Monday, September 29, 2008

Fifteen apply for district court in 1st District

Here is the news release announcing that fifteen lawyers, including several prosecutors, applied for the impending vacancies in the First Judicial District covering Leavenworth and Atchison Counties. If you have any input on these attorneys, be sure to get it to the Nominating Commission as soon as possible.

Saturday, September 27, 2008

Reversal based on improper shackling before jury

Washburn student intern Patrick Turner and I won in State v. Anderson, No. 96,602 (Kan. App. Sept. 26, 2008), remanding a Cloud County criminal threat prosecution for a new trial. The only issue addressed in the opinion was the district court's refusal to allow Mr. Anderson to appear at his jury trial without leg shackles. Just prior to trial, defense counsel asked that they be removed. The district court said that the deputy wanted them on, so they should stay on. Defense counsel clarified that the district court was not finding that Mr. Anderson was a flight risk or that he had been disruptive, the district court's order was just based on the deputy's policy.

That made a pretty easy decision for the COA:

Here, it is impossible to review this case using the abuse of discretion standard since the district court failed to exercise its discretion. It simply deferred to the wishes of the jailer. The nature of judicial discretion was discussed in State v. Foren, 78 Kan. 654, 658-59, 97 P. 791 (1908): "Discretion is the freedom to act according to one's judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence–to act upon fair judicial consideration, and not arbitrarily."

Rather than exercising judicial discretion in considering Anderson's request that the shackles be removed, the district court deferred to the jailer and let him decide. The jailer's decision became the court's decision, without analysis or application of the principles of law to the facts presented. As such, the district court clearly abused its discretion.

The State acknowledges that the shackles were apparent to the jurors deciding Anderson's innocence or guilt. Anderson was charged with criminal threat, that is, that he threatened violence with the intent to terrorize others. The presence of shackles clearly sent the message to the jury that here is a violent and dangerous man. The discretion to shackle Anderson throughout the trial was exercised without any proper analysis to support it. Under these circumstances, the use of shackles was inherently prejudicial.

I guess that's why district judges get paid the big bucks--to make decisions.

[Update: the state did not file a PR and the mandate issued on October 30, 2008.]

That's why you need to confront

I saw a couple of related posts this morning. First was this nice post on the Kansas Federal Defender blog reporting on the closing of a Detroit police lab for, at least, incompetence. Professor Friedman also commented on the closure in this post on the Confrontation Blog, noting that it provides ample evidence of the need for cross-examination of what prosecutors want to call "routine" lab reports.

Friday, September 26, 2008

He looks pretty alive to me

Washburn student intern Laurie Blanton and I won in State v. Shafer, No. 98,016 (Kan. App. Sept. 26, 2008)(unpublished), reversing a Saline County possession conviction. Officers were called to investigate Mr. Shafer who had been reported slumped over in his vehicle in a driveway. Officers woke up Mr. Shafer who indicated that he was fine and had merely locked himself out of his house and did not want to wake people during the night. Even though Mr. Shafer was clearly okay, police detained Mr. Shafer by taking his identification, eventually leading to a search in which officers say they find drugs. The state argued that the continuing encounter was consensual; the COA disagreed:
Even if we were to concede that Shafer was not "stopped" or "seized" at the outset of this encounter, there is no question that he must be considered "seized" when the officer requested and retained his drivers' license. Generally, an officer's retention of a defendant's documentation is significant because it indicates the defendant did not reasonably feel free to terminate the encounter. Therefore, when the driver has relinquished his license to an officer, the State cannot rely on the defendant's consent to justify further detention, questioning, or a search. We decline to anyalze this encounter as "consensual" after the officer requested and retained Shafer's license.
Because the officer's actions exceeded the very limited scope of a welfare check, the majority held that the officer violated the Fourth Amendment and reversed.

Judge Leben dissented from the Fourth Amendment ruling, but concurred with reversal and remand because the record did not include a valid waiver of Mr. Shafer's right to a jury trial.

[Update: the state filed a PR on October 24, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on April 10, 2009.]

Thursday, September 25, 2008

New district judge in Johnson County

Here is the governor's press release announcing the appointment of Thomas Kelly Ryan to the district bench in the Tenth Judicial Circuit. The press release indicates that Ryan practices in the area of criminal defense, so some of you may know him.

Tuesday, September 16, 2008

Nominating commission gets busy to fill spot on KSC

Here is a news release announcing that the Supreme Court Nominating Commission is accepting nominations to fill the vacancy on the Kansas Supreme Court that will result from Chief Justice McFarland's retirement this upcoming January. Applications are due in the Clerk's office October 17, 2008.

Two vacancies in First

Here is a news release reporting that the First District Judicial Nominating Commission (covering Leavenworth and Atchison Counties) will be busy with the impending retirement of Judge Lacey and Judge Stewart. Nominations are due September 25, 2008, so if you are interested in being a district judge, or know someone that should be a district judge, get busy!

Short list in Johnson County

Here is the news release announcing that the Johnson County Judicial Nominating Commission forwarded three names to the governor to fill the district judge position being vacated by Judge Isenhour. The nominees are Thomas Kelly Ryan, Neil Foth, and magistrate judge James Phelan. If you have comments about these nominees, pass them on to the governor!

Monday, September 15, 2008

Long road to IAC finding

Alice White at the KU Defender Project won a new trial in Saleem v. State, No. 06-CR-1843 (K. Dist. Ct. Sept. 5, 2008). Mr. Saleem was convicted of murder in 1997 and lost his direct appeal in 1999 (here). Mr. Saleem filed an initial 1507 petition, which was denied in 2000. Mr. Saleem next filed a 2254 petiton in federal court, which was stayed pending filing another 1507 petition to exhaust federal claims. The Defender Project filed that petiton in 2004 and it was initially summarily denied. In April 2007, the COA remanded for an evidentiary hearing and last week, Judge Leuenberger granted a new trial.

Mr. Saleem based his IAC claim on defense counsel's failure to object to admission of a videotape that included prejudicial statements about prior bad acts. In light of defense counsel's testimony that the failure to object was an oversight, the district court rejected the state's claim that the decision was strategic:

It is preposterous to imagine any attorney who is providing the standard of performance guaranteed by the Sixth Amendment to advance prior bad acts of an alleged shooting as trial strategy in a murder case.
So more than ten years after initial conviction, Mr. Saleem gets a chance at a fair trial.

As a note of interest, the initial KSC case was one of the first times where we saw courts struggle over the difference (or lack thereof) between first and second degree murder. Justice Allegrucci described the problem in his concurring opinion:
By defining "premeditated" as simply meaning "to have thought over the matter beforehand," the majority has effectively converted second-degree murder to first-degree murder. "Intentionally" is defined as meaning "conduct that is purposeful and willful and not accidental. Intentional includes the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose.'" PIK Crim. 3d 56.04(d). How does one intentionally kill another human being without thinking about it beforehand? The jury is also instructed that if it does not find the defendant guilty of first-degree murder, then it should consider the lesser offense of second-degree murder. It is difficult to comprehend how a jury so instructed would ever consider the lesser included offense of second-degree murder.

As noted in the majority opinion, this court has used words such as "plan," "contrive," and "schemed beforehand" to define premeditation. This court has required that a defendant not only think it over beforehand, but also to come to the conclusion that he or she would kill the victim and then do so. The majority, by approving PIK Crim. 3d 56.04(b), has, in my opinion, essentially repealed 21-3402(a).

Although the PIK instruction has been modified, this problem continues to confound the KSC, as demonstrated by Justice Johnson's recent concurrning opinion in State v. Warledo, No. 97,759 (Kan. Aug. 8, 2008):
What I cannot grasp is the concept that one can have thought the matter over beforehand, when the intent to kill is formed during the course of committing the murderous act, e.g. while strangling or stomping the victim. In other words, in my mind, "beforehand" means prior to commencing the death-causing act, rather than during said act but sometime prior to its effecting the death. If we merge the concept that the killer must have thought over the matter beforehand, as in premeditated first-degree murder, with the concept that a killer must have formed the intent to kill prior to the victim's death, as in intentional second-degree murder, we have rendered the premeditation element redundant and opened the door to defendant's same elements argument.

Accordingly, I view portions of the closing argument to have been an incorrect statement of the law, especially where the prosecutor argued that premeditation could be formed "between the first and second stomps, between the second and third stomps, at any point during the stomping."
So keep litigating that point. Ask for instructions that require more for premeditation.

[Update: the state filed an appeal of this decision--appeal no. 101629.]

Saturday, September 13, 2008

Juvenile adjudication doesn't trigger persistent sex offender penalty

Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. App. Sept. 5, 2008), reversing a Sedgwick county enhanced persistent sex offender sentence. The COA reviewed the statutory scheme and concluded that it only applies to convictions, not juvenile adjudications:
K.S.A. 21-4710(a) has no explicit application to anything but figuring the criminal-history score, a separate endeavor from classifying a person as a persistent sex offender. In K.S.A. 21-4710(a), the legislature certainly has carefully defined which past convictions and adjudications count in calculating a criminal-history score. But the past cases we have cited note how carefully the statutes for criminal sentencing have been constructed. For the reasons we have explained, we cannot add language to K.S.A. 21-4704(j) that is not present there--and the statute simply makes no reference at all to juvenile adjudications or, for that matter, to K.S.A. 21-4710(a).
The COA acknowledged that this result was different than a previous unpublished COA case, but was persuaded by the clear statutory language.

[Update: the state filed a PR on October 6, 2008.]

[Further update: the state granted the state's PR on January 22, 2009. The case will likely be argued in May or next September.]

[Further update: the KSC affirmed the COA on June 19, 2009. Here is blog coverage of decision.]

A little cash in your pocket isn't probable cause

Kristen Patty and Kurt Kerns won in State v. Fitzgerald, No. 95812 (Kan. Sept. 12, 2008), reversing a Sedgwick County possession with intent convicition. The case stemmed from a valid vehicle stop:
Fitzgerald was pulled over while traveling by himself in his girlfriend's truck in the late afternoon. He had run a stop sign. Officer R.A. Thatcher discovered that Fitzgerald's driver's license was suspended. Fitzgerald told Thatcher that he had already called his girlfriend to come to the scene and pick up his truck, and he was completely cooperative while Thatcher placed him under arrest. Once Fitzgerald was cuffed and patted down, Thatcher found $2,673 in cash, which Thatcher described as "a mini cash register," when going through Fitzgerald's pockets. This discovery prompted the officer to ask Fitzgerald about his employment. Fitzgerald replied that he earned $10 an hour at a car detailing shop and that the money in his pockets was for rent and bills.
The officer then returned to the girlfriend's truck with the intention of searching it for drug evidence. He did so and found methamphetamine, digital scales, and several small plastic bags inside.

The KSC reviewed the six circumstances the state asserted provided probable cause but found them wanting:
When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher's initial search of the truck. Of the factors it cites, most are neutral or helpful to the defense, tending to diffuse suspicion rather than enhance it. Those factors that do contribute to probable cause are weak. The district court should not have relied on the probable cause plus exigent circumstances exception to the warrant requirement to admit the evidence derived from the initial search of the truck.

Here is a Wichita Eagle article reporting on the KSC case.

Friday, September 12, 2008

Acquittal in Reno County kidnapping case

Sarah Sweet-McKinnon won an aquittal in State v. Curtis, ending a Reno County kidnapping and aggravated burglary case. Here is the Hutch News article reportingon the case. Nice job Sarah!

Thursday, September 11, 2008

Mental Health Courts

Ron Sylvester, at What the Judge Ate for Breakfast, reports that the City of Wichita has received federal funding for a mental health court.

According to Hon. Matthew D’Emic, there were over 150 mental health courts in the U.S. as of last fall. Here is his article analyzing the experiment of a mental health court in Brooklyn, NY.

Tuesday, September 09, 2008

October 2008 KSC docket

Here are the criminal cases on the KSC docket for October 14-17, 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.

October 14, 2008-Tuesday-a.m.

State v. Jason Overstreet, No. 95,682 (Sedgwick)
Direct appeal (petiton for review); Attempted first degree murder
Michelle Davis
[Reversed and remanded; Davis; Jan. 30, 2009]
  1. Improper instruction and argument on aiding and abetting
  2. Improper conduct of jury after case submitted
  3. Ineffective assistance of counsel
  4. Multiplicity of alternative charges
State v. Carl Howard, No. 98,976 (Sedgwick)
Motion to correct illegal sentence; Aggravated kidnapping
Carl Maughan
[Affirmed; Nuss; Dec. 19, 2008]
  1. Improper summary denial of motion to correct illegal sentence
State v. Robert Phillips, No. 96,754 (Sedgwick)
State v. Alan Wenzel, No. 97,548 (Reno)
Direct appeals (consolidated) (petitions for review)
Carl Folsom, III & Christina M. Waugh
[Affirmed; Luckert; June 19, 2009]

  1. Failure to announce court costs and other fees at sentencing
State v. David Woodward, No. 99,280 (Sedgwick)
Motion to vacate plea and dismiss indictment
Carl Maughan
[Affirmed; Johnson; March 6, 2009]
  1. Constructive breach of plea agreement
October 14, 2008-Tuesday-p.m.

State v. Gregory Walls, No. 98,260 (Shawnee)
Motion to correct illegal sentence
Johathan B. Phelps (argue); B. Joyce Yeager (brief)
[Affirmed; per curiam; Dec. 5, 2008]
  1. Speedy trial violation
State v. Robert Jones, Jr., No. 97,992 (Lyon)
Direct appeal (petition for review); Sale
Heather Cessna (argue); Sarah Morrison (brief)
[Voluntary dismissal Oct. 14, 2008]
  1. Failure to consider Labette
State v. Larry Bee, Jr., No. 97,677 (Labette)
Probation violation appeal (petition for review); Possession
Rachel Pickering
[Affirmed; Rosen; May, 2009]

  1. Failure to consider Labette
October 15, 2008-Wednesday-a.m.

State v. Jay Decker, No. 98,226 (Douglas)
Direct appeal; First degree murder
Kari Nelson
[Affirmed; Johnson; March 13, 2009]
  1. Gruesome photos
  2. Improper admission of prior bad acts
  3. Failure to allow defense to question witness
  4. Prosecutorial misconduct
  5. Failure to give accomplice instruction
  6. Cumulative error
State v. Galen Youngblood, No. 96,850 (Harvey)
Direct appeal (petition for reveiw); Possession
Michelle Davis
[Reversed and remanded; Johnson; May 8, 2009]
  1. Improper enhancement based on invalid prior conviction
October 15, 2008-Wednesday-p.m.

State v. Ryan Schultz, No. 98,727 (Shawnee)
State appeal (petition for review)
Thomas Lemon
[Aff/Rvd in part; Beier; July 24, 2009]
  1. Suppression of statements
October 16, 2008-Thursday-a.m.

State v. Walter Anderson, No. 97,420 (Wyandotte)
Direct appeal; First degree murder
Michael J. Bartee
[Affirmed; Nuss; Dec. 5, 2008]

  1. Failure to give compulsion instruction
  2. Improper admission of dying declarations
  3. Improper instruction on presumption of innocence
State v. Merle Vaughn, No. 98,840 (Wyandotte)
State appeal (transfer); Conspiracy to commit official misconduct
Edward Gillette
[Reversed and remanded; Davis; Jan. 30, 2009]

  1. Speedy trial violation
Christopher Trotter v. State, No. 98,563 (Wyandotte)
K.S.A. 60-1507 appeal; Capital murder
Rebecca E. Woodman
[Aff'd in part, rev'd in part; Luckert; Jan. 30, 2009]

  1. Multiplicity between capital murder and first degree murder
State v. Carl Cofield, No. 98,133 (Wyandotte)
Direct appeal; First degree murder
Rachel Pickering
[Affirmed; Rosen; March 27, 2009]

  1. Suppression of statements
  2. Improper aiding and abetting instruction
  3. Improper Allen type instructions
  4. Improper instructon on burden of proof
De Andre Harris v. State, No. 98,845 (Wyandotte)
K.S.A. 60-1507 appeal (transfer); First degree murder
Christopher Cuevas (argue); B. Joyce Yeager (brief)
[Affirmed; Rosen; March 27, 2009]

  1. Ineffective assistance of counsel

Monday, September 08, 2008

PD runs for US Senate!

Well, at the risk of being accused of self-promotion, I did want to announce to all blog readers that I will be on the ballot this year as the Libertarian candidate for US Senate in Kansas.

For the past seven years, I have been more and more frustrated with the current administration's gutting of the Rule of Law. The president acts as if he is above international and domestic law and even had his department of justice draft memos to support this audacious claim. I can't believe that my president thinks that torture is okay. And I can't believe that my president thinks that spying on his own citizens is okay. The very Constitutional and human rights that the president routinely ignores are the very things that should make the United States stand out in the world. "Liberty and Justice for All" aren't just words--they are the concepts that make the United States a great country. This administration has undercut those concepts for eight years and I have never heard my current US Senator criticize or work to prevent such decay of our fundamental freedoms. It's not surprising considering that president helped my current US Senator raise millions of dollars for his re-election campaign.

So, I decided to try to speak out and am on the ballot. I know the obstacles and hurdles involved in such a run. Maybe it's that PD mentality at work. I know I am outgunned in resources and probably won't win. But that's not a reason to give up. I want to vote for a candidate this year that is not a long-time Washington insider funded by special interests and I want to vote for a candidate who is committed to protecting the Rule of Law. I am that candidate.

Want to help? See my web site at You can contact me through the address listed on that site: I will not have the millions of dollars that my opponents have from special interests, but if you would like to encourage a voice for the Rule of Law this year, please consider helping. As they say on public radio/TV, any contribution would help. I will have some yard signs soon and if you would like one, e-mail me. Or just get the word out though your e-mail and word of mouth. There is a choice this year. But I need help letting voters know.

Thanks and get out the vote this year!

[BTW: before all you government watchdogs get frothing, I have always made clear that this blog is a personal blog. It is not supported or approved by a state agency. I am writing this entry on my own computer using my own Internet connection on my own time. I will leave it to Carl to decide whether there are any other developments in this race that are blog-worthy!]

Tuesday, September 02, 2008

Speedy sentencing right

I saw this blog post on Sentencing Law and Policy reporting that the Delaware Supreme Court vacated a conviction based on a constitutional speedy trial violation stemming from a delayed sentencing proceeding. We have previously blogged about such a claim here and I have filed a sentencing issue based on the Speedy Trial Clause in the last year. Where there are big delays in sentencing that are not the fault of the defendant, be sure to think about a Sixth Amendment objection. Especially where you can show prejudice (like additional criminal history).

Couple of cert petitions filed

We filed a couple of cert petitions last week.

The first was Denny v. Kansas, seeking review of (1) the prior conviction exception left intact after Apprendi and (2) whether juvenile adjudications fall into the prior conviction exception. We have filed a couple dozen cert petitions on these issues since Apprendi in 2000, and although the SCOTUS has ordered responses in a couple of them, none have been granted. The second issue in particular is a good cert issue with a huge split among state jurisdictions and federal circuits and between state and federal jurisdictions. But so far the SCOTUS hasn't seen fit to resolve the important question.

The second petition, filed by Carl and I together, is Green v. Kansas, seeking guidance on an important post-Apprendi question: can states use non-statutory aggravating factors to support upward durational depatures? You may remember that the KSC accurately presaged Blakely on the application of Apprendi to upward durational depature findings. After State v. Gould, the Kansas Legislature enacted an upward durational departure scheme and we are now seeing some upward durational depature trials. But many of these trials are based on allegations of non-statutory aggravating factors. The question presented in this case is whether the state can base an upward durational departure on such non-statutory factors.

Justice Hurwitz of the Arizona Supreme Court recognized the potential flaw in using such "catch-all" provisions as aggravators in his concurring opinion in State v. Price:
But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the "catch-all" is the only factor that makes a defendant eligible for a sentence beyond the presumptive term. In that situation, one of the elements of the aggravated crime under former A.R.S. § 13-702(C)(18) is effectively "[a]ny other factor the court deems appropriate to the ends of justice." Under the current "catch-all," A.R.S. § 13-702 (C)(24), the "functional element" of the aggravated crime in such a case is "[a]ny other factor that the state alleges is relevant to the defendant’s character, background or to the nature or the circumstances of the offense."
A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the "aggravated crime," of precisely what is proscribed under the critical "catch-all" element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus "anything else the court or the state may someday later find relevant."
A statute that fails to provide fair notice of precisely what acts are forbidden "violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). When criminal penalties are at issue, "[a]ll are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Moreover, by failing to provide an explicit standard for a sentencing judge, the "catch-all" element would also seem to offend due process by allowing for arbitrary and discriminatory enforcement. See Smith v. Goguen, 415 U.S. 566, 575 (1974) ("Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections."); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) ("A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . . .").
It is difficult for me to see how an element of a crime as loosely defined as the "catch-all" aggravator can satisfy these basic elements of due process when used as the only "functional element of a greater offense."
This issue is likely to be recurring in jurisdictions that have reformed their determinate sentencing schemes to conform with Apprendi and Blakely. Of course the odds of cert being granted in any given case are long, but you should be sure to make a Due Process and Sixth Amendment objection to any use of non-statutory aggravating factors in upward durational depature proceedings.

[Update: although the state--as usual--waived its response in both cases, the SCOTUS requested a response from the state in Green, due on October 22, 2008. Here is the order. That does not necessarily indicate much interest. But on the other hand, they would not grant the petition without allowing a response, so it is at least one hurdle overcome. No response requested in Denny, it is set for conference on October 10, 2008.]

[Update: the SCOTUS denied the petition in Denny on October 14, 2008.]

[Further update: the SCOTUS denied the petition in Green on November 17, 2008. But there are more cases coming down the pipeline, so keep raising this issue.]