Wednesday, January 30, 2008

Miranda suppression affirmed

Michael Robinson won in State v. Allison, No. 98,341 (Kan. App. Jan. 18, 2008)(unpublished), affirming Judge Anderson's suppression of statements in a Harvey County drug prosecution. The COA noted that the only issue was whether questioning of persons detained after a search was "interrogation" for Miranda purposes:
Applying [Rhode Island v. Innis, 446 U.S. 291 (1980)], to the facts here, we conclude that the officers should have known that asking Allison if she lived at the house they had just searched could very likely evoke an incriminating response. We agree with Allison that this is not a situation where law officers merely issued a citation and needed personal information for the paperwork. Nor is this a situation where booking officers at a detention facility sought personal information for administrative purposes from an individual being booked. Under other facts, it may well be that questions about where one lives are permissible without first giving the Miranda warnings. But under the circumstances here, the information sought by the questions “where do you live” and “do you live here” was directly related to the crime the officers were investigating. The officers had just found drugs in plain view in the same room where they found Allison. They had just found paraphernalia in other parts of the house. In asking Allison if she lived there, the officers were focusing on her as a suspect in a drug investigation. Certainly the fact she lived there made the case stronger against her for possession of drugs and other contraband than if she lived elsewhere.

The officers' questions were likely to and did, in fact, elicit an incriminating statement from Allison. Because the officers did not first give the warnings required in Miranda, those statements are not admissible. The district court properly ordered them
The COA leaves open the possibility, as it must, that most routine questions by law enforcement officers are not "interrogation" for purposes of Miranda. But this type of situation--right after a search--is different.

[Update: the state did not file a PR and the mandate issued on February 21, 2008].

Tuesday, January 29, 2008

Probationers still have Fourth Amendment rights

Theresa Barr (former ADO) won in State v. Montgomery, No. 97,340 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Riley County possession of mephedrine conviction. The COA summarized the facts as follows:
Montgomery agreed to enter a detoxification program as part of her probation program with Riley County Community Corrections (RCCC). When probation officers arrived to transport her, they directed her to the back of their car and told her they were going to search her before she could get in. As one officer stood on either side of Montgomery, she was asked if there was anything on her or in her purse that was going to poke the officers or hurt them. She was also asked if wshe had anything she should not have.

When Montgomery indicated that she did have something that could poke the officers, they inquired further. Montgomery explained that there was a syringe in yher purse. An officer then opened Montgomery's purse and Montgomery directed her to the zipper compartment where a syringe was found. when officers asked her what was in the syringe, she revealed that it contained cocaine or Demerol.

The COA agreed with the state that the interaction in this case was a voluntary encounter. But the COA went on to find that the consent to search the purse was not voluntary:
The State argues that because Montgomery did not indicate she was unhappy with the search and because she did not tell the officers not to look in her purse, she consented to the search. This assertion is contrary to established Kansas law which requires consent to be "unequivocal and specific" and "freely and intelligently" given. The record shows that Montgomery never told the officers they could search her or her purse. Instead, she was told she was going to be searched before she could be transported. We cannot agree that Montgomery voluntarily consented.

Well, it seems clearly correct to me that failure to object cannot establish affirmative consent. I'm glad the COA agreed.

The COA also rejected the state's claim that because Ms. Montgomery was on probation, any search was reasonable under the "special needs" doctrine, particularly as it relates to probationers and parolees. The COA reviewed some recent SCOTUS cases and a Tenth Circuit case (previously blogged about here) that were related, but distinguished them on several grounds:
In [United States v. Knights, 534 U.S. 112 (2001) and Samson v. California, 126 S.Ct. 2193 (2006)], the Court emphasized that a balancing test was necessary to determine the overall reasonableness of a warrantless search of a probationer or parolee. In both cases, the Court gave significant weight to the probationer's or parolee's knowledge of a special search condition. that knowledge, not the mere fact that the defendant was on probation or parole, is what diminished each defendant's expectation of privacy and, therefore, tipped the scale toward finding the searches were reasonable.

In the present case, Montgomery was not subject to any special search conditions as a part of her probation. And while the need for officer safety is a legitimate government interest, it does not outweigh the privacy interests of a private citizen who has no knowledge that she is subject to search at any time and who has never signed a waiver giving up her Fourth Amendment rights. Further, the officers admitted that they could address their safety concerns by allowing Montgomery to place her belongings in the trunk before being transported.
Because the warrantless search was not justified by any exception, the drugs are suppressed and the conviction reversed.

[Update: the state did not file a PR and the mandate issued on February 28, 2008].

Monday, January 28, 2008

Improperly extended stop

Washburn student intern Hansel Cordeiro and I won in State v. Fitzpatrick, No. 96,702 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Johnson County drug conviction. There were lots of claims regarding several stages of a car stop and resulting search of the back-seat passenger. The COA found that the initial stop was proper and that a fruitless intitial pat-down search of the back-seat passenger was okay, but that further detention and search was improper:
Fitzpatrick should not have been subjected to any further questioning or search. Having concluded that nothing about the encounter justifiably raised the officers' reasonable suspicion of criminal activity or necessitated further detention of Fitzpatrick for questioning, the officers' detention of Fitzpatrick after the auto search and the pat-down search of this person was an unreasonable extension of the detention and the evidence recovered thereafter should have been suppressed unless Fitzpatrick's later consent to search his pockets purged the taint of his unlawful detention. Here, the illegal detention and the request for consent were in close temporal proximity and did not purge the illegality.
I thought we had a pretty good claim on the stop itself. (And we have pretty good issues on the scope of consent as well). I guess you take a win where you can get it.

[Update: the state filed a PR on February 25, 2008.]

[Further update: the KSC denied the PR and the mandate issued on January 11, 2010.]

Thursday, January 24, 2008

Manufacture sentencing win

Washburn student intern Melissa Schoen and I won a partial victory in State v. Spangler, No. 96,326 (Kan. App. Dec. 21, 2007). reversing one conspiracy count and getting a remand for resentencing on the manufacture count. This sentencing issue involves a fairly new argument (post-McAdam) regarding manufacture sentencing.

You may remember that, in State v. McAdam, the KSC held that manufacture under K.S.A. 65-4159 was identical to compounding under K.S.A. 65-4161 and K.S.A. 65-4161 usually has a lower sentence (SL1 vs SL3). Under the identical offense doctrine, a defendant is entitled to the lower sentence. So we have seen several hundred defendants across the state either get lower sentences or get resentenced to lower sentences.

McAdam was decided on January 30, 2004. The 2004 Legislature passed a "McAdam-fix" removing compounding from K.S.A. 65-4161 and therefore eliminating the McAdam issue for persons convicted of manufacture occurring on or after May 20, 2004 (the effective date of the act).

Since the McAdam-fix, we have been raising another identical offense doctrine issue in manufacture cases. K.S.A. 65-4159 makes it illegal (and a SL1 drug offense) to manufacture a controlled substance. K.S.A. 65-4152 makes it illegal (and a SL4 drug offense) to use paraphernalia to manufacture a controlled substance. Seems identical. That's how a person manufactures methamphetamine--they use paraphernalia. Not very many people have been prosecuted for "use" of paraphernalia under K.S.A. 65-4152, but it is a part of that statutory definition. So we have argued that the offenses are identical and defendants should receive the lesser sentence.

We had not had much success with this argument until fairly recently. When the argument (or a version of it) was brought before the KSC in State v. Fanning, the KSC noted that Fanning was convicted of attempted manufacture and that the record disclosed no actual evidence of use of paraphernalia in that case. As a result, the KSC rejected application of the identical offense doctrine in that case. But the implication was that if there had been evidence of use of paraphernalia, it would have constituted an identical offense situation. And we certainly had plenty of post-McAdam cases where we had plenty of evidence of use of paraphernalia (i.e. every manufacture case).

In 2007, we had a couple of unpublished cases where the COA, following Fanning, held that the record in a completed manufacture case established use of paraphernalia, remanding for a SL4 drug sentence. Some of those cases are final and some are not.

The Spangler decision is the first published case to order resentencing applying the identical offense doctrine. The state did not file a PR and the mandate issued today. Therefore, it is now good law, at least for right now.

There is a pending KSC case that may decide this issue one way or the other. I argued the case in October 2007 and I am currently waiting for a decision. I would guess we will get the decision pretty soon (maybe as early as next Friday). That case may confirm the Spangler rationale or it may reverse it or it may refine it. All we can do is wait to see. In any event, right now the law for manufacture cases is Spangler. If you have sentencing in a case of completed manufacture today, you can cite Spangler for the proposition that your client should receive a SL4 sentence.

Because of the unsettled state of the law, it is important to file a notice of appeal in any manufacture-related case sentenced using SL1. If McAdam taught me anything, it's that the only way to take advantage of the identical offense doctrine, it's by direct appeal.

In any case, this is good news for Ms. Spangler. She was originally given a 154-month sentence for two SL1 and two SL4 drug offenses. It looks to me like the worst case scenario for her now is about 32 months, which she has served.

Monday, January 21, 2008

New AG

Here is the Governor's press release announcing the appointment of Judge Stephen Six from Lawrence to fill the upcoming Attorney General vacancy. Of course, there has been lots of coverage of this story from all over the state: here, here, and here is the Topeka Capital-Journal coverage; here, and here is local coverage from the Lawrence Journal-World; here and here is coverage from the Wichita Eagle.

Six doesn't really have a lot of experience in the criminal arena, but has a very professional reputation in general. So I guess we just have to wait to see what it means for the criminal division.

Of course, Six's resignation also means that there will be an upcoming vacancy on the bench in Douglas County. So dust off those resumes Lawrence-ites! (Or is it Lawrence-inians?) Here is the press release regarding the vacancy.

[Update: here is the Lawrence Journal-World article reporting on Six' January 31 swearing-in.]

Sunday, January 20, 2008

Recent SCOTUS filing

Rachel Pickering and I recently filed a petition for a writ of certiorari in State v. Birth, a COA case holding that Confrontation can be waived by an attorney's "opening the door" to introduction of out-of-court statements. The SCOTUS just took a case on "forfeiture by wrong doing," (here is the Confrontation Blog coverage) which may give us some insight into the interplay between the rules of evidence/procedure and the right to Confrontation.

[Update: the SCOTUS denied the petition on February 19, 2008].

Saturday, January 19, 2008

Lesser should have been given

Rick Kittel won in State v. Alberty, No. 96,957 (Kan. App. Dec. 21, 2007)(unpublished), obtaining a new trial in a Wyandotte County aggravated battery prosecution. The COA noted the confusing nature of the charging history as a contributor to the error:

There was some confusion surrounding the underlying aggravated battery charge in this case. Alberty was originally charged with intentionally causing great bodily harm to Welchen, a severity level 4 felony. At the preliminary hearing, the State sought to amend the charge to recklessly causing great bodily harm, which it stated was a severity level 7 felony. Nevertheless, the State misspoke as to the severity level. Under K.S.A. 21-3414(b), recklessly causing great bodily harm is a severity level 5 offense. After realizing the mistake, the State further amended the charge downward to a severity level 8 offense, which is recklessly causing bodily harm in a manner whereby great bodily harm could occur.

As a result, although Welchen did suffer great bodily harm when he sustained a broken femur, the jury was only required to find that he suffered bodily harm, which is the same for aggravated or simple battery. The difference lies only in the manner in which the bodily harm is inflicted. K.S.A.2006 Supp. 21-3412(1) defines a battery that results in bodily harm. Both intentional and reckless conduct is covered under this subsection. The State charged Alberty under K.S.A. 21-3414 with recklessly causing bodily harm in a manner whereby great bodily harm, disfigurement, or death can occur.

There was testimony both before and after the request for the lesser included instruction that Welchen and Alberty were mutually struggling on the porch when they fell off, ending in Welchen's injuries. Although, as noted above, there was sufficient evidence to support the guilty verdict regarding the manner in which Welchen's injury was inflicted, it is possible that the jury could have found that the struggle on the porch was not a circumstance under which great bodily harm could have occurred or been forseeable. Accordingly, the trial court should have granted Alberty's request for the lesser included instruction for simple battery. We remand for a new trial.

These aggravted battery cases can be quite confusing. One of the things I never understand is the trial court, who acknowledged that this was a "close case," but decided to not give the lesser. If it is a close case, why not give it? What's the harm? At worst, the jury comes back with the lesser. Is there any legitimate reason that judges are so afraid of giving juries a full range of options? Any thoughts?

And we were recently questioning in the ADO about how a jury is supposed to rationally discern a circumstance "under which great bodily harm could have occurred" compared with any other. One could argue that great bodily harm could occur in almost any battery. It is really a element of a crime that is based, almost by definition, on speculation. Maybe there is a vagueness-type argument in such cases.

[Update: neither party filed a PR and the mandate issued on January 24, 2008].

Insufficient evidence of constructive possession

Charles O'Hara won in State v. Navarro, No. 97,418 (Kan. App. Dec, 21, 2007)(unpublished), reversing a Seward County possession with intent to sell conviction on sufficiency grounds:
Viewing the evidence in the light most favorable to the State, it seems likely that Navarro had some idea of what was going on, as he legally owned the property; a scale was found in plain view in the shop; it was obviously a large scale drug operation based on the amount of marijuana found; the only driveway to the shop went by Navarro's residence; the shop was nearby his residence; all of the lights were on and the door was open to the shop in the middle of the night; and there was a large amount of cash in his bedroom.

However, as Navarro argues, very few incriminating factors link him personally to the drugs. No evidence was presented at trial regarding previous drug use or sales by Navarro. Based on the testimony presented at trial, it appears that his brother's trailer was actually closer to the shop than Navarro's brick house and his daughter's trailer was likewise nearby. No evidence was presented that Navarro owned any of the items inside of the shop where the marijuana was found, i.e., the lawnmower, bicycles, guns, scale, baggies, and several adults and children lived on the property. The bricks of marijuana were not found in plain view as they were wrapped in paper and kept in feed bags inside of the barrels in the shop. Officer Dixon testified that he had to open the feed bag from one barrel and remove several tarps from the other barrel in order to see the marijuana. Finally, while having a large amount of cash is certainly suspicious behavior relating to narcotics sales, the vast bulk of the cash was found in a dresser with women's clothing and contained a withdrawal slip in Sally Navarro's name and a checkbook from Sally and Victor Navarro's bar. The manner in which the cash was found arguably leads to a stronger inference that it belonged to Sally Navarro.

In conclusion, the State failed to put on sufficient evidence of incriminating factors linking Navarro personally to the marijuana found on the property so as to find he constructively possessed the marijuana. As such, his conviction for possession of marijuana with intent to sell and failure to affix a drug tax stamp is reversed.

Nice job. It's good to see the COA hold fast to the rule that there has to be real evidence of possession, not just speculation on the part of the prosecution.

[Update: the state did not file a PR and the mandate issue on January 24, 2008].

Bad search warrant

Carl F.A. Maughn won in State v. Baumfalk, No. 96,893 (Kan. App. Dec. 21, 2007)(unpublished), reversing a Sherman County drug conviction. The COA held that the evidence presented to the distirct court was clearly insufficient to constitute probable cause:
First, under the district court's theory, a nexus between the illegal activities and the suspect's residence would be established in every case so long as the suspect frequented and used his residence. Thus, the district court's conclusion that this fact could serve as a nexus was in error. Second, without additional evidence to substantiate the detective's suspicion that contraband would be found in Baumfalk's residence, the affidavit failed to provide probable cause to issue a search warrant for Baumfalk's residence. Accordingly, under these circumstances, the magistrate did not have a substantial basis to issue the search warrant for Baumfalk's residence. The district court improperly held that the search warrant for Baumfalk's residence was valid.
And the COA went on to reject any possible application of the good faith exception because the state failed to assert such an exception on appeal:
In anticipation of the State's argument on appeal, Baumfalk further asserts that the Leon good faith exception did not apply. The State, however, did not include such an argument in its brief. The Leon good faith exception, as described in United States v. Leon, 468 U.S. 897 (1984), “applies when an affidavit does not supply a substantial basis for the determination of probable cause but does provide some indicia of probable cause sufficient to render official reliance reasonable.”

However, the State's failure to make a Leon argument severely affects this court's ability to entertain whether the Leon good faith exception applies to the facts in this case. The State bears the burden of proof for a suppression motion and, thus, must prove the lawfulness of the search and seizure. Furthermore, the State's failure to pursue a Leon argument on appeal constitutes a waiver of such argument. State v. Hicks, 282 Kan. 599, 617-18, 147 P.3d 1076 (2006); State v. Landis, 37 Kan. App. 2d 409, 423, 156 P.3d 675 (2007)(ruling that the State's failure to make an argument regarding the application of the Leon good faith exception on appeal is deemed waived). Consequently, although it is probable that the Leon good faith exception would have applied to save the evidence seized under the defective search warrant, absent the State's allegation for its application, this court is forced to deem this matter waived.
It's nice to see the COA hold the state to its obligation to brief an affirmative-type defense on appeal. We often see an appellate court find something harmless, even though the state never argued that it was harmless. There are consequences when defense attorneys fail to brief (or fail to adequately brief) an issue and there should be consequences for the state as well.

BTW, there is an argument that, pursuant to Kansas statute, the good-faith exception does not apply in such situations.

[Update: the state filed a PR on January 17, 2008].

[Further update: the KSC denied the state's petition and the mandate issued on May 30, 2008.]

Wednesday, January 16, 2008

March 2008 KSC docket

Here are the criminal cases on the KSC docket for March 24-27, 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.

March 24-Monday-a.m.

State v. Shaun Fitzgerald, No. 95,812 (Sedgwick)
Direct appeal (petition for review); Possession with intent to sell
Kurt P. Kerns
[Reversed; Beier; Sept. 12, 2008]

  1. Improper stop and search
State v. Kenneth Skolaut, No. 97,401 (Sedgwick)
State appeal (question reserved) (petition for review)
Jean K. Gilles Phillips
[Sustained in part, rev'd in part; Nuss; May 16, 2008]

  1. Probation revocation--whether court can consider acts occurring after natural expiration date of probation.
March 24, 2008-Monday-p.m.

State. v. Matthew Murdock, No. 95,365 (Cloud)
Direct appeal (petition for review); Aggravated battery
Rick A. Kittel
[Affirmed; Davis; July 18, 2008]

  1. Failure to grant motion for acquittal
  2. Ineffective assistance of counsel
  3. Improper response to jury question
State v. Robert Ehrlich, No. 96,797 (Russell)
Direct appeal (petition for review)
Patrick H. Dunn
[Affirmed; Rosen; Aug. 8, 2008]

  1. BIDS fee
March 25, 2008-Tuesday-a.m.

State v. Kelly Stowell, No. 96,091 (Reno)
Direct appeal (petition for review); Possession with intent to sell
Michelle A. Davis
[Reversed and remanded; Nuss; May 16, 2008]

  1. Failure to suppress evidence
  2. Sufficiency of evidence for no tax stamp
  3. Failure to suppress statements
State v. Clifton Schow, No. 96,820 (Johnson)
Motion to withdraw plea (petiton for review); Criminal threat
Reid T. Nelson
[Reversed and remanded; Johnson; Dec. 12, 2008]

  1. Failure to allow plea withdrawal where defendant mistaken about presumptive disposition
State v. Shawn Johnson, No. 96,526 (Reno)
State appeal (petition for review)
Lane E. Williams
[Affirmed; Johnson; Oct. 30, 2009]

1. Failure to hold new competency hearing

March 25, 2008-Tuesday-p.m.

State v. Gregory Walls, 98,260 (Shawnee)
Motion to correct illegal sentence; First degree murder
B. Joyce Yeager
[Affirmed; per curiam; Dec. 5, 2008]
  1. Failure to appoint counsel for motion hearing
State v. Anthony Jefferson, No. 95,049 (Reno)
Direct appeal (petition for review); Aggravated battery
Shawn E. Minihan
[Affirmed; Beier; Oct. 18, 2008]

  1. Improper finding that witness was unavailable
March 26, 2008-Wednesday-a.m.

State v. Michael Laturner, No. 96,086 (Cherokee)
Direct appeal (petition for review); Possession
Rachel L. Pickering
[Rvd/Rmd; Luckert; Oct. 9, 2009]

  1. Confrontation Clause violation--admission of lab results
State v. Karin Morton, No. 97,848 (Franklin)
State appeal (petition for review); Making false information
Pantaleon Florez, Jr.
[Affirmed; Rosen; July 3, 2008]
[Cert petition denied Jan. 12, 2009]

  1. Suppression of statements
State v. William King, No. 95,088 (Crawford)
Direct appeal (petition for review); Rape
Korey A. Kaul
[Affirmed; Davis; March 27, 2009]

  1. Prosecutorial misconduct (improper questions and comments)
  2. Improper restitution award without considering ability to pay
March 26, 2008-Wednesday-p.m.

State v. Anotone Scoville, No. 96,405 (Dickinson)
Direct appeal (petition for review); Manufacture
Michelle A. Davis
[Reversed; Luckert; Aug. 1, 2008]

  1. Whether defendant entitled to out-of-time direct appeal
  2. Whether defendant entitled to resentencing

Where's the emergency?

Steven Staker of the Junction City Public Defender Office won in State v. Jeffery, No. 97,251 (Kan. App. Jan. 11, 2008), reversing a Geary County drug conviction. The prosecution had claimed that the search in this case was a valid exercise of the emergency aid doctrine exception. The COA had little difficulty with that claim:
Junction City police officers were dispatched to Phillip Jeffery's apartment. The officers had been told that the resident there had cut his wrists and attempted to hang himself in a tree. When officers knocked on the door, Jeffery initially wouldn't open it, which left officers rightly concerned about his welfare if they did nothing to help him. Jeffery did open the door with the security chain attached at least once while the officers continued to knock and spoke with a neighbor. When Jeffery finally opened the door without the security chain attached, officers rushed him, ordered him to lie on the floor, and handcuffed him.

This is the point at which the plot thickens for the purposes of this appeal. Officers then searched the full apartment in walk-through fashion; they said that they were looking either for any person who might be injured or any weapons that Jeffery might use to hurt himself or others. But they had already taken Jeffery into their custody, and an officer testified at trial that they planned to take Jeffery from his home for a mental-health evaluation. The officers had no information suggesting that anyone else was in the home, and there was no immediate danger that the handcuffed Jeffery would use anything found elsewhere in the apartment to hurt himself. The Fourth Amendment to the United States Constitution protects us from a warrantless search of our home except in limited circumstances. As we will soon discuss, none of the exceptions are applicable here because there was no reason to go elsewhere in the apartment to address the situation that the officers confronted. We thus conclude that the marijuana and drug paraphernalia found during the search of Jeffery's apartment cannot be used against him.

It may be a little thing, but I appreciate Judge Leben noting that the "Fourth Amendment . . . protects us" not just criminals or drug dealers, but every one of us.

Here is the coverage on

[Update: the state did not file a PR and the mandate issued on February 14, 2008].

Firearm conviction reversed

Charles Dedmon (former-ADO) and David Phillips of the Kansas City Federal Public Defender Office won in U.S. v. Hill, No. 07-3034 (10th Cir. January 16, 2008), reversing a Kansas firearm conviction. The question was whether the defendant was ineligible to possess a firearm because of a previous Kansas conviction. After discussing the Kansas Sentencing Guidelines in the aftermath of Apprendi and Gould, the Tenth Circuit concluded that a defendant with Mr. Hill's criminal history could not have been sentenced to more than 11-months and, therefore the previous conviction did not make Mr. Hill ineligible to carry a firearm:
Because it is no longer possible for a defendant to be sentenced to a term greater than the presumptive sentence based on an aggravating factor unless that factor is found beyond a reasonable doubt by a jury, Hill’s maximum sentence was eleven months. Had aggravating factors existed, the prosecution was required to make a motion to seek an upward departure under § 21-4718(b) and any aggravating factor had to be found beyond a reasonable doubt.4 The prosecution did not move for an upward departure and without that predicate step, Hill’s sentence could not be enhanced beyond his presumptive sentence range.

A nice discussion of the Guidelines and the impact of the Apprendi line of cases.

Thanks to David Freund for the tip.

Here is coverage on Federal Kansas Defender with a lot more practical implications.

Monday, January 14, 2008

New COA judge

Here is the Governor's press release announcing her appointment of Melissa Taylor Standridge to the newly-created thirteenth position on the COA. Here is the Lawrence Journal-World article reporting on the appointment.

Thursday, January 10, 2008

Hard-fifty cert petition denied, again.

The SCOTUS denied Sarah Johnson's cert petition in Johnson v. Kansas, which sought, in part, to apply Apprendi to minimum sentences (i.e. reverse Harris v. U.S., 536 U.S. 545 (2002)). Here is the SCOTUS order. The SCOTUS had ordered the state to respond and had set the matter over for a second conference date, but denied cert on Monday. This is a recurring issue. A little over a year ago, the SCOTUS did the exact same thing--show enough interest to require a response by the state, but then deny the petition. (Here is my previous blog entry, which you will see is quite similar). Some commentators think there will be some push eventually to get the SCOTUS to take a mandatory minimum sentence case. So keep raising that in every hard-fifty case.

Twenty minutes to acquittal

Here is a Hutch News article reporting that Greg Bell won an acquittal in a Reno County aggravated assault prosecution. Greg argued that the prosecution provided no physical corroborating evidence, resulting in a "he-said, she-said" situation, which does not prove a case beyond a reasonable doubt. The jury apparently agreed.