Saturday, November 29, 2008
I'm glad the article points out some of the non-salary discrepancies as well. By statute, prosecutors get a slice of every court cost that ends up getting paid by defendants for a "training fund." Public defenders get squat. My office has frequently taken other state agencies' throw-away furniture because it's better quality than what we have.
As a matter of constitutional law and legal ethics, quality representation for the poor is not negotiable. If the state doesn't want to pay for indigent defense, it needs to prosecute fewer people (or at least fewer poor people).
The story was noted on Public Defender Stuff here and on Arbitrary and Capricious here. And very flattering comments at Capital Defense Weekly here. Wow, these are, like, all the big names in public defense blogging! Thanks!
Courts in some other jurisdictions have concluded that a person never has a reasonable expectation of privacy in trash left out for collection by a third party. These courts have gone well beyond the holding and rationale of [California v. Greenwood, 486 U.S. 35 (1988)], which emphasized the importance of public accessibility to the trash left out for collection. Given the importance of public accessibility to the rationale of both Greenwood and [State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007)], we believe that those cases provide the most helpful guidance in reaching the correct result in Hoffman's case. His trash was in no way accessible to the public. Given his rural setting, we conclude that the mere fact that he allowed a third party to haul his trash away did not eliminate his reasonable expectation of privacy in that trash. The district court properly held that the trash pulls at Hoffman's dumpster violated the Fourth Amendment, and that violation requires that the evidence be suppressed because it was obtained by a warrant based on the illegal trash pulls.It's an interesting question. I bet if a person went through somebody's trash and pulled out financial information and used it fraudulently, the state wouldn't (and shouldn't) hesistate to prosecute that person. No one would say that the person who put that financial information had authorized the use of that information.
Additional kudos to Cal Williams, who won this motion at the district court!
[Update: the AG entered his appearance and filed a PR on December 18, 2008.]
[Further update: the KSC denied the state's PR and the mandate issued on April 10, 2009.]
Friday, November 28, 2008
According to Ruane, Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and, based on his studies, has determined the Intoxilyzer 5000 does not effectively test the blood-alcohol content of black men.
the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men’s test results vary from the sobriety standard set by the device.
Ruane also stated:
Of course, the problems with these machines have been well documented. This is just another possible example. Thanks to apublicdefender for the tip.
When you combine the biases of the machine for the racial factor, the lung capacity, the conversion from a breath sample to a blood reading, and take into account a person’s natural partition ratio, you can see a possible breath test reading of a person at 0.08 that may actually be as low as .03.
That is a significant overstatement in the results. As you get further away from the standard, the overstatement grows larger in number. The machine treats every person the same, and that may cause it to discriminate against certain segments of the population. In this case, the purported results as mentioned in the article do not match the physical evidence. This was why we started looking for other explanations.
Tuesday, November 25, 2008
The State fails to show why K.S.A. 21-3110's definition of solicitation "clearly requires a different meaning" when applied to indecent solicitation of a child. We see no basis upon which to conclude that the legislature, through its clearly expressed statutory language, intended solicitation of a child to be different from solicitation in any other context. Solicitation is specifically identified as an anticipatory crime in our Kansas Criminal Code.The COA notes that the legislature has created a new offense of electronic solicitation, which may cover these circumstances, but it was not in effect at the time of the alleged offense. The newly-created offense may mean that this case involves an issue of last impression.
[Update: the state did not file a PR and the mandate issued January 5, 2009.]
Saturday, November 22, 2008
Friday, November 21, 2008
Kudos to Dan Monnat and Kurt Kerns for persevering on this!
Here is the Hutch News article reporting on the dismissal. Here is the Wichita Eagle reporting on the dismissal.
The prosecutor's examination questions to witnesses and remarks in closing argument to the jury, which stated the prosecutor's personal opinion of witnesses' credibility; suggested to the jury that it should abandon its common sense when considering these kinds of cases; expressed the prosecutor's personal belief on matters outside the evidence; vouched for the State of Kansas; referred to matters not in evidence; vouched for the credibility of the State's witness; solicited testimony from the defendant on the credibility of another witness; buttressed the credibility of the State's witness; and appealed to the passion and prejudice of the jury, were improper and constituted prejudicial error because the questions and remarks called the jurors' attention to matters that would not have been proper for them to consider in arriving at their verdict. Accordingly, we reverse and remand for a new trial.Here we are, eight years after Pabst, still with these kinds of problems. I know some prosecutors who chastise the ADO (and other defense attorneys) for continuing to raise prosecutorial misconduct issues. In fact, overall, I think the majority of prosecutors have learned better practices, but these cases are still out there and plenty of them.
[Update: the state did not file a PR and the mandate issued on January 5, 2009.]
Friday, November 14, 2008
The governor has a lot of pending judicial appointments at a time when there is a lot of speculation whether she will even be governor 60 days from now!
We need not repeat the rest of our Kargus discussion here. Suffice it to say that the decision exposed the possibility of analytical tension and confusing overlap among Ortiz, Strickland, and Flores-Ortega. That possibility, and the rising flood of Ortiz-based arguments we observe in cases coming before our Court of Appeals and in petitions for review addressed to this court–many seeking extremely fact-specific and thus not especially useful rulings on exactly which information about direct appeal must be imparted, and by whom, and when, and on whether defendant's oral or written statements or behavior constitute a waiver, and on what measures defense attorneys are required to take to preserve their clients' appeal rights when there has been no specific direction from those clients–motivate us to attempt clarification and, to the extent necessary, reconciliation of the controlling and persuasive law on the permissibility of late criminal appeals in Kansas.
To begin, it is important to recognize what Ortiz did not do. It did not endow criminal defendants with any additional constitutional rights. It did not impose affirmative duties on counsel or the court. It did not set up new requirements that must be met to prevent a late appeal. Arguments based on any of these approaches twist its intention and application.
Ortiz merely recognized the basic principle that a criminal defendant enjoys certain procedural due process protections, not only at trial or plea but also on appeal. These protections form the parameters and fill in the content of fundamental fairness; when they are ignored or violated, a remedy is necessary. We set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.
We place conscious emphasis on "exceptional." Even after Ortiz, even in the glaring light emitted by its recent superstardom, the general rule remains that timely filing of a notice of appeal is indispensable and jurisdictional.
. . . .
It is evident to us today that what have come to be known in Kansas as the three "Ortiz exceptions" are grounded not only in fundamental fairness (here, procedural due process) but in the Sixth Amendment right to counsel. The first of the exceptions–applicable when a defendant was not informed of the right to appeal–goes to procedural due process alone. The second and third exceptions–applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal–go to the right of counsel and effectiveness of counsel. We have attempted to take the distinction in the constitutional bases of the exceptions into account in developing the following rules.
The first exception (not informed of the right to appeal) is based in the Due Process Clause and requires advice regarding the right to appeal, the time limits for an appeal, and the right to appointment of counsel on appeal. The defendant has the burden to show that he/she wasn't informed in the sentencing transcript. If the defendant meets that burden, the burden shifts to the state to show that the defendant had the missing information by another source, perhaps advice of counsel or a written plea agreement. If the defendant was not fully advised of the right to appeal, he/she still has to show that he/she would have appealed had he been informed of the right.
The second exception (not provided an attorney to appeal) is based in the Sixth Amendment right to counsel and only applies to indigent persons. The defendant has the burden to show that he/she timely sought an attorney to appeal and would have instructed counsel to appeal had counsel been appointed.
The third exception (provided an attorney that failed to perfect appeal), is also based in the Sixth Amendment right to counsel, but applies to all criminal defendants. The KSC applies the test from Roe v. Flores-Ortega, 528 U.S. 470, 470-72 (2000). Roe says that (1) if client explicitly tells attorney to appeal and attorney fails to appeal, ineffective assistance of counsel, (2) if client explictly tells attorney not to appeal and attorney does not appeal, no ineffective assistance of counsel, period; (3) if attorney does not receive explicit direction from client regarding appeal, court must make findings whether performance deficient. If client can make this showing, he/she gets a late appeal. He/she does not have to show that he would have prevailed on appeal.
Because the record was clear that Mr. Patton asked for an appeal and his attorney failed to perfect it, the KSC applied the third exception and held that he was entitled to an appeal (and application of McAdam).
For the most part, these refinements should be useful. As many of you know, I have been involved in a lot of Ortiz remands and have often wondered about the burden of proof and exactly what had to be proved under Ortiz. This decision will provide a lot of guidance that way. The KSC did not discuss the effect (if any) of the regulations governing post-trial responsibilities of appointed trial counsel (i.e. that appointed counsel must file a notice of appeal unless he/she has a written waiver of appeal). And the KSC did not expound on what might suffice for proof that a defendant would have appealed had he/she been properly advised of the right to appeal. But the procedure and substance certainly are a lot clearer today than yesterday.
Tuesday, November 11, 2008
[Update: I was told by a little bird that the attorney was none other than SuperLawyer Tom Bartee!]
Friday, November 07, 2008
Wednesday, November 05, 2008
As far as I can tell, all judges and justices that were up for retention were approved by wide margins.
And here is a Kansas City Star article reporting that a proposal to move from appointed judges to partisan election of judges in Johnson County failed by a wide margin.
[Update: here is an entry on What the Judge Ate for Breakfast reporting that there will be a recount in the Wilbert/Lanstson race]