Friday, May 30, 2008

Judicial candidates lining up in Sedgwick County

Here is a Wichita Eagle article reporting that State Senator Phil Journey is running for district judge in Sedgwick County along with a lot of other people. Keep me up to date on any judicial election news around the state this election cycle so that I can pass it along!

Life sentence in capital case

Sorry for the belated report. Gary Owens and Mark Manna won a life sentence in State v. Burnett, a Sedgwick County capital case. Here is the Wichita Eagle article reporting on the verdict.

Drug treatment statute does not affect length of probation

On May 28, the COA granted the ADO's motion to publish in State v. Holt, No. 95,278 (Kan. App. July 13, 2007), giving some much needed love to former ADO Jay Witt.

The Holt decision clarifies that the presumptive term of probation for a severity level 4 drug offense is 12 months- regardless of whether the court can impose a longer term for drug treatment. The COA stated:

The district court imposed an 18 months' probation term on Holt, relying on K.S.A. 2006 Supp. 21-4729. This statute provides a nonprison certified drug abuse treatment program for certain offenders. The district court found that Holt fell under the statute because he attempted to violate K.S.A. 65-4162, and he fell in the drug grid block 4-H. K.S.A. 2006 Supp. 21-4729(a)(1). According to K.S.A. 2006 Supp. 21-4729(c), “The sentencing court shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.” (Emphasis added.)

By its plain language, K.S.A. 2006 Supp. 21-4611 sets forth the maximum duration of probation that a district court can impose in felony cases. K.S.A. 2006 Supp. 21-4729, however, does not address the duration of probation. Instead it merely sets forth the maximum term for which a court can commit a defendant to a drug abuse treatment program. Simply put, K.S.A. 2006 Supp. 21-4729 only addresses the duration of a defendant's term of drug treatment, whereas K.S.A. 2006 Supp. 21-4611 addresses the duration of a defendant's term of probation.

Because K.S.A. 2006 Supp. 21-4611, rather than K.S.A. 2006 Supp. 21-4729, sets forth the maximum probation term a district court can impose, Holt's presumptive term of probation was limited to 12 months. See K.S.A. 2006 Supp. 21-4611(c)(3). The district court could have imposed a longer probation term of 18 months if it had made the necessary findings under K.S.A. 2006 Supp. 21-4611(c)(5). However, it failed to do so. Without making these requisite findings, the district court's extension of Holt's probation was an abuse of discretion, resulting in an illegal sentence.

This case has a potential impact on any probation revocation for a level 4 drug offense. If the defendant received more than 12 months probation, and the violation occured after 12 months, there is a good argument that the court does not have jurisdiction to revoke probation, because the probation term should have already expired.

Also, you might consider a motion to correct illegal sentence in any severity level 4 drug case where the court sentenced the defendant to more than 12 months probation without making any findings under K.S.A. 21-4611(c)(5).

Thursday, May 29, 2008

Persistent Sex Offenders and Due Process

Under K.S.A. 21-4704(j), if a defendant qualifies as a “persistent sex offender,” their presumptive guidelines sentence is double the maximum duration they would normally receive under the Kansas Sentencing Guidelines. In other words, take the top of the presumptive guidelines box for the defendant’s offense, and double that. This “persistent sex offender” status is usually sprung on the defendant at sentencing, after they have gone to trial or through the plea process without ever knowing the true seriousness of the offense for which they were charged.

I recently argued to the COA that the State is required to give notice in the complaint of the defendant’s “persistent sex offender” status. The argument is based on K.S.A. 22-3201(c), which creates a due process notice requirement by requiring a complaint, indictment, or information to “allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.” See State v. Masterson, 261 Kan. 158, 163-64, 929 P.2d 127 (1996).

K.S.A. 22-3201(c) does not state that the complaint must state the “severity level” of the offense. It states that the complaint must “allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.” To me, this means that the complaint is supposed to tell defendants the crime they are charged with, the elements of that crime, and essentially how serious the crime is (maximum punishment, etc.).

In Masterson, the KSC held that the complaint should allege the defendant’s prior convictions if they bump a defendant’s crime up from a misdemeanor to a felony. It seems to follow that the complaint should set forth a prior conviction that would make the presumptive sentence double the usual maximum KSG sentence.

I have had more than one client who received a sentence twice as high as the “maximum” they were told at the plea hearing because of the “persistent sex offender” sentencing provision of K.S.A. 21-4704(j). Requiring the State to allege the prior conviction in the complaint seems to be consistent with the legislative intent behind K.S.A. 22-3201(c) and would give defendants adequate notice of the real seriousness of the crime they are charged with.

Wednesday, May 28, 2008

Another Jessica's Law acquittal

I received a report that Angela Stoller of the Junction City PD's office won in State v. Schweitzer getting a complete acquittal in a Geary County Jessica's Law prosecution involving a count of aggravated indecent liberties and aggravated intimidation. The jury took less than an hour to acquit.

Tuesday, May 27, 2008

Acquittal in Rice County

Here is a Hutch News article reporting that Sarah McKinnon and Kelly Driscoll won complete acquittal in a Jessica's Law case involving ten counts of rape and twenty other charges in State v. Gregory out of Lyons in Rice County. Sarah did a good job of giving credit to the small-town jury in this article.

Friday, May 16, 2008

Threat to take away kids is coercive

Jennifer Roth, former ADO and current Shawnee County PD, won in State v. Brown, No. 96,862 (Kan. May 16, 2008) affirming Judge Parrish's suppression of statements in a Shawnee County child abuse prosecution. My previous blogs about this case here and here provide more details. Although the KSC didn't draw an absolute line, it made it clear that coercive statements obtained during CINC proceedings are not likely to later be admissible in a criminal case:
An excerpt from the case plan for the time from May 20, 2003, to November 16, 2003, shows the task: "Chris and/or Michelle will admit how injuries were sustained to children." A termination of parental rights motion was filed on January 16, 2004, and one of the factual bases listed was that the parents allowed the children to be harmed and could not or would not provide a reasonable explanation for the injuries. A permanency-objectives form listed a target date of August 16, 2004, for the parents to admit how the injuries were sustained to the children, showing that the task continued to be required after the termination motion was filed. Kansas children's Services League reports informed the district court that the agency could not assure the safety of the children in the parents' home until the cause of the injuries was made known.

The pretrial conference for the termination proceedings was set for January 5, 2005, and the trial was set for March 29, 2005. The records from the child in need of care (CINC) proceedings did not show any additional problems in the family. The caseworker's deposition confirmed there were no problems such as drug abuse or other issues of a major concern outside of the parents' inability to provide a reasonable explanation for the injuries.

These facts show that Brown was placed in a "classic penalty" situation. Although SRS may not have been motivated to obtain an admission of abuse because it planned to ensure a criminal prosecution, the penalty that Brown faced if he did not make a statement to SRS was the type of penalty capable of coercing incriminating testimony from him. His failure to invoke his constitutional privilege against self-incrimination is therefore excused, and the privilege became self-executing under the facts of this case.
The KSC went on to reject any sort of balancing between the privilege against self-incrimination with the state's interest in protecting the child:

The State also argues that the Court of Appeals improperly relied on cases in which the purpose of the interrogations was to aid law enforcement in preparing a criminal case. The State distinguishes the present case because the admissions that the State was seeking were aimed at protecting children from abuse and neglect and were not aimed at preparing a criminal case against the defendant. The argument follows that the purpose in trying to get the information from the Browns was constructive so that recommendations could be made to ensure the parents would be able to safely parent their children.

It appears the State seeks to balance its interest in protecting the welfare of children against a parent's constitutional privilege against self-incrimination. The United States Supreme Court, however, has rejected such a balancing of interests when dealing with the privilege against self-incrimination "in its pristine form." New Jersey v. Portash, 440 U.S. 450, 459 (1979) ("Balancing . . . is not simply unnecessary. It is impermissible.").

We are not called upon in this case to set out rules governing how social service agencies should conduct CINC investigations or treatment plans other than to state that such CINC proceedings based on those investigations and/or intervention plans must remain within constitutional limits.

It seems like a correct result that, where the state threatens to take away your children unless you confess, those statements are not voluntary. And every judge that looked at the question thought so!

Have to prove "inevitable" at hearing

Michelle Davis won in State v. Stowell, No. 96,091 (Kan. May 16, 2008), reversing a Reno County drug conviction. In a short decision, the KSC finds that the COA correctly refused to apply the inevitable discovery rule to cure an otherwise clear illegal search and seizure:
We need not decide if the majority's conclusion about Stowell's imminent bonding out was speculative. Nor do we need to otherwise reconcile the different Court of Appeals' outcomes in Smith and Stowell. Resolution of the instant case is more fundamental. More particularly, the State has the burden of showing by a preponderance of the evidence that the discovery of the methamphetamine was inevitable. See Ingram, 279 Kan. 745, Syl. ¶ 1. But a detailed review of the record reveals that the State did not present any evidence that Stowell would have been booked into jail or present any evidence of jail procedures. Accordingly, it did not establish that Stowell's possessions would have been searched and the key-ring pouch of methamphetamine inevitably discovered as part of the jail's inventory search procedure.

This case points out that (1) inevitable discovery is a matter that must be presented to the district court at the suppression hearing and should not be an appellate fall-back position and (2) inevitable discovery should mean "inevitable" not just "possible." Without evidence that shows that a certain procedure must occur (either by policy or strong habit-type evidence), discovery is not inevitable. So, if you are dealing with this kind of issue at a suppression hearing, be sure to ask whether there is a policy. If there is delve into it (i.e. get copy and put it in). If there is not, examine about whether there have ever been exceptions to the "inevitable" procedure. It may make or break the case.

In "custody" for habeas purposes

A pro se client won in Rawlins v. State, No. 97,260 (Kan. App. May 16, 2008), getting an order allowing her 1507 petition to go forward. Ms. Rawlins had been convicted and put on probation. After the convicton was affirmed on direct appeal, but while still on probation, Ms. Rawlins filed a K.S.A. 60-1507 motion claiming IAC. Before resolution, Ms. Rawlins completed probation. The district court subsequently held that it lost jurisdicition because she was no longer in "custody." The COA reviewed and followed precedent from federal habeas cases holding that so long as a prisoner is in "custody" at the time of filing, the court does not lose jurisdiction by completion of the sentence. And the COA reviewed the five claims raised and held that two of them required an evidentiary hearing.

[Update: the state filed a PR on June 16, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on September 25, 2008].

Death sentence reversed

Rebecca E. Woodman and Steven R. Zinn won in State v. Gavin Scott, No. 83,801 (Kan. May 16, 2008). The KSC affirmed most of Mr. Scott's convictions (including capital murder), but reversed his conviction for premeditated murder, and reversed his death sentence. The KSC remanded the case to the district court for a new sentencing phase. Here is the summary from the Office of Judicial Administration.

First-Degree Murder Conviction is Multiplicitous

The court concluded that the conviction for first-degree murder was multiplicitous with his conviction for capital murder under the old version of K.S.A. 21-3107(2)(d):

The State has acknowledged the murder of Douglas Brittain was a crime necessarily proved under the charge of capital murder. Accordingly, under K.S.A. 21-3107(2)(d) (Furse), Scott's convictions were multiplicitous in the absence of clear and nambiguous legislative intent authorizing multiple prosecutions for the same conduct. We are unable to conclude from a plain reading of K.S.A. 21-3439(a)(6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott's conviction for the first-degree premeditated murder of Douglas Brittain must be reversed.
It seems that a similar argument would be effective under the current version of K.S.A. 21-3107(2)(b), that first-degree murder is a lesser included offense of capital murder because it is “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.”

Equipoise under the Kansas Constitution

The KSC also addressed the constitutionality of the Kansas death penalty under the Kansas Constitution. The KSC declined to hold that the weighing equation set forth in K.S.A. 21-4624(e) violates the cruel or unusual punishment prohibition of § 9 and the due process provision of § 18 of the Kansas Constitution Bill of Rights. (For background, see Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006) and Kansas Supreme Court's supplemental opinion to State v. Marsh, 282 Kan. 38, 144 P.3d 48 (2006)). However, the court did encourage defendants to keep raising proportionality arguments under § 9 of the Kansas Constitution Bill of Rights:

Our decision today should not be construed to preclude future interpretation of § 9 when considering the proportionality of a criminal sentence. In such a circumstance, we are free to further consider the historical record and decide whether § 9 should be interpreted in a manner which deviates from that given to the Eighth Amendment by the United States Supreme Court.

On a side note, the oral argument on this issue was interesting, because it involved Kansas solicitor general, and former KU Law dean, Stephen R. McAllister arguing against a law review article that he had written in law school (that the Kansas Constitution should be more expansive than the U.S. Constitution).

Death Sentence Reversal

In reversing the death sentence, the KSC held that the jury instructions used for mitigating factors could have caused reasonable jurors to believe that unanimity was required to find mitigating circumstances:

[W]e have considered all of the other instructions given by the trial court in an effort to decide whether jurors could have reasonably been misled to believe unanimity was required as to mitigating circumstances. Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the trial court's instructions do not inform the jury as to a contrary standard for determining mitigating circumstances. The jury is left to speculate as to the correct standard. Under these circumstances, we conclude there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances. We hold failure of the trial court to provide the jury with a proper standard for determining mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (holding a death sentence should be vacated where there was a substantial probability reasonable jurors may have thought they could only consider those mitigating circumstances unanimously found to exist). Accordingly, we must reverse the death sentence and remand to the district court for a new capital sentencing hearing.

Thus, Mr. Scott gets a new sentencing hearing.

The court also found error in PIK Crim. 3d 56.00-C(3), or part of the "aggravating circumstances" instruction. PIK Crim. 3d 56.00-C(3) currently lists the aggravated circumstance: “the defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.” The court held, “PIK Crim. 3d 56.00-C(3) should be revised to specifically designate the crime of capital murder.”

Here is coverage from the Wichita Eagle.

Wednesday, May 14, 2008

Slow down, you move too fast . . .

Lawrence Chacon won in U.S. v. Valadez-Valadez, No. 06-2341 (10th Cir. May 12, 2008), reversing a federal conviction for transporting illegal aliens out of New Mexico. The Tenth Circuit held that driving ten m.p.h. below speed limit does not provide a sufficient basis for a traffic stop for impeding traffic:

The obvious candidate for the victim of Mr. Valadez-Valadez’s allegedly impeding traffic would be [Officer] Pepper himself. After all, he had driven behind Mr. Valadez-Valadez for several miles before another vehicle pulled up behind him and then had driven several more miles before stopping the pickup. But Pepper never asserted that he could not have passed Mr. Valadez-Valadez during this lengthy stretch, nor did he provide information showing that he could not have. On the contrary, he testified that oncoming traffic was light—all he could say was that he encountered at least three vehicles while following Mr. Valadez-Valadez. And even though there were “multiple blind curves” along the highway, he did not say that it lacked intervals where passing would have been proper, making it unnecessary for Mr. Valadez-Valadez to pull over. Indeed, Pepper testified that passing was permitted at the very location where he stopped Mr. Valadez-Valadez and that his concern was that the road about a mile ahead becomes a mountain pass where “there are not a whole lot of passing zones for a good distance.” This testimony, rather than
implying that there had been few passing zones on the road as he had been following Mr. Valadez-Valadez, suggests the contrary. Moreover, Pepper’s concern about the difficulty in passing on the stretch of road a mile ahead could not justify the stop of Mr. Valadez-Valadez. Mr. Valadez-Valadez may have pulled to the side of the road before the mountain pass to let others go by, or he may have driven the speed limit on the pass to avoid backing up traffic. Vehicles cannot be stopped on “reasonable suspicion” that the driver will commit a traffic infraction in the future.

Perhaps the vehicle behind Pepper was impeded in its travels. But the record does not support a finding that Mr. Valadez-Valadez was responsible. The driver of that vehicle may have lawfully been able to pass Pepper and then Mr. Valadez-Valadez. That the driver decided not to pass Pepper hardly shows that he could not have lawfully done so. It would be a brave driver who would pass a police vehicle on a road with infrequent speed-limit signs.

This sort of reminds me of the line of state cases dealing with "failure to maintain a lane," which Kansas officers seem to be relying on more frequently. But subjective statutes such as these provide a pretty tenuous basis for reasonable suspicion and are really subject to attack in close cases.

Here's a YouTube link in case you don't get the title of this entry.

Monday, May 12, 2008

Pattern Instruction for Cross-Racial Eyewitness Identifications

Below, you will find a model instruction on cross-racial eyewitness identifications that was proposed by the Criminal Justice Section of the American Bar Association’s Committee on Rules of Criminal Justice, Evidence, and Police Practices. In January, the committee adopted a resolution to encourage judges to give the following model jury instruction in cases where an eyewitness and the defendant are not the same race:

In this case, the defendant, _______________ (insert
name), is of a different race than ________________
(insert name of identifying witness), the witness
who has identified [him] [her]. You may consider, if you
think it is appropriate to do so, whether the fact that
the defendant is of a different race than the witness
has affected the accuracy of the witness’ original
perception or the accuracy of a later identification. You
should consider that in ordinary human experience,
some people may have greater difficulty in
accurately identifying members of a different race than they do
in identifying members of their own race.

You may also consider whether there are other
factors present in this case which overcome
any such difficulty of identification. [For example, you
may conclude that the witness had sufficient contacts
with members of the defendant’s race that
[he] [she] would not have greater difficulty in making a
reliable identification.]

The instruction is intended as a supplement for the instructions that are currently used for eyewitness identifications (like PIK Crim.3d 52.20). The committee noted that the instruction is needed most when “… little or no evidence has been presented corroborating the eyewitness identification, and the circumstances raise doubts about the reliability of the identification.” (Minutes of the ABA Criminal Justice Section’s Committeeon Rules of Criminal Procedure, Evidence, and Police Practices, held at Fordham University School of Law, New
York City, Jan. 4, 2008).

The model instruction was based on the bulk of research that shows that cross-racial identifications are not as reliable as same-race identifications. See Michael Salfino, Limits to the Lineup: Why We’re Twice as Likely to Misidentify a Face of Another Race, 40 Psych. Today 6, 30 (Nov./Dec. 2006). In creating the instruction, the committee combined ideas from different jurisdictions. See e.g., United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); People v. Palmer, 154 Cal. App. 3d 79 (Cal. Ct. App. 1984); State v. Long, 721 P.2d 483, 492 (Utah 1986); New Jersey v. Cromedy, 727 A.2d 457 (N.J. 1999); New Jersey Identification Instruction: In-Court and Out of Court Identification, New Jersey Model Criminal Jury Charges, 2002 WL 32976451 (Revised Oct. 1999)).

It seems like a trial judge would be more likely to give an instruction that has the endorsement of the ABA. If you are interested in other ideas regarding eyewitness identifications, check out the eyewitness id blog at

Thursday, May 08, 2008

They wouldn't go away!

Thanks (again) to Paige Nichols for tipping me off to this Tenth Circuit case. John T. Carlson, a federal public defender in Denver, won in U.S. v. Reeves, 07-8028 (10th Cir. May 7, 2008), reversing a Wyoming drug conviction based on an illegal seizure of Mr. Reeve's from his motel room:

The officers’ conduct outside Reeves’ motel room would lead a reasonable person to believe he was not free to ignore the officers. Although there is no evidence the officers gave Reeves a direct order to open his door, the officers’ actions were effectively a command to open the door. The record demonstrates that three officers pounded on Reeves’ door and window while yelling and loudly identifying themselves as police officers. They continued this conduct consistently for at least twenty minutes. This encounter began between 2:30 and 3:00 in the morning, a time which must be taken into consideration when analyzing the coerciveness of the encounter. A reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers’ implicit command to open the door. As a result, when Reeves answered his door he did so in response to a show of authority by the officers and he was seized inside his home.
Seems right. I know I wouldn't feel free to blow off officers in these circumstances! Here is coverage on

Welcome Carl!

I'm glad to announce that Carl Folsom, my colleague at the ADO, has agreed to join me as co-contributor to this blog. Carl came to the ADO after graduating from KU and the Kansas Defender Project. He is interested in focusing on potential new issues in this blog a little more. So look for his entries to relate articles/cases/ideas about potential new issues. So if you have any such ideas, let Carl know.

And of course, he will also just write about what ever interests him. Plus he's young and understands blogs and other technology (unlike people like me who actually remember typing a paper on a typewriter). So hopefully, he will help keep this blog looking/running well.

Welcome Carl!

Wednesday, May 07, 2008

Judicial vacancy in Shawnee County

Here is the news release seeking nominations for an upcoming vacancy on the Shawnee County District Court. Applications are due June 6, 2008, so get on it Shawnee County judicial wannabees! The vacancy will occur due to Judge Conklin's upcoming retirement.

[Update: Here is a Topeka Capital-Journal article reporting on the nine applicants for this position.]

Monday, May 05, 2008

Kansas Death Penalty Focus blog shuts down (for now)

Sad to see that Kansas Death Penalty Focus decided to call it a day for now. I certainly understand the reasoning, but was glad to have a Kansas blog out there sort of devoted to that area. I hope that they decide to re-focus sometime in the not too distant future.

Friday, May 02, 2008

Keep me up to date

You may have noticed an upsurge in verdict reports. Please keep me up to date if you get a good verdict or other litigation result (i.e. suppression order, dismissal, 1507 result, whatever). Let me know the case caption, county, and any funny/disturbing facts about the case and I will let everyone else that reads this blog (all five of you) know. (And if you have any written decisions or other documents, .pdf it and e-mail it to me and I can link to it in the blog entry). I think it is important to see success around the state by the people doing the hard work of defending their clients and the Constitution every day. At least I like reading about it!

Lesser on agg robbery

Mark Orr won a great verdict in State v. Gould, a Sedgwick County aggravated robbery prosecution. Client admitted theft, but denied robbery. Jury returns verdict of guilty of misdemeanor theft, given as lesser.

Thursday, May 01, 2008

Not guilty in Lawrence

Branden Bell won in State v. Ediger, getting an acquittal in a Douglas County aggravated battery prosecution. The jury took less than an hour to acquit after a day-long trial.

Jury hangs on main charge in Reno County

Here is a Hutchinson News article reporting that a jury hung on four drug charges, including possession with intent to sell within 1000 feet of a school, only convicting of one count of obstruction. It was State v. McCoy, a Reno County case. Janis Knox, from the public defender office was the defense attorney. Apparently, this trial was moved up several weeks with only a day's notice to the defense (due to proseuctor's speedy trial concerns). So, it is even a more remarkable result!