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.

Saturday, August 23, 2008

Uh guys . . . the report says negative

Here is a Hutch News article reporting that Judge McCarville dismissed a Reno County trafficking prosecution (on the prosecutor's motion) after noticing that the KBI report turned up negative for meth on the substance found in the jail cell. Judge McCarville noticed that fact during the preliminary hearing, even though neither attorney apparently did. I guess Judge McCarville can rightly claim to be a stickler for detail!

Tuesday, August 19, 2008

Free Immigration Law CLE

For those of you who don't read the Kansas Federal Defender blog (you should, btw), there will be a free immigration/criminal law CLE in KCMO on September 18, 2008. The list of speakers is quite impressive. Here is the information about the CLE and how to sign up. As Melody Evans puts it on the blog, "Every criminal defense attorney, investigator and paralegal should attend this. A primary goal is to teach us the immigration consequences of our advice and actions in criminal cases."

Monday, August 18, 2008

Flashing lights mean stop

Lydia Krebs won in State v. Mollett, No. 97,999 (Kan. App. Aug. 15, 2008)(unpublished), reversing a Sedgwick County burglary conviction and remanding for new trial. The COA majority concluded that by turning on lights, officers seized Mr. Mollett:
Relying on our Supreme Court's decisions in Morris and Greever, we find that Mollett's initial encounter with Sergeant Espinoza was not voluntary, but occurred under a show of authority. Pursuant to Morris and Greever, activation by Sergeant Espinoza of the emergency lights was a show of authority that would communicate to a reasonable person that there was an intent to intrude upon freedom of movement.
After determining that the Fourth Amendment was implicated, the majority considered whether reasonable suspicion justified the seizure:
Here, the district court identified very few facts to support its conclusion that reasonable suspicion of illegal activity justified Mollett's seizure: Mollett was parked in an alley in a high crime area at 1:22 a.m. We find these facts insufficient to create reasonable suspicion of illegal activity. That is because, although a location's characteristics are relevant as a factor to use in determining whether there was or was not reasonable suspicion, both the United States Supreme Court and our own court have held that the mere presence of an individual in a high crime area, in and of itself, is insufficient to create reasonable suspicion of illegal activity.
The majority also rejected a claim of inevitable discovery and, therefore, ordered suppression of the evidence obtained during the illegal seizure.

[Update: the state filed a PR on September 15, 2008].

[Further update: the KSC denied the state's PR and the mandate issued on January 23, 2009.]

Thursday, August 14, 2008

Acquittal on agg battery

Here is a Hutch News article reporting that Sam Kepfield won an acquittal in a Reno County aggravated battery prosecution. The jury convicted of theft, but apparently didn't find the state's case persuasive on the person felony charged.

Not guilty in ten minutes

Kip Elliot won an acquittal last week in State v. Sanders, ending a Shawnee County drug and trafficking prosecution. Kip said the jury was out about ten minutes. Short and sweet.

Haven't heard much about verdicts lately from the field. Keep us up to date so we can keep everyone else up to date!

Wednesday, August 13, 2008

If you complete it, it's not an attempt

Carl Folsom won in State v. Gonzales, No. 97,572 (Kan. App. Aug. 8, 2008), reversing a Finney County attempted aggravated sexual battery conviction. The COA agreed that the record contained no evidence that the crime was not completed, which is an element of attempt. Judge Leben explaining that while there was ample evidence to support a finding of a completed crime, the state charged the wrong offense and was stuck with that decision:
I recognize that the result of our decision may seem unjust. The jury concluded that Gonzales had done an intentional act against A.C. with the intent to arouse sexual desires while overcoming her resistance by force or fear. Yet Gonzales' conviction must be reversed, and he cannot be restried for the crime that fits the evidence--aggravated sexual battery. Becausse of the Doube Jeopardy Clause of the United States Constitution, a person may not be tried for a greater offense after an initial trial for a lesser crime. See Brown v. Ohio, 432 U.S. 161, 165-69 (1977).

But the result is due to the charging decision that the State made. It charged Gonzales only with an attempt offense. The prosecutor apperas to have recognized at preliminary hearing the possibility that the evidence showed an actual touching. When the district court declined to amend the charge based on the evidence presented at preliminary hearing, the State still had the option to dismiss the case altogether and refile it with the correct charge. The only penalty at that point would have been that a new preliminary hearing woudl have been required. Instead, the State proceeded to trial on a charge that did not match the evidence. Double jeopardy no bars any retrial, and we cannot uphold a conviction that is not supported by the evidence.
Nice to see the COA hold the state to its charging decision.

[Update: the state filed a PR on September 8, 2008].

[Further update: the KSC denied the state's PR and the mandate issued on February 13, 2009.]

Thursday, August 07, 2008

Nice article about DNA testing

Here is a Lawrence Journal-World article reporting on a case where the KU Defender Project in conjunction with the Innocence Project, is getting some DNA testing in a decades-old rape case.

[Update: here is another article reporting on the results of the testing, affirming the conviction. Still a win.]

Wednesday, August 06, 2008

Judicial election results

Here is a Kansas City Star article reporting that incumbent district judge Muriel Harris lost her primary race to assistant district attorney Constance Alvey.

Here is a Wichita Eagle article reporting that incumbent district judge Rebecca Pilshaw narrowly won her primary contest against Ross Alexander. Pilshaw will face J. Patrick Walters in the general election. There were several other contested judicial races in Sedgwick County. Former deputy PD and former district judge Carol Bacon won her primary election and will face current state senator Phil Journey in the general election. Current deputy PD Jama Mitchell was unopposed in her primary; she will face Jeff Syrios in the general election.

According to the Secretary of State's unofficial results, Gary House defeated incumbent district judge Russell Canaday in the district covering Chautauqua and Montgomery Counties. House will face Robert Lattin in the general election.

Prosecutorial election results

Several sitting prosecutors lost primary elections last night. Here is a Topeka Capital-Journal article reporting on a high profile race here in Shawnee County, where Eric Rucker easily defeated incumbent D.A. Robert Hecht. Rucker will face Chad Taylor in the general election.

And here is an Olathe News article reporting that Steve Howe defeated incumbent Johnson County D.A. Phill Kline. Howe will face Rick Guinn in the general election.

A couple of county attorneys lost their positions. Here is a McPherson Sentinel article reporting that David Page defeated long-time incumbent McPherson County C.A. Ty Kaufman.

And here is a Hutch News article reporting that Terry Malone defeated incumbent Ford County C.A. John Sauer. Sauer will face Larry Daniels in the general election.

Here is a Lawrence Journal-World article reporting that Caleb Stegall defeated incumbent Jefferson County C.A. Mike Hayes.

In defender-related news, according to the Hutch News, Garden City PD Lynn Koehn won his primary race for Haskell County Attorney.

Let me know if you know of other interesting results from yesterday's primaries.

Tuesday, August 05, 2008

You can pick your judge . . .

In a couple of related articles, What the Judge Ate For Breakfast is soliciting comments on views about elected vs. selected judges here. And this is a Hutch News/AP article reporting that the Commission on Judicial Performance will be issuing its report on appellate and district judges subject to retention elections this cycle on August 29. This is the first such report, so it will be interesting to see the results.

Monday, August 04, 2008

Applicants for district judge in Johnson County

Here is the court's press release naming the sixteen applicants for district judge in Johnson County. The nominating commission gets to work on these applicants on August 11, 2008, so if you have comments, be sure to submit them asap. Here is coverage of the nomination process in the Olathe News.

Saturday, August 02, 2008

But you didn't charge the big screen!

Washburn student intern Julia Mowers and I won in State v. Wilson, No. 98,154 (Kan. App. Aug. 1, 2008) (unpublished), getting a new trial in a Wyandotte County felony theft prosecution. Basically, client was charged with stealing several items from a house, including two small TVs. There was also a big screen TV that had been moved in the house, but not removed. The jury acquitted Mr. Wilson of buglary, but convicted of felony theft.

The charging document was quite specific with regard to the items alleged to have been taken, two small TVs and several other miscellaneous items. But at trial, several witnesses were questioned about the value of items taken and included the big screen in their (ambiguous) valuations. And the elements instruction told the jury to consider the value of three TVs. Although the COA held that sufficient evidence supported a finding that the value of stolen property was more than $1,000, it agreed that the expansion of the charging document was improper and could easily have led to a different verdict.

[Update: Mr. Wilson filed a PR from the part of the decision he lost on September 2, 2008.]

[Further update: the KSC denied Mr. Wilson's PR and the mandate issued on January 23, 2009.]