Friday, February 29, 2008

Improper reference to homosexuality is prosecutorial misconduct

Rachel Pickering won in State v. Blomquist, No. 95,995 (Kan. App. Feb. 29, 2008), getting a new trial in a Anderson County aggravated indecent liberties/criminal sodomy prosecution involving 78-counts. The COA reversed for cumulative error, but primarily focused on improper argument regarding Mr. Bloomquist's sexual orientation:

Beginning with his opening statement to the jury, continuing through the presentation of evidence, and culminating in the closing arguments, the prosecutor framed the State's case around the allegation that William was a homosexual. . . . The State does not minimize its trial strategy, but asserts that "in a case in which a defendant is charged with aggravated indecent liberties with a child victim who is of the same sex as the defendant, the [S]tate is required to prove, beyond a reasonable doubt, that the defendant is a homosexual."

. . . .

The obvious unstated premise of the State's argument is that lewd fondling or touching between an adult and a 12-year-old child of the same sex is a "homosexual act." Linguistically, a "homosexual act" might be defined as a sexual act between any two persons of the same sex; however, that is not how the State uses the term. The State maintains that if William took actions to satisfy sexual desires for adult males, and did not take actions indicating sexual desires for adult females, then any lewd fondling or touching of B.D. would be more likely to satisfy his sexual desires. The State, in other words, assumes that a sexual desire for children is among those desires which define a homosexual orientation.

The COA reviewed cases from other states and easily concluded that the state's logic was seriously flawed:

We conclude, therefore, that it was unreasonable for the State to assume that a sexual desire for children is among those desires which define a homosexual orientation.

Nothing in this record suggests that William's adult relationships with Brandon, Carla, or any woman he may have dated were evidence of the charges against him. Given the "prejudicial character" of homosexuality, the prosecutor's conduct in this case was analogous to prosecutorial appeals to passion, prejudice, and fear which have been so long rejected by Kansas courts. Having carefully considered the record, we hold the prosecutor's conduct was improper.

Turning to the plain error analysis, we are convinced the prosecutor's misconduct was gross and flagrant. The references to homosexuality were not an "isolated statement." As detailed earlier, the prosecutor's opening statement, questions of witnesses, presentation of evidence, and closing argument were focused on proof of William's sexual orientation. Given the prejudicial nature of homosexuality, we conclude William has shown the evidence at issue and the prosecutor's comments upon it prejudiced the jury against him.

The COA reviewed the record and held that the evidence was not overwhelming and that, therefore, reversal was required. It bolstered the reversal by its holding that other opinion testimony was probably inadmissible and, in any case, did not have a sufficient foundation.

Sort of hard to believe this sort of trial goes on today, but then again maybe not.

[Update: the state did not file a PR and the mandate issued on April 3, 2008].

Improper restriction on cross-exam violates Confrontation Clause

Reid Nelson from the Capital and Conflicts Appeals Office won in State v. Darrell Jackson, No. 94,578 (Kan. App. Feb. 29, 2008), obtaining a new trial in a Harvey County criminal sodomy/aggravated indecent liberties prosecution. During trial, the district court refused to allow the defense to cross-examine regarding the vicitim's sexual history. The COA held that the state's case made the prior history relevant and that the restriction on cross-examination violated the Sixth Amendment:

The State's case emphasized--from opening statement to closing argument--that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was "acting out, a lot more argumentative, a lot more disagreeable, . . . and really behaving badly." Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out "why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002"--that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been "real hateful to people."

In the context of this claim that Jackson's crimes caused A.C.'s behavior changes from 1999 until 2002, an allegation that she was abused by others in 2000 and 2001 is certainly relevant. Evidence is relevant if it has any logical tendency to prove a fact important to the case. K.S.A. 60-401(b). Evidence that similar sexual assaults had occurred during this time frame is surely relevant because the State's evidence and argument suggested Jackson's assaults had caused A.C.'s emotional trauma and bad behavior. The substantial allegations against Joseph and Travis are important pieces of evidence that provide alternative theories for A.C.'s emotional and behavioral problems.

. . . .

Once again, the State's response on relevance is to ask us to accept A.C.'s testimony as true. The State argues that both A.C. and her mother testified that A.C. was afraid to return because of Jackson and that neither of them testified that she was afraid of Joseph or Travis. But the district court did not allow her to be asked about Joseph and Travis at trial, and the prosecutor had evidence that she had claimed Joseph had threatened her life. Truth is determined in a trial by challenging evidence, not by presenting only one side. Relevance cannot be determined based on the assumption that A.C.'s claimed fear of Jackson is true when there is a plausible case to be made for a similar fear against others.

After determining the evidence was relevant, the COA reviewed federal and previous Kansas cases to conclude that the restriction violated the Confrontation Clause and was not harmless:
We have concluded that Jackson's convictions must be reversed because he was denied the constitutional right to confront the witnesses against him. We do not set aside a jury verdict lightly, nor do we lightly require that witnesses in an emotionally difficult case testify a second time. But Jackson was sentenced here to more than 20 years in prison on these convictions, and we also recognize that no one can--or should--be sent to prison in the United States unless he or she has received a fair trial in compliance with constitutional requirements.
It seems that Judge Leben understands that the Constitution is not a technicality.

[Update: the state did not file a PR and the mandate issued on April 3, 2008].

IAC finding affirmed

Linda Barnes-Pointer won in McHenry v. State, No. 97,202 (Kan. App. Feb. 29, 2008), affirming Judge Tuggle's grant of a K.S.A. 60-1507 motion and ordering a new trial in a Mitchell County rape/indecent liberties/sodomy case. The COA applied the same standard as it would to review of a denial of habeas relief--substantial competent evidence--and held that Judge Tuggle's findings regarding defense counsel's complete failure to investigate the state's witnesses or witnesses named by Mr. McHenry constituted deficient performance. And where the record contained no physical evidence, the COA held that the defecient performance was prejudicial.

Nice to again see the COA hold the state to the same standard as defendants in its appeal.

[Update: the state did not file a PR and the mandate issued on April 3, 2008].

[Update from the comments: Judge Cudney agreed that the State violated the statutory speedy trial stattue on June 18, 2008. Mr. McHenry's case has now been dismissed and he is discharged from further liability.]

[Further update: the state appealed the dismissal, but voluntarily dismissed that appeal on January 29, 2009. So the dismissal should be final!]

Misdemeanor verdict in manslaughter prosecution

Here is a Topeka Capital-Journal article reporting that Michael Francis won a vehicular homicide verdict in a Shawnee County DUI-Manslaughter prosecution.

Monday, February 25, 2008

PD re-elected to district nominating commission

Here is the court's press release announcing that ADO Janine Cox won re-election to the Douglas County (Seventh Judicial District) Judicial Nominating Commission. This will be her second term. My only regret is that I live in the wrong county and therefore couldn't vote for her!

Saturday, February 23, 2008

Commission recommends Pilshaw's censure

Here is the Wichita Eagle article reporting that the Commission on Judicial Qualifiactions has recommended public censure for Judge Pilshaw for misconduct stemming from a mur$der case. The article includes a link to a copy of the Commission's findings and conclusions. As the article notes, this is Judge Pilshaw's third disciplinary matter (of record).

Here is previous blog coverage of Judge Pilshaw's disciplinary matters.

Friday, February 22, 2008

Evidence of bias

Rick Kittel and KU Defender Project student Amy Hall won in State v. Scott, No. 96,879 (Kan. App. Feb. 22, 2008), gettting a new trial in an Atchison County prosecution for sale within 1000' of a school. Although the COA found sufficient evidence to support a conviction, the COA held that the district court improperly excluded some defense testimony:
Scott contends that the trial court erred when it refused to admit testimony at trial that Soden [state's witness] was being criminally investigated for forging Scott's checks. Scott maintains that such evidence was essential to his ability to present a full and complete defense.
. . . .
Here, evidence concerning the alleged forgery came out at the preliminary hearing when Soden admitted that he had signed Scott's name to two checks and had cashed them in March and April 2004. Soden testified that Scott was at home at the time and had told him to write the checks. Nevertheless, defense counsel asserted that Scott was in custody on a parole violation when the checks were written and could not have authorized Soden to write the checks.
Before trial, defense counsel asked the trial court to allow to him present testimony from a law enforcement officer about an ongoing forgery investigation involving Soden and the checks. The trial court denied defense counsel's request on the ground that only evidence of a conviction is allowed for impeachment purposes, not evidence of an investigation. Defense counsel then asked the trial court if he could question Soden concerning his failure to respond to an inquiry directed to him by the officer investigating the forgery. The trial court again denied defense counsel's request on the ground that there had been only an investigation. The trial court told defense counsel that he could characterize the checks as a debt between Scott and Soden to show bias or ill will in that context.
. . . .
Here, while evidence of the forgery investigation against Soden was inadmissible under K.S.A. 60-421 for general impeachment purposes, the evidence was admissible to show Soden's testimony might be influenced by bias or a motive to testify falsely. . . . Here, the evidence concerning the forgery investigation could establish an incentive for Soden to testify falsely against Scott. By testifying against Scott and sending him to prison on the cocaine charges, Soden could possibly avoid the debt he owed to Scott and cast doubt on Scott's claim that he had not given Soden permission to sign and cash his checks.
The COA went on to find that the fact that other impeachment evidence regarding the witness did not render the district court's error harmless:
Nevertheless, none of the evidence pointed to by the State showed the extent of the contentious relationship that existed between Scott and Soden. The friendship had soured to the extent that Soden possibly cashed Scott's checks without his permission and Scott was willing to turn his friend in to the police. Here, Soden was the principal witness used to convict Scott of the charges. Soden was the only witness who could identify Scott as the person who had gotten him the crack cocaine. His credibility was vitally important in this case.
As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on March 27, 2008.]

Improper pat-down

Christina Waugh won in State v. Carson, No. 97,185 (Kan. App. Feb. 22, 2008)(unpublished), reversing a Lyon County drug conviction on Fourth Amendment grounds. Although the COA rejected claims regarding an improper car stop, improperly extended stop, and involuntary search of the vehicle, the COA held that the officer lacked reasonable suspicion to conduct a pat-down:
In Carson's case, it is undisputed that the stop took place in warm weather,which meant that Carson was not wearing bulky clothing which could have concealed a weapon. In fact, Deputy Fell testified that the did not notice any bulge or other indication that Carson was carrying a weapon. Rather, his request for a pat-down was just a "procedure" that Deputy Fell established for himself. When questioned, Deputy Fell admitted that there was no particular reason for the pat-down search. The district court asked, "Was there anything that went on out there that night that made you fear for your safety?" Deputy Fell responded, "No, sir, other than officers getting shot." When a follow up question was asked, Deputy Fell asserted that his personal safety was "always at risk."

The evidence presented at the suppression hearing clearly indicates that Deputy Fell had no reasonable suspicion that Carson was armed. Rather, it appears that Deputy Fell's customary habit was to perform the pat-down search regardless of the circumstances. Without the officer testifying that in this particular instance, he feared for his safety the search was unlawful.
Because the evidence used to prosecute was obtained during the unlawful search, the COA held the motion to suppress should have been granted and reversed the conviction.

[Update: the state did not file a PR and the mandate issued on March 27, 2008.]

Tuesday, February 12, 2008

Lesser verdict in Lawrence

Here is a Lawrence Journal-World article reporting that Tom Bath won a misdemeanor verdict in a Douglas County DUI-Manslaughter and Leaving the Scene of a Fatality Accident prosecution.

[Update: Here is the Lawrence Journal-World articler reporting that the defendant in this case received a 90 day jail sentence followed by two years of supervised probation.]

Monday, February 11, 2008

Come and go at the ADO

Jennifer Conkling, who has been at the ADO for a couple of years now, has decided to go out into the real world. She is going to work with Carol R. Bonebrake here in Topeka. That firm does a lot of employment law and represents several small hospitals. Jennifer was a dedicated public defender and achieved some great results for her clients, including flat reversal of an involuntary manslaughter conviction a couple of months ago in State v. Scott. Jennifer also has several cases in the pipeline, so she will have more wins as a public defender before all is said and done!

Taking Jennifer's place is our newest ADO attorney, Meryl Carver-Allmond, a fairly recent KU Law grad.

Thursday, February 07, 2008

Exceeded scope of search warrant

Thanks to Kansas Federal Defender, who blogged (here) on United States v. Young, No. 07-4060 (10th Cir. Feb. 5, 2008), reversing a Utah drug conviction on Fourth Amendment grounds. See that blog for details. A nice case for both scope of search warrant analysis and good-faith exception analysis.

Kansas makes SL & P again

Here is a link to a recent Sentencing Law and Policy Blog entry where Professor Berman highlights a Kansas City Star article reporting on reduced recidivism rates in Kansas and possible links to recent legislation targeted at reentering persons. I have been in meetings occassionally with DOC and CC officers and have been impressed with their interest in actually helping people not reoffend. But there is only so much they can do with limited resources. I have said for quite a while, it's better for our policy makers to be "smart on crime," and not just knee-jerk by increasing sentences (or making more mandatory minimum sentences, as being discussed right now in the legislature).

Friday, February 01, 2008

Enhanced sentence must be based on prior predicate offense

Michael Holland and Michael Holland II won in State v. Ruiz-Reyes, No. 95,056 (Kan. Feb. 1, 2008), getting a reduced sentence on a Reno County possession with intent to sell conviction. The COA had held that before a drug conviction could be enhanced based on a prior conviction, the prior conviction had to be entered before the instant offense (in contrast to the way that criminal history works). Here is my blog entry on the COA case. The KSC agreed with the COA that no construction was necessary; the plain language of the statute requires that the defendant "have" a prior conviction at the time of the instant offense for the instant offense to be enhanced:
Application of the plain language of K.S.A. 65-4161(a) and (b) to the facts of this case yields the following results: Ruiz-Reyes is a person who violated K.S.A. 65-4161(a) by reason of his June 10, 2005, Reno County conviction for possession of cocaine with intent to distribute. However, at the time the defendant committed the offense that led to the Reno County conviction in 2000, he did not have "one prior conviction under this section," as he was not convicted in Ford County of possession of methamphetamine with intent to sell until 2004. See K.S.A. 65-4161(b). The inescapable conclusion is that Ruiz-Reyes did not "ha[ve]" his 2004 conviction when he "violate[d]" K.S.A. 65-4161 in Reno County in 2000. Therefore, the defendant's conduct does not comport with the plain language of K.S.A. 65-4161(b), and he could not be "guilty of a drug severity level 2 felony" under the statute.

As I previously blogged, it seems like there is an ever expanding list of "special rules" that depend on "prior offenses," so this case may have application outside of the drug arena.

[Update: here is a April 9, 2008 Hutch News article reporting that Mr. Ruiz-Reyes was resentenced to 22 months based on the KSC ruling. His original sentence was 56 months. And the article notes he was resentenced in other cases as well.]

Competency to be extradited

Ron Evans from the Death Penalty Defense Unit won in State v. Patton, No. 98,470 (Kan. Feb. 1, 2008), reversing a Shawnee County district court order authorizing Mr. Patton's extradition to Florida to face capital murder charges. The main issue is whether there is any requirement that the subject of an extradition request be competent to help defend against that extradition. The KSC adopted a "middle ground" approach that requires some competency finding, but lower than that required for trial:
The rationale of the courts adopting the middle of the road approach is persuasive. This narrower approach more closely comports with the summary nature of extradition proceedings, while assuring that the defendant has a sufficient understanding of the issues in order to assist counsel and present defenses. The issues of whether the extradition documents on their face are in order and whether the alleged fugitive has been charged with a crime in the demanding state can be tested by counsel without assistance from the alleged fugitive and, therefore, both the right to counsel and the right to present defenses are not eroded if an alleged fugitive lacks the ability to comprehend the legal documents at issue.

While we lack the expertise to determine whether mental health professionals can carve the fine lines between the standards, from a legal standpoint the only two defenses on which the alleged fugitive's assistance is necessary to test the validity of the extradition are the questions of whether he or she (1) is the person named in the request for extradition and (2) is a fugitive. We, therefore, conclude the statutory right of counsel and the right to present those limited defenses applicable to an extradition proceeding will have been made available if the alleged fugitive has the present ability to consult with his or her lawyer with a reasonable degree of rational understanding of those two issues.

So the case goes back for findings with those standards.

Improper joinder

Janine Cox won in State v. Coburn, No. 96,210 (Kan. App. Feb. 1, 2008), obtaining a second new trial in a Wyandotte County aggravated indecent liberties with a child prosecution. The COA majority held that the state improperly tried unrelated offenses together in the same trial:
Under K.S.A. 22-3202(1), the legislature has set out three alternative conditions precedent (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan) which must be met before a trial court may exercise its discretion to allow the joinder of charges. Because none of the conditions precedent under K.S.A. 22-3202(1) were met in this case, the charges should not have been joined as a matter of law. Further, the misjoinder of charges did not constitute harmless error because the highly inflammatory evidence used to prove the charge of sexual exploitation of a child was sufficiently prejudicial to deny the defendant a fair trial. Accordingly, we reverse Coburn's convictions and remand for separate trials.
We don't see a lot of reversals on joinder issues, but the COA did a detailed analysis in this case and held that the charges should not have been tried together. Some good language if you need to try to get some counts severed for trial.

[Update: the state filed a PR on March 3, 2008].

[Further update: the KSC denied the PR and the mandate issued on July 8, 2008].