Sunday, June 29, 2008

New blog about courts in Wichita

At least new to me. Here is a link to What the Judge Ate for Breakfast, a blog by Ron Sylvester, the court beat reporter for the Wichita Eagle. He has several interesting entries on stories happening in Wichita courts. Sylvester has always seemed to be a pretty even-handed reporter, so I will be checking his blog often!

Pilshaw censured

Here is the judicial discipline decision in In re Pilshaw, No. 100,060 (June 27, 2008), climaxing the disciplinary proceedings against her previously blogged about here and here. The KSC publicly censured Judge Pilshaw for yelling at prospective jurors:

The aim of judicial discipline is "the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual." This principle directs the outcome in the respondent's case. The respondent's failure to control her temper and frustrations and her conduct toward potential members of the jury in open court greatly detracted from the honor and dignity of the judiciary. Her actions negatively impacted the proper administration of justice in a felony criminal case over which she presided. While we recognize that the Commission's recommendation is not binding on this court, our review of the entire record supports the Commission's recommendation that the appropriate discipline in the respondent's case is public censure.
Judge Pilshaw's was previously repremanded as reported here.

Here and here is coverage of the censure in the Wichita Eagle. I will be blogging about judicial candidates in Sedgwick County and, of course, Judge Pilshaw is one of those up for election.

Sort of odd that the KSC indicated it had complete confidence that any misconduct was harmless beyond a reasonable doubt in a first-degree murder case, but also finds that the same conduct merits public censure.

Update: here is an entry on What the Judge Ate for Breakfast noting that the censure order hit the national blog scene. One cited blog called Deliberatons, about juries, sort of agrees that the Gaither opinion doesn't inspire a lot of confidence:
But surely Gaither and his lawyers didn't get the voir dire they should have, much less the deeply committed jury described in that other juror's letter to the judge. An apology is a good thing, but more than a year after the Gaither opinion, a taint remains.
'Nuff said?

Wednesday, June 25, 2008

Short list and another vacancy in Topeka

Here is Topeka Capital-Journal article reporting on the short list to fill the district court vacancy created by Judge Conkin in Shawnee County. The short list is Dave Debenham, Ruth Graham, and Cheryl Rios Kingfisher. If you have comments about these nominees, let the governor know.

The article also notes that the nominating commission will be busy as Judge Dowd is also retiring. So the commission is accepting nominations for that position until July 10. Are there any Shawnee County defense attorneys out there interested in the bench? If so, get your applications in! Here is the court press release regarding the vacancy.

Former ADO applies for district judge

Mary Prewitt, who spent a short time in the ADO, is on the list of attorneys applying for the district judge position in the 2d Judicial District. Here is a link to a Lawrence Journal-World article reporting Mary's background and on the other six applicants as well. Here is the court press release on the applicants.

Not guilty in double murder case

Steve Rosel won an acquittal in State v. Hopper, a Sedgwick County double first-degree murder prosecution. Here is coverage in the Topeka Capital-Journal. Here is coverage on What the Judge Ate for Breakfast.

Friday, June 20, 2008

Juveniles have right to a jury trial

Paul Shipp won in In re L.M., No. 96,197 (Kan. June 20, 2008), reversing a Finney County juvenile prosecution and overruling Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984), the twenty-four year old precedent holding that juveniles are not entitled to a jury trial. The KSC acknowledged that SCOTUS precedent has held otherwise, but noted that the Kansas Legislature has substiantially abandoned the rehabilitative purpose of the juvenile system underlying that decision:

These changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system. The United States Supreme Court relied on the juvenile justice system's characteristics of fairness, concern, sympathy, and paternal attention in concluding that juveniles were not entitled to a jury trial. [McKeiver v. Pennsylvania, 403 U.S. 528, 550 (1971)]. Likewise, this court relied on that parens patriae character in reaching its decision in Findlay. However, because the juvenile justice system is now patterned after the adult criminal system, we conclude that the changes have superseded the McKeiver and Findlay Courts' reasoning and those decisions are no longer binding precedent for us to follow. Based on our conclusion that the Kansas juvenile justice system has become more akin to an adult criminal prosecution, we hold that juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments. As a result, K.S.A. 2006 Supp. 38-2344(d), which provides that a juvenile who pleads not guilty is entitled to a "trial to the court," and K.S.A. 2006 Supp. 38-2357, which gives the district court discretion in determining whether a juvenile should be granted a jury trial, are unconstitutional.

In reaching this conclusion, we are mindful of decisions in other jurisdictions rejecting the argument that changes to the juvenile justice system have altered its parens patriae character.
We are also mindful that many of the state courts that have addressed this issue in one form or another have declined to extend the constitutional right to a jury trial to juveniles.
While there is wide variability in the juvenile offender laws throughout the country, it nevertheless seems apparent to us that the KJJC, in its tilt towards applying adult standards of criminal procedure and sentencing, removed the paternalistic protections previously accorded juveniles while continuing to deny those juveniles the constitutional right to a jury trial. Although we do not find total support from the courts in some of our sister states, we are undaunted in our belief that juveniles are entitled to the right to a jury trial guaranteed to all citizens under the Sixth and Fourteenth Amendments to the United States Constitution.
The majority went on to also hold that the right to jury trial attaches under section 10 of the Kansas Constitution:

The KJJC repeatedly refers to its proceedings as a prosecution. See K.S.A. 2006 Supp. 38-2303(c), (d); K.S.A. 2006 Supp. 38-2304(e)(2); K.S.A. 2006 Supp. 38-2346(a), (b)(1); K.S.A. 2006 Supp. 38-2350; K.S.A. 2006 Supp. 38-2381. In addition, proceedings under the KJJC are based on allegations that juveniles have violated the criminal laws of this State. Because the KJJC has lost the parens patriae character of the former KJOC and has transformed into a system for prosecuting juveniles charged with committing crimes, we conclude that the proceedings under the KJJC fit within the meaning of the phrase "all prosecutions" as set forth in §10, and juveniles have a right to a jury trial under the Kansas Constitution. Consequently, K.S.A. 2006 Supp. 38-2344(d) and K.S.A. 2006 Supp. 38-2357 are also unconstitutional under the Kansas Constitution.
The majority holds that this decision is only to be prospectively.

Here is coverage from the Topeka Capital-J0urnal. Here is coverage in the Wichita Eagle. Here is coverage in the Hutchinson News. Here is coverage in the Lawrence Journal-World. Here is coverage in the Kansas City Star. Here is coverage on KCTV5. Here is coverage on What the Judge Ate for Breakfast. And the story hit the national wire. Here is coverage in the Washington Times for example. And the national blogs. Here is coverage on How Appealing. And here and here is coverage on Sentencing Law and Policy.

This is obviously a big decision in juvenile circles. I know Paul has been working on this issue for a long time and it is a great victory. Any juvenile defendant (whose case is not final) unsatisfied with a trial court guilt adjudicaton should cite this opinion.

Does this decision have any impact in criminal cases? I guess my first thought was whether it has any impact on State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996). Prior to 1996, K.S.A. 38-1601 stated that “In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of [the Juvenile Code], be deemed or held to import a criminal act on the part of any juvenile....” We argued that the recently passed Sentencing Guidelines Act, which included juvenile adjudications in criminal history violated this statute. The KSC said that the "fallacy with this argument is that the defendant equates the term 'criminal act' or 'criminal conviction' with 'criminal history.' It is well established that a juvenile adjudication is not a 'criminal conviction.'” The KSC also rejected a claim that juvenile adjudications could not be used because the juvenile proceedings did not include a right to a jury trial.

The L.M. Court's conclusion is just the opposite of LaMunyon. The KSC has finally acknowledged that, at least since 1996, Kansas has definitely attached different consequences and has different policy goals in the juvenile justice system and those differences transform juvenile adjudications in a meaningful way. If you had a criminal history score that included juvenile adjudications from before January 1, 1997, I think I would object based on K.S.A. 38-1601 as it applied before 1996 and as the juvenile system is interpreted by L.M.

Maybe L.M. has a more general impact on juvenile adjudications? Although the KSC attempts to say that this decision can only be applied prosectively, the reality is that the legislative changes that transformed juvenile adjudications into criminal prosecutions date from 1996. If the state seeks to use any juvenile adjudications in criminal history, I suppose you could argue they were unconstitutionally obtained and should not be included in criminal history.

Any other ideas about the import of L.M.? Please comment.

[Update: the state filed a motion for reheaing on July7, 2008].

[Further update: the KSC denied the state's motion for rehearing on September 22, 2008.]

[Further update: here is a January 2009 Hutchinson News article reporting that courts have not been overburdened by this ruling.]

Thursday, June 19, 2008

Adult sentence can't be consecutive to juvenile sanction

Rachel Pickering and Sarah "The Kid" Morrison won in State v. Crawford, No. 98,312 (Kan. App. June 13, 2008), reversing the district court’s denial of a motion to correct illegal sentence. Crawford claimed the sentencing court erred in ruling his adult sentences consecutive to his juvenile adjudications. The COA agreed and reversed his sentence. The COA held:
This appeal raises the question of whether an adult sentence can be consecutive to a juvenile sanction. This is the first time this issue has been addressed in Kansas. A court's power to impose consecutive sentences flows from statutory authority. Kansas sentencing statutes require some consecutive sentences in certain cases and give the court discretion to impose consecutive sentences in other circumstances. Because none of the consecutive-sentence statutes expressly include probations or imprisonments arising from juvenile adjudications, we hold the district court had no authority to impose a consecutive adult sentence. We vacate the sentence and remand.
The court looked specifically at K.S.A. 21-4608(c), which states in relevant part that, "[a]ny person who is convicted and sentenced for a crime committed while on probation . . . shall serve the sentence consecutively to the term or terms under which the person was on probation . . . ." Regarding these mandatory consecutive sentences, the court held:
Based on the legislature's exclusion of specific language listing juvenile adjudications, we conclude that body meant to exclude juvenile adjudications from cases calling for consecutive adult sentences. The court here had no authority to impose a consecutive sentence. Thus, this was an illegal sentence.

The court also noted that the legislature has since clarified the law on this subject. The court cited K.S.A. 2007 Supp. 38-2376(a), dealing with the release of juvenile offenders:

"When a juvenile offender has reached the age of 23 years, has been convicted as an adult while serving a term of incarceration at a juvenile correctional facility, or has completed the prescribed terms of incarceration at a juvenile correctional facility, together with any conditional release following the program, the juvenile shall be discharged by the commissioner from any further obligation under the commitment unless the juvenile was sentenced pursuant to an extended jurisdiction juvenile prosecution upon court order and the commissioner transfers the juvenile to the custody of the secretary of corrections." K.S.A. 2007 Supp. 38-2376(a) (New language is emphasized.)

Had that statute been in effect here, Crawford would have been discharged from his juvenile program and could have served his adult sentence.

Thus, under this case, or K.S.A. 2007 Supp. 38-2376(a), it appears that an adult sentence can not be run consecutively to a juvenile sanction.

[Update: the state did not file a PR and the mandate issued on July 17, 2008].

Monday, June 16, 2008

Public safety stop comes up short

Carl Folsom won in State v. McCaddon, No. 96,051 (Kan. App. June 13, 2008), reversing a Saline County DUI conviction. The COA held that the basis for concern when investigating an anonomyous tip regarding a domestic dispute was insufficient to justify a public safety stop:
Public safety stops fall under the police's community caretaking function, which expands beyond the police's role in investigating crime. Public safety stops are justified by the mobility of the automobile and the danger to the public. State v. Tucker, 19 Kan. App. 2d 920, 925, 878 P.2d 855 (1994). In analyzing the validity of a stop, the risks to the public that would occur if an immediate stop is not conducted must be weighed against the right of an individual to be free from such stops. "[W]here the danger to the public is clear, urgent, and immediate, the equation must be weighted in favor of protecting the public and removing the danger."

. . . .

In contrast to Tucker, where there was an immediate danger to the motoring public, the tip here raises no concern for other motorists and little concern for the driver of the Neon. The district court failed to consider the risk of harm involved if Huen had not immediately stopped the vehicle and had instead waited until more information was available. As stated in Tucker, the reliability of information provided by the tip must be considered in the totality of the circumstances, along with the risk of harm to the public. In this case, neither the amount of information provided by the tip nor the risk of harm to the public tips the scales in favor of a valid public safety stop. The caller did not say that anyone was injured. The officer did not observe any erratic driving that would indicate the driver of the vehicle might be injured. Huen testified he immediately pulled over the vehicle without observing it first to see if it appeared the driver was in distress. There was no testimony that traffic was heavy at the time, which might indicate a risk of danger to the public; also, the time at night would indicate that there probably was not heavy traffic posing a great risk to the public.

Further, Officer Huen did not state that the caller actually saw or heard the argument. On cross-examination Huen stated that the caller "reported hearing a male and a female arguing out in the yard"; the caller never stated there were any injuries or that anyone was harmed in the disturbance. Huen testified that the fact that the caller said someone was going to the hospital was his only indication that someone was injured.

Following up, the information provided by the anonymous caller was only partially verified by Huen before he made the stop. When Huen arrived at the location, he did not see anyone in a yard, and he did not speak to anyone regarding a disturbance. While he was at the location looking for the disturbance, he saw a car matching the description travel through an intersection within half a block of him. However, Huen did not verify that the driver was a male before initiating the stop. McCaddon argues that because Huen did not see the vehicle until approximately 10 minutes had passed since the caller stated the vehicle was leaving for the hospital, Huen should have assumed the vehicle would have been more than half a block away. The hospital was approximately 4 blocks from the location of the alleged disturbance. It was late at night, but Huen did not testify about the amount of traffic in the area at the time.

Finally, it does not appear that Officer Huen stopped McCaddon's vehicle primarily for public safety reasons. Huen's first reason for stopping the vehicle was to investigate the disturbance call.
Here is coverage on

[Update: the state attempted to file a PR, but it was not delivered to the clerk's office until a day after the 30-day deadline, making it late. As a result, the KSC refused to accept the PR and the mandate issued on August 6, 2008].

Sunday, June 15, 2008

Dismissal with prejudice affirmed

Deborah Huth in State v. Reavis, No. 98,915 (Kan. App. April 11, 2008), affirming Judge Wheeler's order of dismissal with prejudice in a Lyon County DUI prosecution. After the state's witness (a Highway Patrol trooper) failed to show up at trial, the successfully moved for dismissal. The district court noted that this was a repeat problem with this witness:
[I]f this was only the first time that this officer had not appeared I'd probably be inclined to buy it but that's not the first time that we've had a difficulty with this officer appearing for jury trials as scheduled. . . .

The COA rejected the state's claim that the district court failed to consider other alternatives to dismissal:
Here, the State served Tucker on April 4, 2007, for the trial on June 13, 2007. Apparently, the State never made any further contact with Tucker after the subpoena was issued. Unlike the witness in Corby, a private citizen with no relation to the State, Tucker was a Kansas Highway Patrol Officer. Not only should the State have more contact with such an officer than with a private citizen, it is disconcerting that the officer would dishonor a subpoena. Additionally, this was not Tucker's first problem with appearing at a trial, and this experience should have alerted the State that the issue could arise again. Had the State taken relatively simple preventative measures prior to the day of the trial, such as maintaining any level of contact with Tucker, it could have assured his compliance with the subpoena or moved for the continuance long in advance of the commencement of trial. It cannot be said that the State did everything it could to ensure that Tucker appeared for the trial.
We conclude the district court did not abuse its discretion in dismissing with prejudice under these circumstances. The trial date had been set, the witness was subpoenaed, the jury panel had been seated, the proceedings were suspended at the State's request, only to learn that the witness had disregarded the subpoena in order to take vacation-in a manner consistent with his past conduct.

[Update: the state did not file a PR and the mandate issued on May 15, 2008.]

Friday, June 13, 2008

Suspicionless probation search condition unconsitutional

Pat Dunn won in State v. Bennett, No. 98,038 (Kan. App. June 13, 2008) and three other Dickinson County cases vacating a probation condition requiring probationers to submit to suspicionless searches:
While no specific standard has been set forth by the United States Supreme Court or Kansas courts, the Tenth Circuit Court of Appeals has analyzed Kansas law with respect to whether suspicionless parolee searches are valid and has thus shed some light on this issue.

In [United States v. Freeman, 479 F.3d 743 (10th Cir. 2007)], the court noted the existence of the KDOC regulations which required reasonable suspicion to support an SEO search. More relevant to the issue presented here is K.S.A. 21-4610 which sets forth a nonexclusive list of acceptable conditions of probation. There is no search condition contained in that list. The condition that comes the closest to a search provision states that the probationer must "permit the court services officer or community correctional services officer to visit the defendant [probationer] at home or elsewhere." K.S.A. 21-4610(c)(4). This is in keeping with the Freeman court's statement that Kansas has not gone as far as California in authorizing probationer/parolee searches.

If parolees have fewer rights than probationers following the Uhlig continuum, then probationer searches in Kansas should generally be supported by reasonable suspicion. If Kansas statutes provided for suspicionless searches as does California statutory law, perhaps the result reached could arguably be different. However, the condition of probation imposed in this case is unconstitutional and unenforceable. The district court's order of probation which included a condition subjecting the defendant to nonconsensual, suspicionless searches by community corrections or law enforcement officers is reversed.

We blogged about similar issues here and here.

[Update: the state filed a PR on July 14, 2008.]

[Further update: the KSC granted the state's PR on September 22, 2008. The case will likely be argued on the December or January docket.]

[Further update: the KSC affirmed the COA on January 30, 2009. Here is the blog entry on the KSC decision.]

Thursday, June 12, 2008

IAC win in district court

Kevin Shepherd won at an IAC remand hearing in State v. Justin Elnicki, 01CR 1828 (Kan. Dist. June 5, 2008), obtaining a third trial in a Shawnee County rape prosecution. This is the same case as the 2005 ADO case of the year, where Pat Dunn got a reversal based on inappropriate comments on credibility included in a videotape interrogation being shown to the jury. On remand, Mr. Elnicki was again convicted. He filed another appeal, but during the appeal process, Kevin sought and received a remand for the district court to consider claims of ineffective assistance of trial counsel at the second trial. The IAC claim was based on failure to investigate important defense witnesses. The district court agreed that counsel at the second trial was deficient and that the deficient performance was prejudicial. So, maybe Mr. Elnicki will get a fair and consititutional trial the third time around!

Can't use post-probation acts for probation violation

Alice C. White of the KU Defender Project won in State v. Skolaut, No. 97,401 (Kan. May 16, 2008), substantially affirming Judge Kaufman's refusal to violate Mr. Skolaut's probation based on acts occuring after the probation period had expired. The KSC held that a district court can take such acts into account when determining disposition after violation, but not for the violation finding itself.

For the appellate jurisdiction nerds out there--that's you Paige--I thought it was sort of odd for the KSC to reach the merits of this case. The COA had dismissed this appeal as a case of insufficient importance to justify an appeal on a question reserved. The state's petition for review was from the order of dismissal--the COA had never reached the merits. But the KSC did. Normally, I would think that the KSC would reverse the dismissal and remand to the COA for determination of the merits (that's what they do in most other cases where either the COA improperly dismisses an appeal or fails to reach some issues because of way its original opinion is shaped).

Rule 8.03 provides for such a disposition in civil cases:
In a civil case, if issues decided by the district court were presented to, but not decided by, the Court of Appeals and review has been preserved as to those issues, the Supreme Court may consider and decide such issues, may remand the appeal to the Court of Appeals for decision of such issues, or may make such other disposition with respect to such issues as it deems appropriate.
Of course, this wasn't a civil case--but the rule doesn't say the KSC can't reach the issue in other cases (except by omission). Maybe you could cite this opinion for the proposition that the KSC should just reach those issues in a criminal case, even though the COA had not decided them on the merits?

Tuesday, June 10, 2008

One judge position filled, one to go

Here is the Governor's press release announcing the appointment of David W. Hauber as District Judge for the 10th Judicial District (Johnson County). This fills the position created by Judge Russell's retirement. It doesn't look like Mr. Hauber has a lot of criminal law experience.

Here is the announcement regarding a district court vacancy (new position) in the 2d Judicial District (covering Jackson, Jefferson, Pottawatomie, and Wabaunsee Counties). Nomination forms are due on June 20. I know a lot of good attorneys who live in those counties--so get those nominations in!

How much investigation does it take to give a parking ticket?

Washburn student intern (now Salina PD) Andrew Parmenter and I won in State v. Gross, No. 97,444 (Kan. App. June 6, 2008), reversing a Sedgwick County drug conviction. Officers saw a car stop too close to a drive way and saw the driver start to walk away. Officers pulled up and stopped the driver to tell him that he was illegally parked and immediately started questioning him regarding other matters. An officer also went up to the passenger side of the car and started questioning Ms. Gross. The COA agreed that the officers had seized Ms. Gross without justification:
At the suppression hearing, neither officer was able to point to anything they discovered in their initial encounter with Stroot that would cause them to reasonably suspect that either Gross or Stroot was involved in drug activity or that evidence of drug activity would be found in the car. Specifically, when questioned by defense counsel during cross-examination, Boucard acknowledged that all he knew when he ordered Stroot to the back of the patrol car was that Stroot had committed a traffic infraction and that he was suspicious about Stroot wanting to leave the car. Consistent with Boucard's testimony, Mains acknowledged that when he went to talk to Gross, the only thing that had happened was the parking violation and that he had suspicions of nothing else. Essentially, when Boucard ordered Stroot to the back of the patrol car and Mains approached Gross, all the officers had was a hunch that there was something suspicious going on and that Stroot and Gross might be involved in criminal activity. The totality of the circumstances known to the officers when the detention occurred did not provide a specific and articulable basis to create a reasonable suspicion that Gross had committed or was about to commit a crime. Without more facts providing an articulable basis for reasonable suspicion that Gross had committed, was committing, or was about to commit a crime, the officers could not lawfully detain Gross to prove their hunch.
In summary, when the officers detained Gross, they had exceeded the scope of any stop or detention for Stroot's parking violation. At that point, the officers did not have reasonable suspicion that Gross was involved in criminal activity to justify her detention. Any evidence that is obtained as a result of an unlawful stop or detention must be suppressed as fruit of the poisonous tree.
Nice job by trial counsel at the suppression hearing. Here is coverage on

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

Monday, June 09, 2008

Statutory speedy trial [ON RECONSIDERATION]

Sarah Morrison and Korey Kaul won in State v. Gore, No. 97,380 (Kan. App. June 6, 2008), reversing a Sedgwick County aggravated criminal sodomy conviction. On a record the COA found unclear, it held that the record was insufficient to support the district court's allocation of time to the defense:

First, the fact that the trial court had known Ladner for a longer period of time than it had known defense counsel is not very helpful. The record fails to show that the court used this information to make a credibility determination between Ladner and defense counsel's testimony. The record is absent of an explicit finding concerning Ladner and defense counsel's credibility. Moreover, the court stated that it had no reason to question defense counsel's forthrightness.

Second, the trial court's finding that Ladner was very conscientious about the allocation of speedy trial time is not helpful either. For example, Ladner testified that when she set two or more trials to start on the same date, the case that would be given preference would be the one that was close to violating a speedy trial rule. Because the State did not try Gore on November 14, 2005, this would imply, at least based on Ladner's preference in trying cases, that Ladner did not believe Gore's case was close to a speedy trial violation. In fact, the record indicates that on November 14, 2005, the State would have been responsible for 88 days of the speedy trial period after Gore's arraignment. Consequently, on November 14, 2005, the State still had 92 days in which to bring Gore to trial within the 180-day speedy trial rule.

Third, what Ladner would have done had the State requested the continuance is a supposition–not a fact.
Fourth, the trial court's finding that defense counsel appeared in court and requested the continuance is also not determinative based on the record of the proceedings. For example, one record stated that the continuance should be attributed to Gore and another record stated that the continuance should be attributed to the State. Since the record of the proceedings is inconclusive as to whether Gore or the State caused the delay, the trial court's findings are inadequate to conclude that Gore had caused the delay.
The State booked Gore's trial for aggravated criminal sodomy and aggravated indecent liberties with a child for November 14, 2005. Yet, the State chose instead to try another case. The obligation is upon the State and the court to commence the trial within the statutory period, unless a clear record is made showing that the delay in bringing a defendant to trial was caused by the fault of the defendant. The record, however, fails to show who was clearly responsible for Gore's rain check, i.e., the continuance on November 14, 2005. Although one of Gore's defense attorneys accepted the January 9, 2006, trial setting, his acceptance is neither an acquiescence to a continuance nor the equivalent of a waiver of Gore's statutory right to a speedy trial.
Our 180-day speedy trial rule operates like a statute of limitations. The State, not Gore, was responsible for ensuring that Gore was tried before the statutory speedy trial deadline expired. Gore had no duty to bring himself to trial.
These are sort of odd cases, because the appellate courts usually review de novo, but that review in many case is based upon a factual record. Where there is a poorly developed record, as in this case, the appellate court correctly held it against the state.

Nice to see a Gore get justice from an appellate court.

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

[Further update: on April 9, 2009, the KSC granted the state's PR and remanded to the COA for reconsideration in light of State v. Vaughn, No. 98,840 (Jan. 30, 2009), which itself remanded a case to the district court for factual determinatins on whether defendant had acquiesced to a critical continuance.]

Friday, June 06, 2008

Character evidence win

Robert R. Nigh, Jr. and Clark O. Brewster won in U.S. v. Yarbrough, No. 06-5229 (10th Cir. June 3, 2008), getting a new trial in a Oklahoma federal prosecution for obstructing an official proceeding and providing unlawful notice of a search or seizure warrant. The main issue was whether the district court improperly excluded good character evidence:

Yarbrough sought to introduce at trial character evidence of his integrity and status as a law-abiding, trusted police officer, pursuant to Federal Rules of Evidence 404(a)(1) and 405. He asserted evidence of his law-abiding nature was directly relevant to the charges at issue, which alleged he corruptly impeded and conspired to corruptly impede an investigation, as well as unlawfully and willfully provided notice of the existence of a search and seizure warrant to prevent the execution of such warrant. The district court excluded Yarbrough character witnesses on the ground the proffered evidence went to Yarbrough’s “state of mind at a particular incident,” rather than to the existence of “operative facts.”
The Federal Rules of Evidence specifically provide that at trial a defendant may adduce “evidence of a pertinent trait of character.” Fed. R. Evid. 404(a)(1). The Rules further provide that “proof [of character] may be made by testimony as to reputation or by testimony in the form of an opinion.” Fed. R. Evid. 405(a). Taken together, these rules make clear that although propensity evidence is generally not allowed, “when . . . the defendant in a criminal case seeks to offer evidence of his good character to imply that he is unlikely to have committed a crime, the general rule against propensity evidence is not applied.” 1 McCormick on Evidence § 191 (Kenneth S. Broun, ed., 6th ed. 2006).
Despite the plain language set out above, the district court excluded character evidence because the underlying facts were not in dispute and the only issue for the jury was whether Yarbrough acted with a prohibited mind set at the time he undertook those undisputed actions. We cannot discern in Rule 404(a)(1) the distinction announced by the district court. Instead, in a remarkably similar situation, this court has recognized that such evidence is not only relevant, but also vitally important.
So Mr. Yarbrough gets a new trial. I've always said it's good to represent a cop on appeal.

Wednesday, June 04, 2008

Willie Aikens Released

Since I joined this blog roughly a month ago, I have been trying to figure out a way to link my love for baseball, and the Kansas City Royals, to a relevant topic regarding criminal defense. Well, today I found it. Willie Aikens, a key member of the 1980 Kansas City Royals (who beat the Yankees to go to the World Series), is to be released from federal prison today. Here is espn’s story on Aikens’ release. Here is an article from the KC Star.

Aikens was one of the tens of thousands of criminal defendants sentenced under the federal guidelines to a disproportionately high sentence for crack cocaine (when compared to powder cocaine). On November 1, 2007, the U.S. Sentencing Commission reduced the sentencing ranges for crack cocaine offenses by two levels, and made the changes retroactive. Here and here are blog posts from Kansas Federal Defender on the retroactive changes to federal crack sentences (and what to do if you have one of these clients).

Aikens’ case was important because it was a vehicle for explaining the crack-powder sentencing disparity to the general public. It also reminds me that change can be effected by shining light on the inequities of the criminal justice system.

Monday, June 02, 2008

Scope limited during investigatory detention

Larry Schwartz won in State v. Lacey Smith, No. 96,189 (Kan. May 30, 2008), upholding Judge St. Peter's suppression order in a Cowley County drug prosecution. The KSC succinctly summarized its opinion in its opening paragraphs:
In Muehler v. Mena, 544 U.S. 93, (2005), the United States Supreme Court held that law enforcement officers could ask questions unrelated to the purpose of a search when executing a warrant authorizing the search of a residence. This case raises the question of whether that decision alters our longstanding rule that a law enforcement officer violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated to the purpose of the stop.

We conclude it does not. Mena does not overrule longstanding precedent limiting the scope of an investigatory detention [and] does not address the question of the scope of an investigatory detention.
We've seen some COA cases sort of questioning whether the scope limitation survived Mena, so it is good to see a definitive answer on that question. Here is coverage on

[Update: the state filed a petition for a writ of certiorari on August 26, 2008.]

[Further update: the SCOTUS denied the state's petition on December 1, 2008.]