Thursday, March 27, 2008

Tenth Circuit troubled by possible perjury

In U.S. v. Rangel, the Tenth Circuit took the unusual step of abating an appeal from a New Mexico drug prosecution so that Mr. Rangel could proceed on a 2255 petition dealing with allegations of perjured testimony. The Court acknowledged that such a procedure is "extraordinary."
It appears, however, that this may be that highly unusual case in which a motion under 28 U.S.C. § 2255 is appropriate while an appeal from the conviction is pending. This court has recognized that “there is no jurisdictional barrier to a district court entertaining a § 2255 motion while a direct appeal is pending.” United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006). But “it should only do so in extraordinary circumstances given the potential for conflict with the direct appeal.”

. . . .

Proceeding with the § 2255 motion is also proper, however, when the motion raises a substantial question about the integrity of the government’s prosecution. That integrity is a concern of the highest order, and questions regarding it can take precedence over matters pending on appeal.

The Tenth Circuit determined the facts presented were troubling and justified a hearing under 2255:
Both Padilla and Palacios had testified at an earlier trial of Mr. Rangel, but the district court had declared a mistrial because the government had not disclosed Mr. Palacios’s observations to defense counsel. The testimony of the two witnesses at the first trial was essentially the same as at the second trial. If their testimony was true, then either the source of information (who, it turns out, was the bus-station manager in El Paso) concocted a story about what had been observed in El Paso (although parts of the story—in particular, Mr. Rangel’s removal of the small bag from the larger bag—uncannily conformed to events several hours later), or Perry concocted a story about what the station manager had told him.

The government agreed to allow Mr. Rangel to proceed on his 2255 motion, so the Tenth Circuit abated the appeal.

Wednesday, March 26, 2008

Bush issues pardon in Kansas case

Here is a Topeka Capital-Journal article reporting that President Bush pardoned a White City farmer, who had pleaded guilty to federal fish and game violations in 1998 and received probation.

There has sort of been a lot of recent comment on pardon practice recently around the blogosphere. Sentencing Law & Policy has commented here. In fact, PardonPower is a blog dedicated to the issue regarding pardons and commutations.

I haven't done or seen a lot of pardon/commutation applications in Kansas. I have done a little historical research in the area and know that, once upon a time, commutations were not that uncommon in Kansas. Often, prisoner serving very long sentences might get commuted to a sentence that would make them parole eligible. I had one client that received a commutation from Governor Finney, who issued several commutations. But it sort of dried up when Governor Graves took office. Governor Graves never issued one pardon or commutation in eight years in office. And, as far as I know, Governor Sebelius has not granted one pardon or commutation so far.

But I have talked with attorneys in other states who have indicated success in pardon/commutation practice, especially when done with the help of a lawyer. So keep it in mind in some of those cases where either factually or legally you think you could make a good case for injustice that was not remedied by the legal system. Especially with some of the current batch of Jessica's Law cases, commutation may be the only way to get relief for some clients.

Monday, March 24, 2008

No attenuation

Charles O'Hara won in State v. Wagner, No. 97,643 (Kan. App. March 21, 2008), reversing some Lyon County burglary convictions based on Fourth Amendment violations. Officers had stopped a car without probable cause and later obtained some confessions to the burglaries. The main issue was whether the confessions were so attenuated that they could be admitted despite the illegal seizure:

Our Supreme Court has set forth four factors to be considered when determining whether a defendant's confession followed by an illegal arrest is admissible: (1) whether Miranda warnings were given; (2) the proximity of the illegal arrest and the statement or confession; (3) the purpose and flagrancy of the officer's misconduct; and (4) other intervening circumstances. State v. Hill, 281 Kan. [136, 153, 130 P.3d 1 (2006)].
. . . .

As in Hill, the only factor weighing in favor of attenuating the unlawful arrest and admitting Wagner's confession is that Wagner was given Miranda warnings before he made his statements. The remaining three factors all weigh in favor of suppressing Wagner's confession. Wagner was kept in continuous police custody between his illegal arrest and his confession at the police station. During those 10 hours, he was questioned, his truck was searched, and he was taken to jail where he was booked on suspicion of burglary. The flagrancy of the deputies' misconduct was not justified based on the circumstances surrounding the arrest and search. Finally, there were no intervening circumstances between Wagner's arrest and his interrogation sufficient to purge the taint of Wagner's illegal arrest and the illegal search of his truck. As a result, the record does not contain substantial competent evidence to support the trial court's finding that any taint resulting from the seizure of the evidence or Wagner's arrest was attenuated by the time Wagner was questioned at the police department.

Under all of the circumstances, the connection between Wagner's illegal arrest and the illegal search of his truck and Wagner's confession cannot be deemed "so attenuated as to dissipate the taint." See Nardone [ v. United States, 308 U.S. 338, 341 (1939)]. Because Wagner's confession resulted from the exploitation of the unlawful arrest and the evidence obtained during the unlawful search of his truck, Wagner's confession was inadmissible at trial and should have been suppressed. Accordingly, we reverse Wagner's convictions and remand the case for a new trial without Wagner's confession or statements.
Judge Leben concurred disagreeing that the officer's conduct was so flagrant, but still concluding that the remaining factors did not support attenuation.

Here is a link to's coverage of the case.

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

Thursday, March 20, 2008

Reduced charges at prelim

Kay Huff and Kip Elliot had some success during preliminary hearing in a Douglas County homicide prosecution. Here is the Lawrence Journal-World article reporting that the two clients were facing intentional second-degree murder charges, that the state asked to bind over on felony murder, but that Judge Fairchild would only bind over on reckless second-degree murder.

Friday, March 07, 2008

No jury waiver

Washburn student intern Staci Lane and I won in State v. Neria, No. 97,050 (Kan. App. March 7, 2008), reversing a conviction in a Shawnee County drug prosecution. Although we lost on a suppression issue, the COA reversed the bench trial conviction due to failure to ever get a jury trial waiver on the record. At the end of the motion to suppress, defense counsel indicated her belief that the matter would probably be resolved without a jury trial, and the district court put in her notes that the jury trial was waived, but no such waiver was ever made on the record. And Kansas law makes it pretty clear that the waiver has to be affirmative, by the defendant (not the attorney), and either on the record or in writing.

The state attempted to use a case that suggested that if a defendant does not raise an issue regarding improper jury waiver at the trial court, he or she cannot raise it on appeal for the first time. But, in the cases cited by the state, there was a waiver on the record. The defendant in those cases were saying there was some problem with the waiver (i.e. they had been coerced or that the colloquy's were insufficient) and the appellate courts in those cases said the record didn't support those claims. Here, where there was no waiver at all, the COA held that the issue was fundamental and could be raised on appeal.

[Update: the state did not file a PR and the mandate issued on April 10, 2008).

What's the hurry?

B. Joyce Yeager won in State v. Huntley, No. 97,338 (Kan. App. March 7, 2008), getting a new trial in a Wyandotte County rape and aggravaed criminal sodomy prosecution. The COA reversed because the district court refused to grant a continuance to allow hiring an expert to evaluation the child witness' testimony:
With regard to the district court's stated ground for denying the continuance because the expert assistance or testimony would be inadmissible because such matters are things "jurors normally know" or "are common sense" and would be inadmissible, we respectfully disagree. We note that at the outset of our analysis that there was no physical evidence here; the reliability of the child witness was a critical aspect of the case. At least one--if not the predominant--theme of the defense, was that M.E.'s natural mother may have been instrumental in suggesting testimony to M.E. Thus, the defense sought expert assistance "to view there videotapes, and analyze the testimony of these children."

. . . .

We do not view the district court's concern over rescheduling to be an appropriate weighing of the [State v. Howard, 221 Kan. 51, 557 P.2d 1280 (1976)] factors. Clearly, Huntley was willing to pay the price of staying in custody until another trial date, as acknowledged by his counsel. As we have noted, there is no credible suggestion that the defense had been less than diligent in considering and attempting to secure such a witness, and there was no discussion regarding the probability of the witness' likely appearance at a later trial. Weighing these factors against the potential importance of the witness and the possible prejudice to the defense, we fail to understand the court's concern over rescheduling.

Most importantly, however, is that the judge's second ground seems to have circled back to the first ground in stating he "probably would not let [an expert] testify." As we have already indicated, this premature statement as to admissibility was an erroneous legal conclusion. The importance of the witness and the prejudicial impact on the defense of proceeding in lieu of such witness is critical in the assessment of a motion for continuance.
Given the importance of such expert testimony in these kinds of cases and given the lack of good reason to not continue the case, the result is not suprising.

[Update: after some delay for substitution of appellate counsel, the state did not file a PR and the mandate issued on May 29, 2008.]

Thursday, March 06, 2008

Grand jury thinks it shouldn't have been called

Here is the Olathe News article reporting that when the grand jury called by petition in Johnson County to investigate possible abortion crimes returned no indictment, it also called for review of the statute by which it was called. In fact, there is no showing required to call a grand jury by petition under K.S.A. 22-3001(2), just a comparatively small number of elector signatures.

And in other counties, prosecutors have used the grand jury to indict persons for matters wholly unrelated to the purpose explicitly stated in the petitions seeking the grand jury. I'm working on one of those cases right now.

I think I agree with the that some review of that statute might be appropriate, both for a slightly different standard for calling the grand jury and for limiting the purpose of the grand jury (or clarifying that petition circulators cannot be represent that the grand jury is called for a specific purpose).

Here is similar coverage from the Wichita Eagle.

Monday, March 03, 2008

Short list in Douglas County

Here is news release announcing the short list to fill the district court vacancy created by Stephen Six becoming attorney general a month ago: Pro Tem Judge Peggy Carr Kittel; Topeka attorney Justice King; and legal counsel for the Board of Tax Appeals, Trevor Wohlford. The governor has 30 days to make her appointment, so if you have input, be sure to let her know as soon as possible.

Here and here is some local coverage of the short list from the Lawrence Journal-World.

Another Pilshaw reversal

I don't regularly blog on probation-revocation appeals, but thought this was timely given Judge Pilshaw's recent and repeated disciplinary record (blogged about here and here). Sean Shores won in State v. Bennett, No. 96,591 (Kan. App. Feb. 29, 2008)(unpublished), reversing a probation revocation finding and remanding f0r a new decision before a different judge. The COA reversed because of a State v. Gary problem (can't use improper acts before probation to revoke probation). But the COA went on to criticize Pilshaw's announcement in court to Bennett's attorney to "Go ahead and make your arguments. I'm finding he's in violation."
Bennett separately argued on appeal that his due process rights were violated by Judge Pilshaw's lack of impartiality. We too have concern when a judge tells a defendant that she has decided the issue before hearing argument. In addition, our review of the transcripts of the sentencing and probation-revocation hearings does not show the dignity of proceedings and level of respect to parties that Kansas citizens rightly expect and deserve from their judges. It is important that those appearing in courts have confidence that a fair hearing is provided to them. We therefore direct that the case be assigned to a different judge on remand.
Bennett had a pretty long underlying sentence (42 months), so he may really benefit from this decision. The vast majority of probation-revocation appeals are moot by the time they are decided.

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