Thursday, July 31, 2008

Conflict office in Wichita

Here is a short What the Judge Ate For Breakfast article reporting on the opening of a new conflict office in Wichita.

Wednesday, July 30, 2008

New judge in Wyandotte County

Here is a Topeka Capital-Journal article reporting that the governor appointed Wes Griffin to be a district judge in Wyandotte County to finish the term of retiring Judge Sieve.

Friday, July 25, 2008

Nice article about Defender Project

Thanks to Shawn Minihan for tipping me on this nice article on the KU Defender Project, including memories of Jana Mackey, a Defender Project student that was killed earlier this month.

Judges blogging?

As we recently noted here, Judge Pilshaw recently entered the blogosphere with this initial entry reporting on a sentencing case she had completed a day or two before. When I talked about this with most of my colleagues, almost uniformly the first reaction was "Can a judge do that?"

An anonymous response asked the same question on Judge Pilshaw's blog and her response was:
I am perfectly free to discuss this case. I think you may be incorrectly referring to Canon 3 of the Code of Judicial Conduct. Paragraph (9) of that canon states: "A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonable be expected to affect its outcome or impair its fairness..."Obviously this is not a pending matter. Judges often comment about cases when they are over.

We approached our colleague and resident blogger Meryl Carver-Almond, for some insight. She is quite sensitve to judicial ethics, having just completed a stint as a judicial clerk. Here is her guest-blog on the subject:

Let me start by saying I think more judges should blog. I believe our entire judiciary system suffers from an image problem that would be helped if the general public knew more about judges and the judicial process. Of course, there will always be extremists who throw around terms like "activist judge" when a decision doesn't go the way they would like. On the whole though, it's much harder to criticize a judge personally if you know that he or she is a basically good, well-reasoned person who just sees an issue differently than you do. How the courts work is such a mystery to even well-educated non-legal people. Done correctly, judicial blogging can only help to inform the general public.

Judicial blogging can also help inform us as lawyers. After all, aren't judges supposed to be the best of us? Why not have them sharing their knowledge in easily accessible forums? Particularly those frequented by young lawyers such as websites and blogs.

But back to those pesky ethical rules--what are the limits on what a sitting judge can blog about?

Of course, all of the general rules that apply to judges still apply when a judge starts blogging--for example Canon 1 which requires that a judge shall uphold the integrity and independence of the judiciary.

More specifically, though, Judge Richard Posner of the Seventh Circuit Court of Appeals (and a blogging judge), has this to say,

"[T]here are two things that, as a judge, I can't talk about in public (and this is in public). One is pending cases, which means (in any court, not just mine) cases in which all possibilities of further proceedings, such as an appeal to the Supreme Court, have not yet been exhausted. Oh I can mention a case, e.g., Grokster, which Tim discussed and linked to, or even talk around it a bit, but I can't comment directly or indirectly on the merits of the decision. . .

"[S]econd, I can't comment about any current political campaigns, the presidential or any other, or candidate . . . ." (Source.)

This summary seems to be dead on with the Kansas Code of Judicial Conduct. Specifically, Canon 3(B)(9) provides that a judge shall not make comments that might impair the fairness of any proceeding. The commentary then clarifies that a case is “pending” throughout any appeal and until a final disposition of the case has been made. Canon 5(A) prohibits most political commentary and advocacy.

Canon 4 is also at issue. Canon 4(A) requires judges to "conduct all of the judge's extra-judicial activities so that they do not . . . cast a reasonable doubt on the judge's capacity to act impartially as a judge [or] interfere with the proper performance of judicial duties." It's easy to see how a blog post could indicate to parties that a judge was pre-judging a case, or lead to a judge having to recuse himself or herself from a case in order to avoid the appearance of impropriety. At the same time, Canon 4(B) indicates judges should "speak, write, lecture, teach and participate in other extra-judicial activities concerning the law . . . ."

Given the constraining and somewhat confusing state of the rules, it's easy to see why very few judges are blogging. In an hour of searching, I found three. Judge Posner, who blogs at the "The Becker-Posner Blog; Judge Nancy Gertner, a U.S. district judge in Massachusetts who blogs on's "Convictions" blog; and Judge H. Lee Sarokin, a former Third Circuit Court of Appeals judge who blogs at "X-Judge". With the exception of Judge Sarokin--who, although wonderful to read, is perhaps a little more informal--the blogs feel more like journal articles repackaged in a form most likely to reach a new, more technologically advanced audience. They feel like respectable legal scholarship. They are interesting to me as a young lawyer, and I would like to see more judges blogging in this manner.

Here are a few good links for anyone interested in reading more:

"Bench Blogging", an article on blogging judges from the National Judicial College with a list of do's and do not's.

An interview with Judge Richard G. Kopf, U.S. District Judge, Nebraska, who cited a legal blog in his opinion in United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005).

An interview and a podcast (scroll to center of the page) with Judge Gertner about being a blogging judge.

Thanks Meryl!

New judge and new short list in Topeka

Here is the Topeka Capital-Journal article reporting that the governor appointed David Debenham to fill an upcoming vacancy on the district court. That appointment prompted the Shawnee County Nominating Commission to produce a new short list to fill a second upcoming vacancy. Here is the Topeka Capital-Journal article reporting that the new short list is Cheryl Rios Kingfisher, associate municipal court presiding judge; James E. "Jeb" Benfer III, private lawyer; and Larry G. Karns, private lawyer.

Wednesday, July 23, 2008

Lost in Translation

There is an interesting article in the Summer 2008 edition of the Criminal Justice Magazine (Vol. 23/ No. 2) that raises some important points on Miranda warnings. The article discusses “Myths, Methods, and Model Solutions” to some common Miranda problems.

One myth highlighted by the article was that “Miranda warnings delivered in Spanish are the same as those delivered in English.” The article cautioned that Miranda translations do not always adequately advise defendants of all of their rights. The article cited State v. Ortez, 178 N.C. App. 236, 631 S.E.2d 188 (N.C. App. 2006), which held that the warning, “you have the right to solicit an attorney” failed to pass constitutional muster because it did not communicate an unambiguous right to counsel. In other words, Miranda translations need to be scrutinized in every case in which they were used to secure a statement.

Another myth cited in the article was that “Suspects understand that heeding Miranda warnings isn’t harmful.” The article cited a survey of college students in which almost one-third believed that their silence could be used as incriminating evidence in a future trial. As we know, per Doyle v. Ohio, the invocation of the right to silence or the right to an attorney cannot be used as evidence of guilt (except of course in DUI cases). But apparently, people do not know this. Sarah Johnson, CAD, has suggested to me that defendants might need to be advised of their Doyle rights as part of the Miranda warning. “You have the right to remain silent. Anything you say can be used in evidence against you. However, your silence, or lack of cooperation, cannot be used to prove your guilt.” This type of warning might help ensure that defendants actually understand their rights when they are being interrogated by police.

Monday, July 21, 2008

September 2008 KSC docket

Here are the criminal cases on the KSC docket for September 2-5, 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.

September 2, 2008-Tuesday-a.m.

State v. Mark Riojas, No. 98,196 (Sedgwick)
Direct appeal; First degree murder
Shawn E. Minihan
[Affirmed; Rosen; March 27, 2009]

  1. Improper admission of prior bad acts evidence
  2. Improper admission of cumulative exhibits
State v. Steven McCarley, No. 95,818 (Sedgwick)
Direct appeal/state cross-appeal (petition for review); Aggravated battery
Patrick H. Dunn
[Aff'd in part, rev'd in part; Nuss; Nov. 7, 2008]

  1. Improper resentencing for legal sentence
  2. Waiver of sentencing error by failure to appeal
  3. Whether lower level aggravated battery is included in higher level
September 2, 2008-Tuesday-p.m.

State v. Wallace Dixon, No. 97,020 (Lyon)
Direct appeal; First-degree murder
Sarah E. Johnson
[Affirmed; Beier; June 19, 2009]

  1. Failure to grant mistrial when witness altered opinion
  2. Failure to cure error after juror saw defendant in shackles
  3. Failure to give lesser-included offense instruction
  4. Failure to givve unanimity instruction
  5. Improper burglary instruction
  6. Improper admission of mother's obstruction
State v. Angelo Ortega-Cadelan, No. 98,713 (Sedgwick)
Direct appeal; Rape
Carl Folsom, III
[Affirmed; Luckert; Oct. 31, 2008]

  1. Jessica's Law sentence disproportionate
  2. Failure to give downward departure

State v. Anthony Conley, No. 99,279 (Sedgwick)
Motion to correct illegal sentence; First degree murder
Carl Maughan
[Affirmed; McFarland; Dec. 19, 2008]

  1. Apprendi violation
September 3, 2008-Wednesday-a.m.

State v. Peter Marx, et al., Nos. 98,059 & 98,060 (Lyon)
State appeal (petition for review)
Don Krueger, Stephen Atherton
[Affirmed; Johnson; Sept. 18, 2009]
  1. Fourth Amendment (community caretaking)
State v. Brad Jones, No. 97,065 (Johnson)
Direct appeal; First degree murder
Carl E. Cornwell
[Affirmed; Beier; Dec. 12, 2008]

  1. Failure to admit evidence of malpractice leading to death
  2. Newly discovered evidence in re malpractice
  3. Failure to give lesser on aggravated battery charge
September 3, 2008-Wednesday-p.m.

State v. Dennis Thompson, No. 94,254 (McPherson)
Direct appeal (petition for review); Manufacture
Randall L.Hodgkinson
[Aff'd in part, rev'd in part; Luckert; Dec. 5, 2008]

  1. Multiplicity
  2. Identical-offense doctrine

State v. Randy Henning, et al., Nos. 98,118 & 98,119
State appeal (petition for review)
Don W. Lill, Monte L. Miller
[Reversed and remanded; Beier; June 26, 2009]

  1. Fourth Amendment (search incident to arrest)
State v. Charles Boggs, No. 96,921 (McPherson)
Direct appeal (petition for review); Possession
Shawn Minihan
[Reversed and remanded; Davis; Dec. 5, 2008]

  1. Prior bad acts evidence (K.S.A. 60-455)
September 4, 2008-Thursday-a.m.

State v. Carl Baker, No. 98,498 (Shawnee)
Direct appeal; First degree murder
Lydia Krebs
[Affirmed; Nuss; Dec. 5, 2008]

  1. Failure to instruct on compulsion
  2. Gruesome photographs
  3. Prosecutorial misconduct
State v. Kimberly Sharp, No. 98,389 (Shawnee)
Direct appeal; First degree murder
Debra Wilson
[Affirmed; Nuss; June 19, 2009]

  1. Fifth Amendment violation
  2. Improper limitation of cross-examination of accomplice
  3. Improper admission of co-defendant's confessions
State v. Brandon McReynolds, No. 97,936 (Wyandotte)
Direct appeal; First degree murder
Janine Cox
[Affirmed; Rosen; March 13, 2009]

  1. Prosecutorial misconduct
  2. Fifth Amendment violation
  3. Failure to grant mistrial after detective's non-responsive answer
  4. Sentencing error (Cunningham)
September 4, 2008-Thursday-p.m.

State v. Steven Raiburn, No. 95,908 (Elk)
Direct appeal; Possession
Randall L. Hodgkinson
[Dismissal affd/rvd in part/remanded to COA; Rosen; July 24, 2009]

  1. Fugitive disentitlement rule
State v. Toriana Henson, No. 98,573 (Wyandotte)
Direct appeal; First degree murder
Michelle Davis
[Affirmed; Luckert; Dec. 12, 2008]

  1. Improper exclusion of victim's violent acts
  2. Failure to instruct on voluntary manslaughter
  3. Failure to instruct on lesser-included offenses
State v. Marsha Preston, No. 98,948 (Shawnee)
Direct appeal (transfer); Possession
Jennifer Roth
[Affirmed; Johnson; Nov. 7, 2008]

  1. Jail credit/SB 123

Judge Pilshaw Blogs

Judge Pilshaw has started a blog so she can help voters get to know who she is as a person and a judge. Here is the link.

Sunday, July 20, 2008

Judges rated in Sedgwick County

Here is the long awaited Wichita Eagle/Wichita Bar Association survey lawyers regarding judges, including several judges running in contested elections this year. Judge Pilshaw again rated low, as did Judge Brooks and Judge Wilbert.

Friday, July 18, 2008

County attorney races

Here is a Hutch News article reporting on several county attorney races around the state, including PD Lynn Koehn running for Haskell County Attorney. If you have any other info about interesting prosecutorial races, please comment--especially if they involve criminal defense attorneys.

Wednesday, July 16, 2008

New blog on juvenile right to a jury trial

Paul Shipp, who recently won in In re L.M., (as blogged about here) establishing the right to a jury trial for juvenile defendants in Kansas, has apparently gotten a lot of questions and decided to start a blog to help foster discussion. Give it a look. It is called Inrelm and it includes links to download all of the briefs and pleadings from the case. And it invites readers to comment on possible applications or other issues stemming from the case.

Maybe this can be the start of a Kansas juvenile law type blog. (Although I don't think Paul is doing a lot of juvenile cases any more!).

Saturday, July 12, 2008

Don't argue with yourself

Monique K. Centeno, Lawrence W. Williamson, Jr., and Sean Shores won in State v. Toney, No. 97,326 (Kan App. July 11, 2008), remanding for a new hearing on Mr. Toney's motion to withdraw his plea in a Sedgwick County burglary prosecution. The claim on appeal was that Mr. Toney's attorney at his hearing on his motion to withdraw his plea was the subject of the motion itself. The COA agreed that the situation was likely to cause a conflict of interest:

[W]e are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.

In the present case, Toney's public defender candidly acknowledged her conflict to the district court. The prosecutor concurred with this assessment on the additional ground that both the chief public defender and the public defender would be necessary witnesses in support of Toney's claim. This situation could implicate ethical considerations.

We are persuaded that the subject matter of Toney's legal argument and his public defender's in-court acknowledgment of divided loyalties were sufficient to establish a conflict of interest at the time of the hearing on the motion to withdraw plea.

The COA went on to consider whether it should reverse:
The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.
In the present case, Toney's public defender had an admitted concern about having a conflict of interest which resulted in her failure to present evidence and to advocate in support of Toney's motion to withdraw plea. As a consequence, her conflicted representation necessarily undermined any possibility that Toney's motion would be successful. Under these circumstances, we hold the divided loyalties of Toney's public defender adversely affected her performance as Toney's counsel and created an actual conflict of interest.
Here is coverage on the Legal Professon Blog, and here is coverage at Law of Criminal Defense. This is an interesting issue with several even more interesting permutations.

We frequently have cases where we have had a client on appeal before and worry about the possibility that we could have to argue our own IAC in order to raise an issue in a subsequent appeal. In fact, it is one of the main reasons that we seek to withdraw from cases. The COA opinion certainly supports that position.

One issue I would have with the COA's opinion is the idea that an attorney is required to or encouraged to "defend herself against Toney's allegations of ineffectiveness." We frequently enounter defense attorneys (mostly private counsel, but not exclusively) in district court who are quite "defensive" when it comes to a claim of IAC. But I don't think that the attorney is a party to an IAC claim--it is client versus the state. In a malpractice claim or an ethical charge, the attorney is directly affected by the clients claim and therefore is entitled to defend without limitation. But in an IAC claim the attorney is at most a witness. I think the COA reaches the right conclusion, but maybe for (in part) the wrong reason.

I have been somewhat appalled at times to have defense attorneys resist an IAC investigation on the grounds that it might be "setting them up" for a malpractice claim or an ethical charge. And I have even gone to IAC hearings in district court and seen defense attorneys "strategizing" with the prosecutor prior to the hearing. Don't we have a continuing duy of loyalty to these clients? Are we entitled to totally disregard that duty just because the client seeks habeas relief? Obviously, we can't lie or obstruct in habeas proceedings. On the other hand, it seems contrary to our duty to our fomer client to actively work against their interests in the habeas proceeding. I've never felt like I was obstructing when I refused to help a prosecutor who was trying to get me to rat out my client in a habeas proceeding.

Don't get me wrong. I don't like it when I am accused of IAC and I like it even less when I provided IAC. But I would rather fix it than hide it.

Although there could be overlap between IAC, ethical considerations, and malpractice liability, I don't think one necessarily or even usually follows the other. I have raised literally hundereds of IAC claims on appeal (if you include Ortiz type issues, then it would be several hundred), but have never reported a defense attorney for unethical conduct. And I have been found ineffective (see here) and did not self report. I just think the issues are quite separate.

Perhaps some of my private counsel colleagues can take the counter-point here. I am admittedly ignorant of some of the realities of the world of private practice. Does an IAC finding affect your malpractice rates? Does an IAC finding so negatively impact your reputation that you feel it necessary to advocate against your client in a habeas proceeding?

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

Fifteen apply for Dowd's seat

Here is a Topeka Capital-Journal article reporting that fifteen applied for the district judge vacancy to be created by Judge Dowd's upcoming retirement. The list includes the attorneys who were on the most recent short list blogged about here. If you have comments that would be useful to the nominating commission, get them in soon.

Of the fifteen that applied, two work at the district attorneys office and two work at the attorney general's office (one appellate and one civil). As far as I know, none of these lawyers are full-time (or most time) criminal defense attorneys.

[Update: here is a Topeka Capital-Journal article reporting on the interviews that took place for this vacancy].

Monday, July 07, 2008

Limits on candor to court

Patrick Dunn won in State v. Hemphill, Nos. 95,209 and 95,210 (Kan. July 3, 2008). The KSC reversed the district court's denial of Hemphill's motions to appeal out of time (one for his sentence and one for his motion to withdraw his plea). The KSC ordered a new plea withdrawal hearing under Kargus v. State and ordered an Ortiz hearing regarding Hemphill’s failure to timely appeal his sentence. Here is a Hutchinson News article reporting the case.

Whether Mr. Hemphill was entitled to late direct appeal under Ortiz

The KSC affirmed the portion of the COA’s decision remanding for an Ortiz hearing regarding the direct appeal of his sentence. The KSC noted that both the district court and appointed counsel had a statutory duty to inform Mr. Hemphill of his right to appeal. The court held that nothing in the record showed that Mr. Hemphill was advised of the right to appeal his sentence, and thus, "a substantial question of fact exists as to whether Hemphill should be allowed a direct appeal out of time pursuant to Ortiz." The court remanded the case for an Ortiz hearing.

New hearing on motion to withdraw plea

The KSC also ordered a new hearing on Mr. Hemphill’s motion to withdraw his plea (reversing the COA), holding: “we cannot agree with the [COA']s treatment of the defendant's attempted appeal from denial of his motion to withdraw his pleas of no contest, nor are we able to resolve this issue on the basis of harmless error.”

The court summarized the facts surrounding the motion to withdraw the plea:

The district court appointed counsel to represent the defendant, held a hearing on these motions on July 23, 2004, and denied relief to the defendant. At the hearing, defendant's appointed counsel told the court that he did not believe that his client's motions had merit and explained why he felt this way. He then requested that the district court allow the defendant to stand up and make his own argument.

Addressing the court, Hemphill stated that he did not know what to argue and stated that his arguments were contained in the motion. When asked by the trial court whether he had anything to add, the defendant replied, "I don't know what I have to say. I really don't have know how to go about this." He then stated, "I thought I was going to have somebody to represent me. I really don't know what to say." There is no mention of the defendant's appellate rights in the hearing transcript.

The court noted that Hemphill was entitled to a new plea withdrawal hearing under Kargus, instead of under Ortiz:

Our review of the arguments and record demonstrate that although the district court did not have a statutory duty to inform Hemphill of his right to appeal the denial of his motion to withdraw his no contest pleas, his attorney's failure to inform him of his right to an appeal denied him the right to that proceeding. We further conclude, based on the record before us, that the attorney appointed to represent the defendant regarding the motion to withdraw his pleas not only failed to inform the defendant of the right to appeal, but completely abandoned his role as counsel during the hearing on that motion. Because the representation provided by defendant's appointed counsel was egregiously ineffective and highly prejudicial, we conclude it is necessary to remand the case for a new hearing on Hemphill's motion to withdraw his pleas.
Right to attorney in post-conviction proceedings

The KSC also reiterated that criminal defendants should be represented by counsel in post-conviction hearings when the state is represented by counsel:

Because this case is being remanded for additional proceedings, however, we emphasize our previous holdings that even though a court need not automatically hold a hearing or appoint counsel in all post-conviction matters, when a hearing is held "at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel." This procedure was not followed during the hearings on the defendant's motions to appeal out of time.

Inconsistent verdicts?

I noted that the Maryland Court of Appeals recently abandoned its long-standing common law precedent allowing inconsistent verdicts in criminal cases. In Price v. State, the Maryland high court acknowledged that many other jurisdictions permit such verdicts and that it had long allowed such verdicts. But it also noted that it had narrowed the acceptance somewhat over the years, for example, by disallowing inconsistent verdicts in bench trials. The Maryland court also relied heavily on the fact that it had disallowed inconsistent verdicts in civil cases:
As previously pointed out, this Court emphasized that “the consistency requirements in criminal cases” should not “be less stringent than the standards we have applied in civil cases,” and that we are “unwilling to afford less protection to the jury trial rights of a criminal defendant, whose very liberty, or even his or her life, is at stake, than to a civil litigant, where, generally, it is money that is at stake.” To uphold, in the present case, the inconsistent jury verdict of guilty on the count charging possession of a firearm during a drug trafficking crime, would be to repudiate the principles recently set forth.

So, what difference does this make in Kansas? None, maybe. I recognize that as recently as 2007, the KSC has reiterated its long standing rule tolerating inconsistent verdicts. See here. Well, like Maryland, Kansas also prohibits inconsistent verdicts in civil cases. See McDonnell v. Music Stand, Inc., 20 Kan. App. 2d 287, 886 P.2d 895 (1994). And Kansas courts have prohibited inconsistent verdicts in bench trials, see State v. Meyer, 17 Kan. App. 2d 59, 832 P.2d 357 (1992), and have reduced charges based on an acquittal in one count that would be inconsistent with the sole aggravating fact in another count, see State v. Davis, 275 Kan. 107, 61 P.3d 701 (2003). Many of the reasons that persuaded the Maryland high court would apply here. And as the Maryland high court expressed, the rule allowing inconsistent verdicts is hardly universal.

Mainly, this is just an example of a trial attorney that, even in the face of long-standing precedent, made an objection anyway. I know that my knee-jerk reaction to an inconsistent verdict would be "So what? That's okay under Kansas law!" But Price's attorney didn't say "So what?" and it made all the difference. Challenges like this are quite difficult when brought for the first time on appeal. So, if you have a weird felony murder case or some other case that results in verdicts that cannot be reconciled, go ahead and move for dismissal! And how many other "long-standing" rules need to be revisited? Any suggestions?

Out with the new, in with the old

I guess I knew that when somebody takes the Colorado Bar Exam, it's probably not to enhance her resume at the ADO.

Sarah Morrison left the ADO late last month to move to Colorado to join a small firm there. A lot of Sarah's family is in the Denver area, so it really wasn't a big surprise. But sad nonetheless. Sarah just got a win in State v. Gore, reversing an aggravated criminal sodomy conviction on statutory speedy trial grounds.

The silver lining is that Sarah's departure made room for the return of Heather Cessna. Heather left in December 2006 (as blogged about here) and has been in private practice about a year and a half. But as many people (myself included) learn, practicing law at the ADO is a pretty good gig (assuming you like sitting in an office, reading transcripts, researching, and writing all day). For the few, the proud, the geeky, it's just write. So, welcome back Heather. (Ironically, she moved back into the exact same office she left 18 months ago!).

Thursday, July 03, 2008

Murder conviction reversed for failure to give lesser

Janine Cox won in State v. Scaife, No. 97,183 (Kan. July 3, 2008), getting a new trial in a Wyandotte County premeditated murder case (the KSC affirmed convictions for attempted first-degree murder and aggravated robbery). The prosecution was a "combined" premeditated/felony murder case. The district court wouldn't give a lesser for second-degree because of the felony murder allegation.

The district court did note that if the sole charge in the complaint had been premeditated first-degree murder, a lesser included instruction on second-degree murder would have been appropriate. We need not discuss whether lesser included instructions were appropriate on the alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the evidence introduced against the defendant is wholly circumstantial and open to an inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that lesser degree of homicide.

The State suggests that Ross' eyewitness testimony provided direct evidence of premeditation. However, nothing that Ross saw or heard directly proves the fact which is in issue, i.e., premeditation. One must take the additional step of drawing inferences from the eyewitness' description of what Scaife did and said (or did not say) to speculate as to what Scaife must have been thinking and how long he had been thinking it before pulling the trigger. Although admittedly infrequent, direct evidence of premeditation does exist in some cases. An associate might testify that the defendant shared his or her plans to kill the victim or a cellmate might relate how the defendant bragged about his or her daring deed. Sometimes, a defendant will have previously threatened to kill the particular victim. A shooter might declare, immediately prior to pulling the trigger, "This is for cheating me out of my money (or drugs)." However, we need not quibble about whether direct evidence of premeditation can ever exist. Suffice it to say that in this case, there was no direct evidence of premeditation.

Nevertheless, premeditation may be, and is most often, proved by circumstantial evidence. As we determined above, the circumstances of this case could be sufficient to prove premeditation. On the other hand, Scaife's sudden, unprovoked, and inexplicable shooting of Thompson, performed without uttering a word, could indicate to a rational jury that the killing was nothing more than an instantaneous, intentional act.

So the majority says Mr. Scaife gets a new trial on premeditated first-degree murder. This is good language for lesser-included offense instruction in other contexts as well.

As an aside, the majority also made an interesting note in response to the state's argument that the instructions would just be too confusing:

The State makes a practical argument that the giving of lesser included offense instructions where first-degree murder is charged and instructed on the alternative theories of premeditation and felony murder would be too confusing for the jury. One might perceive that any confusion in that circumstance emanates from the curious rule that permits a jury to convict on a combination of the premeditated and felony-murder theories. Nevertheless, while drafting an appropriate jury instruction may require some careful consideration, that fact cannot dictate against giving a criminal defendant the benefit of lesser included offense instructions, i.e., to allow the jury to convict a defendant of the crime actually committed.
We have been arguing for a while that the "combined theory" is antiquated and certainly doesn't fit the strict elements type analysis that we have gotten in other lesser-included offense and multiplicity cases. Keep objecting to this type of prosecution. There is no reason these offenses can't be charged and prosecuted in the alternative, eliminating any possible confusion.

[Update: the state filed a motion for rehearing on July 23, 2008.]

[Further update: the KSC denied the state's motion for reheaing on September 24, 2008.]

Involuntary statements

Pantaleon Florez, Jr. won in State v. Karin Morton, No. 97,848 (Kan. July 3, 2008), affirming Judge James Smith's suppression of statements in a Franklin County making a false information prosecution. The KSC affirmed the COA's holding that Ms. Morton was not in custody and therefore there was no Miranda violation. But the KSC went on to analyze what the COA didn't, whether the statements were voluntary:

The agent's undisclosed purpose for the interview, Morton's subjective beliefs about the civil nature of the interview, and the agent's comment about the need for an attorney are not relevant to the issue of whether Morton was "in custody" for purposes of Miranda. These circumstances may nevertheless be relevant to a claim that her statements were inadmissible under the due process voluntariness standard. In this case, it appears the district court determined that the agent's conduct was fundamentally unfair and, thus, Morton's statements were not voluntary.
. . . .
In this case, the district court found the agent's conduct to be unfair because, while Morton believed the criminal investigation had ended with no charges to be filed, the purpose of the agent's interview was to further the criminal investigation and encourage the filing of charges by providing additional information to the county attorney. Additionally, Morton argues that the agent's comment that she did not need an attorney because it was not that kind of interview was fundamentally unfair. Consequently, the issue concerns the extent to which the officer's conduct was unfair and, thus, rendered Morton's statements involuntary.
We have held that false statements to a suspect about the strength of the evidence do not, by themselves, render the suspect's confession involuntary. Rather, they must be viewed in conjunction with the totality of the circumstances surrounding the confession to determine whether it was voluntarily made.
While telling a suspect false information about the evidence against the suspect, standing alone, does not render a confession involuntary, giving the suspect false or misleading information about the law is more problematic.
. . . .
[The agent], however, did not tell Morton she had no right to have an attorney present, he told her she did not need an attorney. In asking the agent whether she needed a lawyer present, Morton was clearly trying to determine whether the interview was part of the criminal investigation. Of course, the agent knew it was. We note that, as a government agent for an agency with both civil and criminal investigative power, the criminal investigatory purpose of the agent's interview was not obvious in the way an interview conducted by police officers and detectives is. Under these circumstances, we conclude the agent's response to Morton's question was an affirmative misrepresentation about the true nature of the interview.
. . . .
All other aspects of the circumstances surrounding this interview indicate that Morton's statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time. However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known [the agent] was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent's status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent's conduct, Morton's participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton's statements were involuntary and, thus, inadmissible.
So when officers step over the line and mislead suspects regarding the law, that's too far, even when there are a lot of other facts that would support a voluntariness finding. [Of course, I think misleading on evidence should be just as problematic--why should law enforcement be the only people who have a license to defraud?]

[Update: the state filed a petition for writ of certiorari on September 26, 2008. Here is the SCOTUS docket.]

[Further update: apparently, Ms. Morton filed her own pro se brief in opposition to the state's petition. Although a Topeka law firm was listed as counsel for a brief period, she is listed on the brief pro se and the law firm is no longer listed on the court docket. The case is set on the SCOTUS docket for January 9, 2008.]

[Further update: the SCOTUS denied the state's petition on January 12, 2009.]

Wednesday, July 02, 2008

District judge accused of sexual misconduct

Here is a Lawrence Journal-World article reporting that District Judge Frederick Stewart, from Leavenworth County is facing disciplinary charges stemming from alleged sexual misconduct with a member of his staff.

No true bill

Here is a Wichita Eagle article reporting that the grand jury investigating abortion crimes in Sedgwick County returned no true bill. Remember that a Johnson County grand jury already reached a similar result earlier this year (as blogged about here). I wonder if this will temper the ad hoc grand jury movement we have seen in the last couple of years. Probably not. The number of signatures needed is pretty low and not difficult for special interests to meet.