought the Kansas Defenders blog covered more local issues, not issues about international human rights?" Well, take a look at an excerpts of several of the articles of the UDHR:

Article 3
Everyone has the right to life, liberty and security of person.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Does any of this sound familiar to you, Kansas Defenders? It's what you do every day, in state and federal courts, in trials and appeals, from Atchison to Liberal. Although the public may tend to think of "human rights issues" as an international problem issue in other countries, protection of the fundamantal rights as described in the UDHR takes place right here in River City.

Thanks for your daily efforts to secure the "foundation of freedom, justice and peace in the world." (UHDR, Preamble)

Wednesday, December 10, 2008

Fifth Amendment challenge to rebuttable presumption for adult prosecution

The Nevada Supreme Court held in In re William M, that is system of presumptive adult prosecution for certain age children accused of certain crimes, violates the Fifth Amendment. I think the case may be distinguishable from Kansas in some respects, because the Nevada scheme sets up a certain requirement for rebuttal that would include requiring the juvenile to admit guilt (thus violation the Self-Incrimination Clause). But while K.S.A. 38-1636(a) and (e) are a little more vague as to the grounds for rebuttal, they may include "the seriousness of the alleged offense" and "whether the alleged offense was committed in an aggressive or willful manner," etc. I could see litigation of these claims implicating the same types on incrimination as that described in the Nevada case.

Anyway, it was an approach to attacking certification I hadn't thought of before!

Tuesday, December 09, 2008

Sedgwick County PD stops taking new cases for now

Here is a Wichita Eagle article reporting that the Sedgwick County PD's office will stop taking cases for a few weeks because of caseload issues. The article indicates that cases will start being assigned to private attorneys, who will be reimbursed by the state. Unfortunately, this seems to be a trend we see highlighted around the country.

Lesser in juvenile case

Marc Schultz won in In re A.W., a Shawnee County juvenile robbery prosecution. The jury took less than an hour to come back with a lesser verdict for misdemeanor theft. I guess jury trials can work in juvnile cases!

Friday, December 05, 2008

Prior drug use is not automatically admissible in possession case

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. Dec. 5, 2008), getting a new trial in a McPherson County drug prosecution. Here is our previous blog entry on this case. The KSC agrees with the COA that evidence of prior drug use was not relevant to his possession case. The KSC applied its recent prior bad acts evidence case law and held that the evidence was not admissible in this case:

The State argues that Boggs' prior use of marijuana was relevant in this case to prove the intent element in both charges because intent is always a material fact in possession cases. In particular, the State asserts that this court has long permitted evidence of prior drug use to be admitted in cases involving possession of drugs or drug paraphernalia to prove the defendant's intent to use drugs, the defendant's knowledge that the particular substance possessed consisted of drugs or was drug-related, or to prove an absence of mistake or accident in possessing the contraband material.

The State correctly points out that this court has previously held that evidence of prior crimes or civil wrongs may be admissible under K.S.A. 60-455 to prove intent, knowledge, or absence of mistake or accident in cases involving possession of drugs or drug paraphernalia. The State fails to recognize, however, that in all cases where this court has held such evidence to be admissible on these bases, the question of the defendant's intent, knowledge, or claim of mistake or accident was a disputed material fact in issue.

. . . .

We agree and find the reasoning of the Court of Appeals sound. The issues of intent, knowledge, or absence of mistake or accident were not material to the resolution of Boggs' case, as the only issue in dispute was whether Boggs ever possessed the pipe and its contents at all.

. . . .

The instruction provided in this case states that in a nonexclusive possession case, factors including other crimes or civil wrongs of the defendant may be admitted to establish the defendant "knowingly possessed the controlled substance" charged in the information or complaint. In the past, factors such as a defendant's prior drug use or participation in the sale of drugs--evidence of other crimes or civil wrongs that fall squarely within the realm of K.S.A. 60-455--have been admitted both under the guise of that statute or independent from the statutory mandates. The ambivalence existing in this area of law is exemplified by the trial court's admission of the defendant's prior drug use without employing the safeguards of K.S.A. 60-455, yet giving a limiting instruction. Gunby abolished this ambiguity, making it clear that before any evidence of a defendant's other crimes or civil wrongs can be admitted, the court must apply the K.S.A. 60-455 safeguards.

Finally, we observe that although PIK Crim. 3d 67.13-D, which was applied in a modified form in this case, states that a jury may consider a defendant's use of a controlled substance as one of the factors in a nonexclusive possession case, the pattern instruction fails to adequately summarize the nuances of this court's case law relating to K.S.A. 60-455 evidence. Our decision in Gunby specifically bars the admission of any evidence of other crimes or civil wrongs independent of K.S.A. 60-455 or some other statutory basis. While a defendant's use of a controlled substance may be admitted--subject to the requirements of K.S.A. 60-455--when such evidence is relevant to prove a disputed material fact, the defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved. To the extent that past appellate cases in this state suggest otherwise, they are also disapproved.

This is a pretty big case--the PIK instruction is given in almost all nonexclusive possession cases. So be ready to cite this case at the district court (and let your appellate attorney know if this issue is floating around in a case on appeal!)

[Update: this case was voted 2008 ADO case of the year!]

You don't have to acquit to consider a lesser

Lydia Krebs won today in State v. Espinales, No. 98,193 (Kan. App. Dec. 5, 2008)(unpublished), getting a new trial in a Douglas County murder prosecution. Mr. Espinales was originally charged with first-degree murder and district court gave lesser-included offense instructions for second-degree murder and voluntary manslaughter. Jury convicted of second-degree murder. The problem stemmed from an instruction that read "If you find the defendant is not guilty of the crime of murder int he first degree or second degree, you should consider if he is guilty of the crime of voluntary manslaughter." The COA applied KSC precedent to note that the instruction, as given, would prevent a jury from really considering voluntary manslaughter:
"[The jury] may never have fully analyzed whether the shooting was the product of . . . a sudden quarrel." That is problematic because a sudden quarrel is one factor that distinguishes manslaughter from murder, and the jury should deliberate both murder and manslaughter simultaneously when the evidence could support either.
The COA went on to hold that the error in this case case clear error and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on January 8, 2009.]

State has to prove obstruction as charged

Matthew J. Edge won in State v. Ochoa, No. 98,922 (Kan. App. Dec. 5, 2008)(unpublished), reversing a Wyandotte County obstruction conviction. The state charged Mr. Ochoa with obstructing Officer Bussell with relation to arrest on a automobile burglary. But the alleged obstruction was Mr. Ochoa giving a fake name to Officer Landis on the scene. The COA held that the complaint only charged obstruction of Bussell and he was not even present at the time of the alleged obstruction:
the false identification given to Officer Landis cannot be considered to be an act obstructing or opposing Officer Bussell's duties. . . . It is not enough for the State to prove that Officer Bussell was affected by Ochoa's false statement; the State must show Ochoa's false statement hindered Officer Bussell in carrying out some official duty, and there is no evidence to support that assertion.
As a result, the conviction is reversed.

[Update: the state did not file a PR and the mandate issued on January 8, 2009.]

Thursday, December 04, 2008

Acquittal in less than an hour

Here is a Hutchinson News article reporting that Janis Knox won an acquittal in State v. Schutte, ending a Reno County child abuse prosecution.

January 2009 KSC docket

Here are the criminal cases on the KSC docket for January 26-28, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

January 26-Monday-a.m.

State v. Sarah Fischer, No. 100,334 (Sedgwick)
Sentencing appeal (transfer)
Patrick H. Dunn
[Affirmed; Johnson; March 27, 2009]

  1. Use of juvenile adjudications in criminal history
State v. Leonard Foster, No. 98,014 (Sedgwick)
Motion to correct illegal sentence
Carl F.A. Maughan
[Affirmed; per curiam; Feb. 13, 2009]

  1. Right to be present at hearing
  2. Multiplicity
State v. Alfred Jones, No. 99,978 (Sedgwick)
Motion to correct illegal sentence
Carl F.A. Maughan
[Dismissed as interlocutory; Jan. 20, 2009]

  1. Improper summary denial of motion

January 26-Monday-p.m.

State v. Albert Richmond, 100,074 (Crawford)
Direct appeal; First degree murder
Christina M. Waugh
[Affirmed; Nuss; July 24, 2009]

  1. Improper state of mind evidence
  2. Improper admission of prior crimes if defendant took stand
  3. Improper prior bad act evidence
  4. Prosecutorial misconduct

January 27-Tuesday-a.m.

State v. Gabriel Martinez, No. 99,641 (Wyandotte)
Direct appeal; First degree murder
Reid T. Nelson
[Affirmed; Rosen; March 27, 2009]

  1. Jury misconduct/incompetence
  2. Ex parte communication between judge and juror
  3. Sentencing error
State v. Benjamin Appleby, No. 98,017 (Johnson)
Direct appeal; Capital murder
Debra Wilson
[Aff'd/Rvd; Luckert; November 20, 2009]
  1. Multiplicity of capital murder and attempted rape
  2. Denial of suppression of statements
  3. Improper admission of computer-generated report without confrontation
  4. Improper expanded instruction on premeditation
  5. Improper use of mitigating evidence as a non-statutory aggravator

Look for the expiration date

We had a couple of probation violation appeals in the last couple of weeks that I thought might be worth mentioning.

Patrick H. Dunn won in State v. Snapp-Woods, No. 98,765 (Kan. App. Nov. 21, 2008)(unpublished); the COA reversed and remanded for discharge because a "Consent and Order to Extend Probation" was filed two days after expiration of the probation term. Christina M. Waugh won in State v. Baca, No. 99,124 (Kan. App. Nov. 28, 2008)(unpublished); the COA similarly reversed because an agreed-upon extension had not been completed until after a reinstated term of probation had expired. Even though Mr. Baca had agreed to the extension, the COA held the district court lacked subject matter jurisdiction.

The lesson? Pay attention--whether at the district court or on appeal. Look through the file carefully at prior extensions. It's not enough to have filed an extension within the 30 days after a probation period ended.

[Updates: the state did not file a PR in either case. The mandate issued in Baca on December 31, 2008; the mandate issued in Snapp-Woods on January 5, 2009.]

Saturday, November 29, 2008

Nice article on public defender pay discrepancies

Here is a Wichita Eagle article reporting on pay discrepancies between Sedgwick County prosecutors and public defenders, and some of the implications of that salary gap. I think the discrepancies are even bigger in Johnson County (and are probably less in some other districts, although I would guess that prosecutors get paid more than public defenders in every county that has a district attorney).

I'm glad the article points out some of the non-salary discrepancies as well. By statute, prosecutors get a slice of every court cost that ends up getting paid by defendants for a "training fund." Public defenders get squat. My office has frequently taken other state agencies' throw-away furniture because it's better quality than what we have.

As a matter of constitutional law and legal ethics, quality representation for the poor is not negotiable. If the state doesn't want to pay for indigent defense, it needs to prosecute fewer people (or at least fewer poor people).

The story was noted on Public Defender Stuff here and on Arbitrary and Capricious here. And very flattering comments at Capital Defense Weekly here. Wow, these are, like, all the big names in public defense blogging! Thanks!

My trash isn't public!

Roger Falk won in State v. Hoffman, No. 99,755 (Kan. App. Nov. 26, 2008), affirming Judge Frederick's suppression order in a Greeley County drug prosecution. The COA majority decided the case turned on whether the owner retained a sufficient expectation of privacy in some trash. Law law enforcement engaged in "trash pulls," where a deputy actually travelled on a trash truck picking up garbage from a suspect's home in a rural area:
Courts in some other jurisdictions have concluded that a person never has a reasonable expectation of privacy in trash left out for collection by a third party. These courts have gone well beyond the holding and rationale of [California v. Greenwood, 486 U.S. 35 (1988)], which emphasized the importance of public accessibility to the trash left out for collection. Given the importance of public accessibility to the rationale of both Greenwood and [State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007)], we believe that those cases provide the most helpful guidance in reaching the correct result in Hoffman's case. His trash was in no way accessible to the public. Given his rural setting, we conclude that the mere fact that he allowed a third party to haul his trash away did not eliminate his reasonable expectation of privacy in that trash. The district court properly held that the trash pulls at Hoffman's dumpster violated the Fourth Amendment, and that violation requires that the evidence be suppressed because it was obtained by a warrant based on the illegal trash pulls.
It's an interesting question. I bet if a person went through somebody's trash and pulled out financial information and used it fraudulently, the state wouldn't (and shouldn't) hesistate to prosecute that person. No one would say that the person who put that financial information had authorized the use of that information.

Additional kudos to Cal Williams, who won this motion at the district court!

[Update: the AG entered his appearance and filed a PR on December 18, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on April 10, 2009.]

Friday, November 28, 2008

Is the Intoxilyzer 5000 racist?

Connecticut DUI lawyer James O. Ruane claims that the Intoxilyzer 5000 is racially biased. In a recent case, Ruane filed a motion to suppress the results of the Intoxilyzer. He stated:

the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men’s test results vary from the sobriety standard set by the device.

According to Ruane, Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and, based on his studies, has determined the Intoxilyzer 5000 does not effectively test the blood-alcohol content of black men.

Ruane also stated:

When you combine the biases of the machine for the racial factor, the lung capacity, the conversion from a breath sample to a blood reading, and take into account a person’s natural partition ratio, you can see a possible breath test reading of a person at 0.08 that may actually be as low as .03.

That is a significant overstatement in the results. As you get further away from the standard, the overstatement grows larger in number. The machine treats every person the same, and that may cause it to discriminate against certain segments of the population. In this case, the purported results as mentioned in the article do not match the physical evidence. This was why we started looking for other explanations.

Of course, the problems with these machines have been well documented. This is just another possible example. Thanks to apublicdefender for the tip.

Tuesday, November 25, 2008

You can't attempt to solicit

James Pratt won in State v. Rexroat, No. 99,432 (Kan. App. Nov. 21, 2008)(unpublished), affirming Judge Frederick's dismissal of a Finney County attempted indecent solicitation prosecution. Lucille Douglass was the defense attorney at the district court level. On appeal, the state conceded that, if indecent solicitation is an inchoate crime, attempted indecent solicitation would impermissibly stack inchoate offenses. The COA reviewed the statutory scheme:
The State fails to show why K.S.A. 21-3110's definition of solicitation "clearly requires a different meaning" when applied to indecent solicitation of a child. We see no basis upon which to conclude that the legislature, through its clearly expressed statutory language, intended solicitation of a child to be different from solicitation in any other context. Solicitation is specifically identified as an anticipatory crime in our Kansas Criminal Code.
The COA notes that the legislature has created a new offense of electronic solicitation, which may cover these circumstances, but it was not in effect at the time of the alleged offense. The newly-created offense may mean that this case involves an issue of last impression.

[Update: the state did not file a PR and the mandate issued January 5, 2009.]

Saturday, November 22, 2008

Judge ordered to desist

Shawnee County District Court Judge Mitchell received a cease and desist order from the Judicial Qualifications Commission for testifying as a character witness in a case, which judges are not allowed to do. Here is an Emporia Gazette article reporting on the case. Here is the Topeka Capital-Journal reporting on the disciplinary action.

Friday, November 21, 2008

Dismissal of Western Kansas murder case

Here is What the Judge Ate For Breakfast's report that the state will dismiss without prejudice murder charges that have resulted in two hung juries. The dismissal order indicates that the parties anticipate that it will be final unless the state discovers some new evidence in the future that "materially strengthens" its case.

Kudos to Dan Monnat and Kurt Kerns for persevering on this!

Here is the Hutch News article reporting on the dismissal. Here is the Wichita Eagle reporting on the dismissal.

Prosecutorial misconduct

Rachel Pickering won today in State v. Morris, No. 97,785 (Kan. App. Nov. 21, 2008), obtaining a new trial in a Pottowatomie County aggravated indecent liberties with a child prosecution. The COA observed that the misconduct sort of ran the gamut:
The prosecutor's examination questions to witnesses and remarks in closing argument to the jury, which stated the prosecutor's personal opinion of witnesses' credibility; suggested to the jury that it should abandon its common sense when considering these kinds of cases; expressed the prosecutor's personal belief on matters outside the evidence; vouched for the State of Kansas; referred to matters not in evidence; vouched for the credibility of the State's witness; solicited testimony from the defendant on the credibility of another witness; buttressed the credibility of the State's witness; and appealed to the passion and prejudice of the jury, were improper and constituted prejudicial error because the questions and remarks called the jurors' attention to matters that would not have been proper for them to consider in arriving at their verdict. Accordingly, we reverse and remand for a new trial.
Here we are, eight years after Pabst, still with these kinds of problems. I know some prosecutors who chastise the ADO (and other defense attorneys) for continuing to raise prosecutorial misconduct issues. In fact, overall, I think the majority of prosecutors have learned better practices, but these cases are still out there and plenty of them.

[Update: the state did not file a PR and the mandate issued on January 5, 2009.]

Friday, November 14, 2008

Short list for KSC

Here is the news release announcing the short list for the upcoming vacancy on the Kansas Supreme Court: Overland Park attorney Dan Biles, Douglas County Chief Judge Robert W. Fairchild and Court of Appeals Judge Tom Malone. Here is a Wichita Eagle article with some more details on the nominees.

The governor has a lot of pending judicial appointments at a time when there is a lot of speculation whether she will even be governor 60 days from now!

Explaining late appeals

Autumn Fox and Doug Thompson won today in State v. Patton, No. 95,860 (Nov. 14, 2008) getting a late appeal for their client. Along the way, the KSC felt the need to refine the substance and procedure for late appeals under State v. Ortiz:
We need not repeat the rest of our Kargus discussion here. Suffice it to say that the decision exposed the possibility of analytical tension and confusing overlap among Ortiz, Strickland, and Flores-Ortega. That possibility, and the rising flood of Ortiz-based arguments we observe in cases coming before our Court of Appeals and in petitions for review addressed to this court–many seeking extremely fact-specific and thus not especially useful rulings on exactly which information about direct appeal must be imparted, and by whom, and when, and on whether defendant's oral or written statements or behavior constitute a waiver, and on what measures defense attorneys are required to take to preserve their clients' appeal rights when there has been no specific direction from those clients–motivate us to attempt clarification and, to the extent necessary, reconciliation of the controlling and persuasive law on the permissibility of late criminal appeals in Kansas.
To begin, it is important to recognize what Ortiz did not do. It did not endow criminal defendants with any additional constitutional rights. It did not impose affirmative duties on counsel or the court. It did not set up new requirements that must be met to prevent a late appeal. Arguments based on any of these approaches twist its intention and application.

Ortiz merely recognized the basic principle that a criminal defendant enjoys certain procedural due process protections, not only at trial or plea but also on appeal. These protections form the parameters and fill in the content of fundamental fairness; when they are ignored or violated, a remedy is necessary. We set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.

We place conscious emphasis on "exceptional." Even after Ortiz, even in the glaring light emitted by its recent superstardom, the general rule remains that timely filing of a notice of appeal is indispensable and jurisdictional.

. . . .

It is evident to us today that what have come to be known in Kansas as the three "Ortiz exceptions" are grounded not only in fundamental fairness (here, procedural due process) but in the Sixth Amendment right to counsel. The first of the exceptions–applicable when a defendant was not informed of the right to appeal–goes to procedural due process alone. The second and third exceptions–applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal–go to the right of counsel and effectiveness of counsel. We have attempted to take the distinction in the constitutional bases of the exceptions into account in developing the following rules.

The first exception (not informed of the right to appeal) is based in the Due Process Clause and requires advice regarding the right to appeal, the time limits for an appeal, and the right to appointment of counsel on appeal. The defendant has the burden to show that he/she wasn't informed in the sentencing transcript. If the defendant meets that burden, the burden shifts to the state to show that the defendant had the missing information by another source, perhaps advice of counsel or a written plea agreement. If the defendant was not fully advised of the right to appeal, he/she still has to show that he/she would have appealed had he been informed of the right.

The second exception (not provided an attorney to appeal) is based in the Sixth Amendment right to counsel and only applies to indigent persons. The defendant has the burden to show that he/she timely sought an attorney to appeal and would have instructed counsel to appeal had counsel been appointed.

The third exception (provided an attorney that failed to perfect appeal), is also based in the Sixth Amendment right to counsel, but applies to all criminal defendants. The KSC applies the test from Roe v. Flores-Ortega, 528 U.S. 470, 470-72 (2000). Roe says that (1) if client explicitly tells attorney to appeal and attorney fails to appeal, ineffective assistance of counsel, (2) if client explictly tells attorney not to appeal and attorney does not appeal, no ineffective assistance of counsel, period; (3) if attorney does not receive explicit direction from client regarding appeal, court must make findings whether performance deficient. If client can make this showing, he/she gets a late appeal. He/she does not have to show that he would have prevailed on appeal.

Because the record was clear that Mr. Patton asked for an appeal and his attorney failed to perfect it, the KSC applied the third exception and held that he was entitled to an appeal (and application of McAdam).

For the most part, these refinements should be useful. As many of you know, I have been involved in a lot of Ortiz remands and have often wondered about the burden of proof and exactly what had to be proved under Ortiz. This decision will provide a lot of guidance that way. The KSC did not discuss the effect (if any) of the regulations governing post-trial responsibilities of appointed trial counsel (i.e. that appointed counsel must file a notice of appeal unless he/she has a written waiver of appeal). And the KSC did not expound on what might suffice for proof that a defendant would have appealed had he/she been properly advised of the right to appeal. But the procedure and substance certainly are a lot clearer today than yesterday.

Short list for district judge in Lawrence

Here is the announcement of the short list to fill a vacancy in the Seventh Judicial District, including former ADO B. Kay Huff; and Sally Davis Pokorny, a Lawrence attorney, and Kenneth M. (Mike) Warner, an assistant U.S. district attorney in the Western District of Missouri.

Second short list in First district

Having just filled the first of two vacancies in the Northeast Kansas judicial district, here is the announcement of the second short list of district court nominees, including Gerald R. Kuckelman, Atchison County Attorney; Michael F. Willcott and Danny K. Wiley.

Tuesday, November 11, 2008

Not guilty in Lyon County rape case

Here is an Emporia Gazette article reporting that a Lyon County jury ended a week-long Lyon County rape prosecution with acquittals on all counts. Anybody know who the defense attorney was?

[Update: I was told by a little bird that the attorney was none other than SuperLawyer Tom Bartee!]

Friday, November 07, 2008

New district judge in First

Here is the governor's press release announcing that she has appointed Michael Gibbens to be a district judge in Leavenworth and Atchison Counties.

Wednesday, November 05, 2008

Judicial elections results

Here is a Wichita Eagle article reporting on some of the contested judicial elections in Sedgwick County. Of note, J. Patrick Walters won over incumbent district judge Rebecca Pilshaw, who has had several disciplinary issues in the past few years. Incumbent districrt judge Warren Wilbert, who had a disciplinary matter of his own, appears to have narrowly defeated former district judge Karen Langston. And in open seats, state senator Phil Journey beat former PD Carol Bacon and Jeff Syrios beat current PD Jama Mitchell.

As far as I can tell, all judges and justices that were up for retention were approved by wide margins.

And here is a Kansas City Star article reporting that a proposal to move from appointed judges to partisan election of judges in Johnson County failed by a wide margin.

[Update: here is an entry on What the Judge Ate for Breakfast reporting that there will be a recount in the Wilbert/Lanstson race]

Friday, October 31, 2008

December 2008 KSC Docket

Here are the criminal cases on the KSC docket for December 2-4, 2008. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

December 2--Tuesday--a.m.

State v. Kendrall Ransom, No. 99,281 (Sedgwick)
Direct appeal; First degree murder
Carl Maughan
[Affirmed; Beier; May 15, 2009]

  1. Denial of suppression of statements
  2. Improper admission of co-defendant hearsay
  3. Failure to instruct on proximate cause
  4. Failure to grant mistrial after in limine violation
  5. Improper amendment of complaint after state rested
  6. Sufficiency of evidence
State v. Kendrick Gracey, No. 99, 310 (Sedgwick)
Direct appeal; Aggravated indecent liberties with a child
Carl Folsom III
[Reversed and remanded; Rosen; Feb. 6, 2009]

  1. Failure to consider downward dispositional departure

December 2--Tuesday--p.m.

State v. James Thomas, No. 99,711 (Sedgwick)
Direct appeal; Aggravated indecent liberties with a child
Rachel Pickering
[Affirmed; Luckert; Jan. 30, 2009]

  1. Disproportionate sentence
  2. Failure to grant downward durational departure
State v. Alan Salts, No. 99,533 (Sedgwick)
Direct appeal; Indecent liberties with a child
Rick Kittel
[Affirmed; Beier; Feb. 6, 2009]

  1. Improper deadlocked jury instruction

December 3--Wednesday--a.m.

State v. Nicholas Bennett, No. 98,038 (Dickinson)
Direct appeal (petition for review); Possession
Patrick H. Dunn
[Reversed and remanded; Davis; Jan. 30, 2009]

  1. Improper probation condition in re searches
State v. Earl Brinklow, No. 96,231 (Barber)
Direct appeal (petition for review); Aggravated indecent liberties with a child
Patrick H. Dunn
[Reversed and remanded; Johnson; Jan. 30, 2009]

  1. Failure to sequester witnesses
  2. Prosecutorial misconduct
  3. Sufficiency of evidence
State v. Wendell Leshay, No. 99,725 (Geary)
State's appeal
Janine Cox
[Reversed; Johnson; Aug. 28, 2009]

  1. Constitutionality of statute admitting KBI reports at preliminary hearing
State v. Jeremy Wells, No. 99,813 (Riley)
Direct appeal; Criminal sodomy
Elizabeth Herbert
[Reversed and remanded; Nuss; Dec. 11, 2009]
  1. Improper limitations of defense expert witness testimony
  2. Improper admission of prior bad act evidence

December 3--Wednesday--p.m.

State v. Christopher Gant, No. 98,026 (Sedgwick)
Direct appeal; First degree murder
Matthew Edge
[Affirmed; Rosen; Jan. 30, 2009]

  1. Denial of suppression of statements
  2. Error to allow detective to sit at counsel table
State v. Tommy May, No. 98,708 (Sedgwick)
Motion to correct illegal sentence
Carl Maughan
[Affirmed; per curiam; Feb. 23, 2009]

  1. Failure to appoint counsel for motion

December 4--Thursday--a.m.

State v. Aaron Valladarez, No. 99,724 (Ford)
Direct appeal (transfer); Possession
Christopher O'Hara
[Remanded; Luckert; May 8, 2009]

  1. Jurisidiction of magistrate judge to take felony plea
  2. Sufficiency of allocution
State v. Eric Hoffman, No. 98,394 (Greenwood)
Direct appeal; First degree murder
Korey Kaul
[Affirmed; Rosen; Jan. 30, 2009]

  1. Failure to instruct on misdemeanor manslaughter
  2. Sufficiency of evidence of proximate cause
  3. Improper admission of prior bad act evidence
  4. Improper admission of gruesome photographs

Friday, October 24, 2008

Sixteen apply to be Douglas County judge

Sixteen Douglas County attorneys have applied to fill the district court vacancy created by Judge Jack Murphy's upcoming retirement. Here is an article from the Lawrence Journal-World on the subject. And here is the news release from the judicial branch web site. If you have any input regarding the candidates, be sure to contact the Nominating Commission as soon as possible.

Tuesday, October 21, 2008

Judicial elections around the corner

Here is a Wichita Eagle article reporting on a couple of contests for open judicial seats in Sedgwick County. Elections are just two weeks away!

Lesser verdict in Salina

Here is a Salina Journal article reporting that Julie McKenna won acquittal on felony charges in a Saline County drug prosecution.

Friday, October 17, 2008

Only eight apply for KSC

Here is a press release naming the eight persons that submitted their names for the upcoming vacancy on the Kansas Supreme Court, including Court of Appeals Judges Thomas Malone and Steve Leben and District Judge Robert Fairchild. The list also includes former democratic AG candidate and current Securities Commissioner Chris Biggs and former state representative Ward Loyd. If you have input, get it to the nominating commission as soon as possible.

Acquittal in Lawrence

Here is a Lawrence Journal-World article reporting that Michael Clarke won an acquittal on the primary charges in a Douglas County attempted aggravated criminal sodomy prosecution. The article is deliberately sketchy about the details, so I don't know much more. If anyone wants to supplement this, let me know.

Wednesday, October 15, 2008

Maybe speedy trial clock doesn’t always start at arraignment

As everyone knows, K.S.A. 22-3402 sets forth a defendant’s statutory right to a speedy trial in Kansas. The statute explicitly states that the speedy trial clock starts on the day of arraignment. However, I have recently argued that the speedy trial clock should start on the day the defendant was supposed to have his or her arraignment. Often times, a defendant waives prelim, and then is not arraigned for several weeks. However, the legislature has mandated that arraignment occur on the date prelim is waived.

K.S.A. 22-3206(3) states that when a defendant waives preliminary examination, "arraignment shall be conducted at the time originally scheduled for the preliminary examination if a judge of the district court is available." Since the defendant is appearing before a judge for the waiver of the prelim, there usually is a judge available to arraign the defendant (and when they’re in front of a magistrate judge, K.S.A. 20-302b(a) gives the district magistrate judge jurisdiction to hear felony arraignments).

Thus, the legislature intended arraignment to occur when a preliminary hearing is waived, and intended the speedy trial clock to start from there. When a defendant’s arraignment is delayed contrary to the mandatory language of K.S.A. 22-3206(3), the time between the waiver and the arraignment should be charged to the State.

Friday, October 10, 2008

Accidents happen

Washburn student intern Krystle Dalke and I won in State v. Hernandez, No. 98,968 (Kan. App. Oct. 10, 2008), affirming Judge Young's dismissal of a Saline County aggravated child endangerment prosecution. The case stemmed from an accident where Ms. Hernandez' child wandered from his house and fell into a pond created by the heavy rains in May 2007. The COA reviewed cases from other states evaluating evidence of recklessness with regard to monitoring children:
The case law cited above persuasively supports the district court's finding insufficient evidence of reckless conduct was presented at the preliminary hearing to support the charge of aggravated endangerment of a child. The testimony established the defendant was alternating between cooking dinner and watching the children through a window. When the defendant looked away for "a moment," the children were gone and she went looking for them. The trailer park where the defendant lived was right behind the Dillons grocery store. While the defendant's supervision was certainly less than ideal, the time frame the children were left unsupervised in this case is far less than the 45 minutes the children were left alone in their front yard in [State v. Riggs, 2 S.W.3d 867 (Mo. App. 1999)] and the babysitter checking in once in 30 minutes on the children on the playground in [State v. McLeod, 846 N.E.2d 915 (Ohio App. 2006)], where the Missouri and Ohio courts found no reckless conduct.

As a result, the COA affirmed the dismissal.

[Update: the state did not file a PR and the mandate issued on November 13, 2008].

Thursday, October 09, 2008

Acquittal in high profile Shawnee County cold case

Here is a Topeka Capital-Journal article reporting that Kathleen Ambrosio won an acquittal in a State v. Netherland, a high profile Shawnee County first-degree murder prosecution. You can read about the eight-day trial here, here, here, and here. I think there was a lot of issues surrounding false confessions in this case.

Jurors seem satisified with appointed judges

Here is an Olathe News article reporting that jurors surveyed indicated a very favorable opinion of the appointed district judges in Johnson County. The article indicates that there is a measure on the ballot in Johnson County regarding a change from appointed to elected judges. A similar attempt was defeated in Shawnee County a couple of years ago.

Here is a later Kansas City Star article on some of the publicity surrounding the ballot question.

Couple of district court vacancies

Here are the press releases announcing judicial vacancies in the Seventh Judicial District (Douglas County) and the Tenth Judicial District (Johnson County). If you think you would be a good judge, get your application in now!

Monday, September 29, 2008

Fifteen apply for district court in 1st District

Here is the news release announcing that fifteen lawyers, including several prosecutors, applied for the impending vacancies in the First Judicial District covering Leavenworth and Atchison Counties. If you have any input on these attorneys, be sure to get it to the Nominating Commission as soon as possible.

Saturday, September 27, 2008

Reversal based on improper shackling before jury

Washburn student intern Patrick Turner and I won in State v. Anderson, No. 96,602 (Kan. App. Sept. 26, 2008), remanding a Cloud County criminal threat prosecution for a new trial. The only issue addressed in the opinion was the district court's refusal to allow Mr. Anderson to appear at his jury trial without leg shackles. Just prior to trial, defense counsel asked that they be removed. The district court said that the deputy wanted them on, so they should stay on. Defense counsel clarified that the district court was not finding that Mr. Anderson was a flight risk or that he had been disruptive, the district court's order was just based on the deputy's policy.

That made a pretty easy decision for the COA:

Here, it is impossible to review this case using the abuse of discretion standard since the district court failed to exercise its discretion. It simply deferred to the wishes of the jailer. The nature of judicial discretion was discussed in State v. Foren, 78 Kan. 654, 658-59, 97 P. 791 (1908): "Discretion is the freedom to act according to one's judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence–to act upon fair judicial consideration, and not arbitrarily."

Rather than exercising judicial discretion in considering Anderson's request that the shackles be removed, the district court deferred to the jailer and let him decide. The jailer's decision became the court's decision, without analysis or application of the principles of law to the facts presented. As such, the district court clearly abused its discretion.

The State acknowledges that the shackles were apparent to the jurors deciding Anderson's innocence or guilt. Anderson was charged with criminal threat, that is, that he threatened violence with the intent to terrorize others. The presence of shackles clearly sent the message to the jury that here is a violent and dangerous man. The discretion to shackle Anderson throughout the trial was exercised without any proper analysis to support it. Under these circumstances, the use of shackles was inherently prejudicial.

I guess that's why district judges get paid the big bucks--to make decisions.

[Update: the state did not file a PR and the mandate issued on October 30, 2008.]

That's why you need to confront

I saw a couple of related posts this morning. First was this nice post on the Kansas Federal Defender blog reporting on the closing of a Detroit police lab for, at least, incompetence. Professor Friedman also commented on the closure in this post on the Confrontation Blog, noting that it provides ample evidence of the need for cross-examination of what prosecutors want to call "routine" lab reports.

Friday, September 26, 2008

He looks pretty alive to me

Washburn student intern Laurie Blanton and I won in State v. Shafer, No. 98,016 (Kan. App. Sept. 26, 2008)(unpublished), reversing a Saline County possession conviction. Officers were called to investigate Mr. Shafer who had been reported slumped over in his vehicle in a driveway. Officers woke up Mr. Shafer who indicated that he was fine and had merely locked himself out of his house and did not want to wake people during the night. Even though Mr. Shafer was clearly okay, police detained Mr. Shafer by taking his identification, eventually leading to a search in which officers say they find drugs. The state argued that the continuing encounter was consensual; the COA disagreed:
Even if we were to concede that Shafer was not "stopped" or "seized" at the outset of this encounter, there is no question that he must be considered "seized" when the officer requested and retained his drivers' license. Generally, an officer's retention of a defendant's documentation is significant because it indicates the defendant did not reasonably feel free to terminate the encounter. Therefore, when the driver has relinquished his license to an officer, the State cannot rely on the defendant's consent to justify further detention, questioning, or a search. We decline to anyalze this encounter as "consensual" after the officer requested and retained Shafer's license.
Because the officer's actions exceeded the very limited scope of a welfare check, the majority held that the officer violated the Fourth Amendment and reversed.

Judge Leben dissented from the Fourth Amendment ruling, but concurred with reversal and remand because the record did not include a valid waiver of Mr. Shafer's right to a jury trial.

[Update: the state filed a PR on October 24, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on April 10, 2009.]

Thursday, September 25, 2008

New district judge in Johnson County

Here is the governor's press release announcing the appointment of Thomas Kelly Ryan to the district bench in the Tenth Judicial Circuit. The press release indicates that Ryan practices in the area of criminal defense, so some of you may know him.

Tuesday, September 16, 2008

Nominating commission gets busy to fill spot on KSC

Here is a news release announcing that the Supreme Court Nominating Commission is accepting nominations to fill the vacancy on the Kansas Supreme Court that will result from Chief Justice McFarland's retirement this upcoming January. Applications are due in the Clerk's office October 17, 2008.

Two vacancies in First

Here is a news release reporting that the First District Judicial Nominating Commission (covering Leavenworth and Atchison Counties) will be busy with the impending retirement of Judge Lacey and Judge Stewart. Nominations are due September 25, 2008, so if you are interested in being a district judge, or know someone that should be a district judge, get busy!

Short list in Johnson County

Here is the news release announcing that the Johnson County Judicial Nominating Commission forwarded three names to the governor to fill the district judge position being vacated by Judge Isenhour. The nominees are Thomas Kelly Ryan, Neil Foth, and magistrate judge James Phelan. If you have comments about these nominees, pass them on to the governor!

Monday, September 15, 2008

Long road to IAC finding

Alice White at the KU Defender Project won a new trial in Saleem v. State, No. 06-CR-1843 (K. Dist. Ct. Sept. 5, 2008). Mr. Saleem was convicted of murder in 1997 and lost his direct appeal in 1999 (here). Mr. Saleem filed an initial 1507 petition, which was denied in 2000. Mr. Saleem next filed a 2254 petiton in federal court, which was stayed pending filing another 1507 petition to exhaust federal claims. The Defender Project filed that petiton in 2004 and it was initially summarily denied. In April 2007, the COA remanded for an evidentiary hearing and last week, Judge Leuenberger granted a new trial.

Mr. Saleem based his IAC claim on defense counsel's failure to object to admission of a videotape that included prejudicial statements about prior bad acts. In light of defense counsel's testimony that the failure to object was an oversight, the district court rejected the state's claim that the decision was strategic:

It is preposterous to imagine any attorney who is providing the standard of performance guaranteed by the Sixth Amendment to advance prior bad acts of an alleged shooting as trial strategy in a murder case.
So more than ten years after initial conviction, Mr. Saleem gets a chance at a fair trial.

As a note of interest, the initial KSC case was one of the first times where we saw courts struggle over the difference (or lack thereof) between first and second degree murder. Justice Allegrucci described the problem in his concurring opinion:
By defining "premeditated" as simply meaning "to have thought over the matter beforehand," the majority has effectively converted second-degree murder to first-degree murder. "Intentionally" is defined as meaning "conduct that is purposeful and willful and not accidental. Intentional includes the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose.'" PIK Crim. 3d 56.04(d). How does one intentionally kill another human being without thinking about it beforehand? The jury is also instructed that if it does not find the defendant guilty of first-degree murder, then it should consider the lesser offense of second-degree murder. It is difficult to comprehend how a jury so instructed would ever consider the lesser included offense of second-degree murder.

As noted in the majority opinion, this court has used words such as "plan," "contrive," and "schemed beforehand" to define premeditation. This court has required that a defendant not only think it over beforehand, but also to come to the conclusion that he or she would kill the victim and then do so. The majority, by approving PIK Crim. 3d 56.04(b), has, in my opinion, essentially repealed 21-3402(a).

Although the PIK instruction has been modified, this problem continues to confound the KSC, as demonstrated by Justice Johnson's recent concurrning opinion in State v. Warledo, No. 97,759 (Kan. Aug. 8, 2008):
What I cannot grasp is the concept that one can have thought the matter over beforehand, when the intent to kill is formed during the course of committing the murderous act, e.g. while strangling or stomping the victim. In other words, in my mind, "beforehand" means prior to commencing the death-causing act, rather than during said act but sometime prior to its effecting the death. If we merge the concept that the killer must have thought over the matter beforehand, as in premeditated first-degree murder, with the concept that a killer must have formed the intent to kill prior to the victim's death, as in intentional second-degree murder, we have rendered the premeditation element redundant and opened the door to defendant's same elements argument.

Accordingly, I view portions of the closing argument to have been an incorrect statement of the law, especially where the prosecutor argued that premeditation could be formed "between the first and second stomps, between the second and third stomps, at any point during the stomping."
So keep litigating that point. Ask for instructions that require more for premeditation.

[Update: the state filed an appeal of this decision--appeal no. 101629.]

Saturday, September 13, 2008

Juvenile adjudication doesn't trigger persistent sex offender penalty

Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. App. Sept. 5, 2008), reversing a Sedgwick county enhanced persistent sex offender sentence. The COA reviewed the statutory scheme and concluded that it only applies to convictions, not juvenile adjudications:
K.S.A. 21-4710(a) has no explicit application to anything but figuring the criminal-history score, a separate endeavor from classifying a person as a persistent sex offender. In K.S.A. 21-4710(a), the legislature certainly has carefully defined which past convictions and adjudications count in calculating a criminal-history score. But the past cases we have cited note how carefully the statutes for criminal sentencing have been constructed. For the reasons we have explained, we cannot add language to K.S.A. 21-4704(j) that is not present there--and the statute simply makes no reference at all to juvenile adjudications or, for that matter, to K.S.A. 21-4710(a).
The COA acknowledged that this result was different than a previous unpublished COA case, but was persuaded by the clear statutory language.

[Update: the state filed a PR on October 6, 2008.]

[Further update: the state granted the state's PR on January 22, 2009. The case will likely be argued in May or next September.]

[Further update: the KSC affirmed the COA on June 19, 2009. Here is blog coverage of decision.]

A little cash in your pocket isn't probable cause

Kristen Patty and Kurt Kerns won in State v. Fitzgerald, No. 95812 (Kan. Sept. 12, 2008), reversing a Sedgwick County possession with intent convicition. The case stemmed from a valid vehicle stop:
Fitzgerald was pulled over while traveling by himself in his girlfriend's truck in the late afternoon. He had run a stop sign. Officer R.A. Thatcher discovered that Fitzgerald's driver's license was suspended. Fitzgerald told Thatcher that he had already called his girlfriend to come to the scene and pick up his truck, and he was completely cooperative while Thatcher placed him under arrest. Once Fitzgerald was cuffed and patted down, Thatcher found $2,673 in cash, which Thatcher described as "a mini cash register," when going through Fitzgerald's pockets. This discovery prompted the officer to ask Fitzgerald about his employment. Fitzgerald replied that he earned $10 an hour at a car detailing shop and that the money in his pockets was for rent and bills.
The officer then returned to the girlfriend's truck with the intention of searching it for drug evidence. He did so and found methamphetamine, digital scales, and several small plastic bags inside.

The KSC reviewed the six circumstances the state asserted provided probable cause but found them wanting:
When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher's initial search of the truck. Of the factors it cites, most are neutral or helpful to the defense, tending to diffuse suspicion rather than enhance it. Those factors that do contribute to probable cause are weak. The district court should not have relied on the probable cause plus exigent circumstances exception to the warrant requirement to admit the evidence derived from the initial search of the truck.

Here is a Wichita Eagle article reporting on the KSC case.

Friday, September 12, 2008

Acquittal in Reno County kidnapping case

Sarah Sweet-McKinnon won an aquittal in State v. Curtis, ending a Reno County kidnapping and aggravated burglary case. Here is the Hutch News article reportingon the case. Nice job Sarah!

Thursday, September 11, 2008

Mental Health Courts

Ron Sylvester, at What the Judge Ate for Breakfast, reports that the City of Wichita has received federal funding for a mental health court.

According to Hon. Matthew D’Emic, there were over 150 mental health courts in the U.S. as of last fall. Here is his article analyzing the experiment of a mental health court in Brooklyn, NY.

Tuesday, September 09, 2008

October 2008 KSC docket

Here are the criminal cases on the KSC docket for October 14-17, 2008. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

October 14, 2008-Tuesday-a.m.

State v. Jason Overstreet, No. 95,682 (Sedgwick)
Direct appeal (petiton for review); Attempted first degree murder
Michelle Davis
[Reversed and remanded; Davis; Jan. 30, 2009]
  1. Improper instruction and argument on aiding and abetting
  2. Improper conduct of jury after case submitted
  3. Ineffective assistance of counsel
  4. Multiplicity of alternative charges
State v. Carl Howard, No. 98,976 (Sedgwick)
Motion to correct illegal sentence; Aggravated kidnapping
Carl Maughan
[Affirmed; Nuss; Dec. 19, 2008]
  1. Improper summary denial of motion to correct illegal sentence
State v. Robert Phillips, No. 96,754 (Sedgwick)
State v. Alan Wenzel, No. 97,548 (Reno)
Direct appeals (consolidated) (petitions for review)
Carl Folsom, III & Christina M. Waugh
[Affirmed; Luckert; June 19, 2009]

  1. Failure to announce court costs and other fees at sentencing
State v. David Woodward, No. 99,280 (Sedgwick)
Motion to vacate plea and dismiss indictment
Carl Maughan
[Affirmed; Johnson; March 6, 2009]
  1. Constructive breach of plea agreement
October 14, 2008-Tuesday-p.m.

State v. Gregory Walls, No. 98,260 (Shawnee)
Motion to correct illegal sentence
Johathan B. Phelps (argue); B. Joyce Yeager (brief)
[Affirmed; per curiam; Dec. 5, 2008]
  1. Speedy trial violation
State v. Robert Jones, Jr., No. 97,992 (Lyon)
Direct appeal (petition for review); Sale
Heather Cessna (argue); Sarah Morrison (brief)
[Voluntary dismissal Oct. 14, 2008]
  1. Failure to consider Labette
State v. Larry Bee, Jr., No. 97,677 (Labette)
Probation violation appeal (petition for review); Possession
Rachel Pickering
[Affirmed; Rosen; May, 2009]

  1. Failure to consider Labette
October 15, 2008-Wednesday-a.m.

State v. Jay Decker, No. 98,226 (Douglas)
Direct appeal; First degree murder
Kari Nelson
[Affirmed; Johnson; March 13, 2009]
  1. Gruesome photos
  2. Improper admission of prior bad acts
  3. Failure to allow defense to question witness
  4. Prosecutorial misconduct
  5. Failure to give accomplice instruction
  6. Cumulative error
State v. Galen Youngblood, No. 96,850 (Harvey)
Direct appeal (petition for reveiw); Possession
Michelle Davis
[Reversed and remanded; Johnson; May 8, 2009]
  1. Improper enhancement based on invalid prior conviction
October 15, 2008-Wednesday-p.m.

State v. Ryan Schultz, No. 98,727 (Shawnee)
State appeal (petition for review)
Thomas Lemon
[Aff/Rvd in part; Beier; July 24, 2009]
  1. Suppression of statements
October 16, 2008-Thursday-a.m.

State v. Walter Anderson, No. 97,420 (Wyandotte)
Direct appeal; First degree murder
Michael J. Bartee
[Affirmed; Nuss; Dec. 5, 2008]

  1. Failure to give compulsion instruction
  2. Improper admission of dying declarations
  3. Improper instruction on presumption of innocence
State v. Merle Vaughn, No. 98,840 (Wyandotte)
State appeal (transfer); Conspiracy to commit official misconduct
Edward Gillette
[Reversed and remanded; Davis; Jan. 30, 2009]

  1. Speedy trial violation
Christopher Trotter v. State, No. 98,563 (Wyandotte)
K.S.A. 60-1507 appeal; Capital murder
Rebecca E. Woodman
[Aff'd in part, rev'd in part; Luckert; Jan. 30, 2009]

  1. Multiplicity between capital murder and first degree murder
State v. Carl Cofield, No. 98,133 (Wyandotte)
Direct appeal; First degree murder
Rachel Pickering
[Affirmed; Rosen; March 27, 2009]

  1. Suppression of statements
  2. Improper aiding and abetting instruction
  3. Improper Allen type instructions
  4. Improper instructon on burden of proof
De Andre Harris v. State, No. 98,845 (Wyandotte)
K.S.A. 60-1507 appeal (transfer); First degree murder
Christopher Cuevas (argue); B. Joyce Yeager (brief)
[Affirmed; Rosen; March 27, 2009]

  1. Ineffective assistance of counsel

Monday, September 08, 2008

PD runs for US Senate!

Well, at the risk of being accused of self-promotion, I did want to announce to all blog readers that I will be on the ballot this year as the Libertarian candidate for US Senate in Kansas.

For the past seven years, I have been more and more frustrated with the current administration's gutting of the Rule of Law. The president acts as if he is above international and domestic law and even had his department of justice draft memos to support this audacious claim. I can't believe that my president thinks that torture is okay. And I can't believe that my president thinks that spying on his own citizens is okay. The very Constitutional and human rights that the president routinely ignores are the very things that should make the United States stand out in the world. "Liberty and Justice for All" aren't just words--they are the concepts that make the United States a great country. This administration has undercut those concepts for eight years and I have never heard my current US Senator criticize or work to prevent such decay of our fundamental freedoms. It's not surprising considering that president helped my current US Senator raise millions of dollars for his re-election campaign.

So, I decided to try to speak out and am on the ballot. I know the obstacles and hurdles involved in such a run. Maybe it's that PD mentality at work. I know I am outgunned in resources and probably won't win. But that's not a reason to give up. I want to vote for a candidate this year that is not a long-time Washington insider funded by special interests and I want to vote for a candidate who is committed to protecting the Rule of Law. I am that candidate.

Want to help? See my web site at You can contact me through the address listed on that site: I will not have the millions of dollars that my opponents have from special interests, but if you would like to encourage a voice for the Rule of Law this year, please consider helping. As they say on public radio/TV, any contribution would help. I will have some yard signs soon and if you would like one, e-mail me. Or just get the word out though your e-mail and word of mouth. There is a choice this year. But I need help letting voters know.

Thanks and get out the vote this year!

[BTW: before all you government watchdogs get frothing, I have always made clear that this blog is a personal blog. It is not supported or approved by a state agency. I am writing this entry on my own computer using my own Internet connection on my own time. I will leave it to Carl to decide whether there are any other developments in this race that are blog-worthy!]

Tuesday, September 02, 2008

Speedy sentencing right

I saw this blog post on Sentencing Law and Policy reporting that the Delaware Supreme Court vacated a conviction based on a constitutional speedy trial violation stemming from a delayed sentencing proceeding. We have previously blogged about such a claim here and I have filed a sentencing issue based on the Speedy Trial Clause in the last year. Where there are big delays in sentencing that are not the fault of the defendant, be sure to think about a Sixth Amendment objection. Especially where you can show prejudice (like additional criminal history).

Couple of cert petitions filed

We filed a couple of cert petitions last week.

The first was Denny v. Kansas, seeking review of (1) the prior conviction exception left intact after Apprendi and (2) whether juvenile adjudications fall into the prior conviction exception. We have filed a couple dozen cert petitions on these issues since Apprendi in 2000, and although the SCOTUS has ordered responses in a couple of them, none have been granted. The second issue in particular is a good cert issue with a huge split among state jurisdictions and federal circuits and between state and federal jurisdictions. But so far the SCOTUS hasn't seen fit to resolve the important question.

The second petition, filed by Carl and I together, is Green v. Kansas, seeking guidance on an important post-Apprendi question: can states use non-statutory aggravating factors to support upward durational depatures? You may remember that the KSC accurately presaged Blakely on the application of Apprendi to upward durational depature findings. After State v. Gould, the Kansas Legislature enacted an upward durational departure scheme and we are now seeing some upward durational depature trials. But many of these trials are based on allegations of non-statutory aggravating factors. The question presented in this case is whether the state can base an upward durational departure on such non-statutory factors.

Justice Hurwitz of the Arizona Supreme Court recognized the potential flaw in using such "catch-all" provisions as aggravators in his concurring opinion in State v. Price:
But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the "catch-all" is the only factor that makes a defendant eligible for a sentence beyond the presumptive term. In that situation, one of the elements of the aggravated crime under former A.R.S. § 13-702(C)(18) is effectively "[a]ny other factor the court deems appropriate to the ends of justice." Under the current "catch-all," A.R.S. § 13-702 (C)(24), the "functional element" of the aggravated crime in such a case is "[a]ny other factor that the state alleges is relevant to the defendant’s character, background or to the nature or the circumstances of the offense."
A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the "aggravated crime," of precisely what is proscribed under the critical "catch-all" element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus "anything else the court or the state may someday later find relevant."
A statute that fails to provide fair notice of precisely what acts are forbidden "violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). When criminal penalties are at issue, "[a]ll are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Moreover, by failing to provide an explicit standard for a sentencing judge, the "catch-all" element would also seem to offend due process by allowing for arbitrary and discriminatory enforcement. See Smith v. Goguen, 415 U.S. 566, 575 (1974) ("Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections."); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) ("A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . . .").
It is difficult for me to see how an element of a crime as loosely defined as the "catch-all" aggravator can satisfy these basic elements of due process when used as the only "functional element of a greater offense."
This issue is likely to be recurring in jurisdictions that have reformed their determinate sentencing schemes to conform with Apprendi and Blakely. Of course the odds of cert being granted in any given case are long, but you should be sure to make a Due Process and Sixth Amendment objection to any use of non-statutory aggravating factors in upward durational depature proceedings.

[Update: although the state--as usual--waived its response in both cases, the SCOTUS requested a response from the state in Green, due on October 22, 2008. Here is the order. That does not necessarily indicate much interest. But on the other hand, they would not grant the petition without allowing a response, so it is at least one hurdle overcome. No response requested in Denny, it is set for conference on October 10, 2008.]

[Update: the SCOTUS denied the petition in Denny on October 14, 2008.]

[Further update: the SCOTUS denied the petition in Green on November 17, 2008. But there are more cases coming down the pipeline, so keep raising this issue.]

Saturday, August 30, 2008

Downward departure affirmed

Janine Cox won in State v. Stanley, No. 98,261 (Kan. App. July 25, 2008), affirming a downward durational depature sentence imposed by Judge Nafziger in a Jackson County aggravated indecent liberties with a child prosecution. The district court imposed a 60-month prison sentence rather than the 102 month presumtive sentence based on two factors: (1) the victim's comments that she encouraged the relationship, and (2) the age difference between Stanley and the victim was “not significantly different.”

The state did not contest the factual basis for these findings, but contended they were should not be used as aggravating factors as a matter of law. The COA disagreed:
Here, the district court granted a downward durational departure based on the victim's comments that she encouraged the relationship. This was supported by a handwritten letter from H.H., indicating that she had encouraged Stanley's criminal conduct. Stanley had also alleged that H.H. lied about her age at the time of the sexual encounter. Furthermore, H.H. specifically asked the district court for leniency in sentencing Stanley. As stated by the court in [State v. Minor, 268 Kan. 292, 997 P.2d 648 (2000), although a minor female victim's cooperation leading up to a criminal act is not a defense to the charge, such facts may be properly considered by the sentencing court in imposing punishment. Under the facts of this case, we conclude the district court's finding that the victim encouraged the relationship constituted a substantial and compelling reason for the departure sentence.

After Minor, this seems clearly correct.

[Update: the state did not file a PR and the mandate issued on August 29, 2008.]

Friday, August 29, 2008

And the survey says . . .

Here is a link to the newly reported judicial evaluations issued by the newly created Commission on Judicial Performance. The reports recommend that all of the appellate judges up for retention be retained. There appears to be some glitches to be worked out of this system, particularly with regard to the attorney evaluations. Although the private firm hired to compile this work indicates that it attempted to contact 140 attorneys who had cases before one of the retention judges, very few apparently responded. In one case, there are no attorney evaluations "Due to the small number of attorneys who completed the evaluation questionnaire regarding your performance." In the other cases the sample size is between 7 and 20. This is compared with a sample size of district judges of 140.

One part of the problem is that lots of appellate attorneys were apparently not surveyed. As far as we can tell, none of the sixteen attorneys in the ADO received a survey about any of the six appellate judges. And from what we can tell, none of the prosecutors who regularly appear before the appellate courts did either. Obviously, we have more cases before the appellate courts than the vast majority of private attorneys. I have heard that the Commission is aware of the problem and that it will be addressed in future evaluation cycles. It's a new system, so I suppose there will always be growing pains.

In any case, this should give voters some more information when making retention elections.

Here is a Topeka Capital-Journal article reporting on the evaluations.

Thursday, August 28, 2008

Acquittal in Hutchinson

Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Jones, ending a Reno County possession prosecution.

Municipal judge named district judge

Here is the Topeka Capital-Journal article reporting that the governor appointed Cheryl Rios Kingfisher district judge in Shawnee County. The article indicates that she will become the fourth woman on the fifteen member bench and the first Hispanic judge on the Shawnee County bench.

[Update: here is a Topeka Capital-Journal article about Judge Kingfisher being sworn in.]

Wednesday, August 27, 2008

History in the making

Here is What the Judge Ate for Breakfast's coverage of the historic panel held in Wichita this week. As Ron Sylvester notes, this is the first time that three women (who are regular members of the court) have sat on a panel together.

Carl was before this panel, but he was not the one who called a judge "Ma'am."

Monday, August 25, 2008

Addict does not equal murderer

Randall Hodgkinson won in State v. Hughes, No. 95,256 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder and aggravated burglary. Julia Spainhour won in the companion case, State v. Carapezza, No. 95,233 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder, aggravated burglary, aggravated robbery, and misdemeanor theft. In both cases, the KSC held that it was reversible error to admit expert testimony about the propensity of crack addicts to commit violent crimes.

At each trial, the state called an "expert" witness who testified that obtaining crack becomes an overwhelming preoccupation, explaining that users will continue using the drug even though they experience negative consequences. The witness also testified that people who use crack are more likely to become violent, especially when their drug-seeking behaviors are unsuccessful. He even testified that he had seen people "go the extent of robbing people on the street to obtain crack cocaine."

The KSC held that the testimony was not relevant and was improper propensity evidence:
Clements and Cheeks stand for the proposition that behavioral profile evidence is not admissible to imply guilt by showing that the defendant falls within the profile.

* * *

Like the evidence in Clements and Cheeks, Dr. Nelson's testimony did not help the jury determine whether Hughes burglarized Clark's house and robbed and killed her. The only inference from Dr. Nelson's testimony is that crack cocaine addicts will do anything to obtain the drug, so Hughes must have committed the crimes because he is a crack addict. Like the inference in Cheeks, this inference is impermissible. The district court abused its discretion in admitting Dr. Nelson's testimony.

The KSC held that the error was not harmless, because the only other evidence in each trial was the testimony of a codefendant, “whose credibility was questionable due to discrepancies between her prior statements and her trial testimony and due to her favorable plea agreement,” and the testimony of two jailhouse snitches. “Because the expert testimony relating to the propensity of cocaine addicts to commit violent crimes was not relevant and because it undermined [the defendant's] right to a fair trial, the convictions must be reversed.”

The KSC also ordered the district court to conduct a new Kastigar hearing before any retrial in either case. Because Hughes and Carapezza had received derivative-use immunity at an inquisition before their trials (and shortly after the victim’s death), the State has an affirmative duty to prove that the evidence it plans to use at any subsequent trial is derived from "a legitimate source wholly independent of the compelled testimony."

"[Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect." Kastigar, 406 U.S. at 453. At the hearing, the government must demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony. See North, 910 F.2d at 854. The district court must make specific findings on the independent nature of the proposed evidence. 910 F.2d at 855-56. No use at all may be made of the immunized testimony. 910 F.2d at 862. The fact that other witnesses were exposed to immunized testimony may suffice to taint their testimony. 910 F.2d at 863-64.

Although such tight restrictions on the use of immunized testimony may jeopardize the State's case, this court notes the caveat of the Ninth Circuit Court of Appeals in recommending caution in conducting immunized hearings:

"The government must occasionally decide which it values more: immunization (perhaps to discharge institutional duties, such as congressional fact-finding and information-dissemination) or prosecution. If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted." 910 F.2d at 862.

Congrats to Randall for getting off the schneid.

Here is an article in the Emporia Gazette reporting on the case.