Wednesday, November 25, 2009

Governor's budget cuts hourly rate for appointed counsel

The governor recently released his plan to balance the state's budget for fiscal year 2010. The expenditure changes for BIDS are described as follows:
Add $173,163 for Assigned Counsel caseload; then reduce $686,456 to reduce Assigned Counsel hourly rate from $80 to $62.
Here is a press release from the governor's office discussing the budget plan.

Here is a Hutch News article reporting on the cut-backs and reactions to them.

Maybe you shouldn't assume the officer is telling the truth

I don't usually blog on license revocation proceedings, but I thought this was a pretty remarkable decision that Roger L. Falk won in Baconrind v. KDOR, with Judge Wheeler vacating an administrative license revocation based on failure to allow independent testing. The main issue was a factual dispute whether Mr. Baconrind had willfully refused testing and/or had requested independent testing. Judge Wheeler was fairly blunt in his comments about the trooper and the KDOR attorney:
Before making a final analysis, comment on the manner of presentation of the evidence is necessary. The Kansas Department of Revenue's counsel stipulated to the admission of Plaintiff's Exhibit 1, the video tape of the car stop and subsequent events, even though counsel admitted he had not reviewed the same. Counsel stated to the court that he was too busy handling these types of cases to have reviewed the case in preparation for the trial of this case. This was followed by the presentation of evidence by KDOR's counsel which included his examination of the trooper, which elicited the testimony of the trooper that plaintiff did not make any request for independent testing. The video, however, is clear that not only was a
request made, but it was denied by the trooper. Counsel, therefore, by his failure to review the video tape, assisted this trooper in presenting testimony obviously contradictory to the evidence in this case.

This contradiction, coupled with the attitude of the trooper apparent from his comments toward the plaintiff during and subsequent to testifying, and further buttressed by this court's observation of the attitude and demeanor of the trooper while testifying, lead this court to the conclusion that the trooper's credibility is severely lacking, not only as to the issue of independent testing, but also as to his views as to the manner in which plaintiff attempted to take the intoxilizer test.
Because Judge Wheeler finds that Mr. Baconrind did not willfully refuse the test and did request independent testing, he vacates the suspension order.

I guess I think this decision is interesting on a couple of different levels. I know that some writers have opined that perjury by law enforcement officers is a widespread problem and cases like this lend credence to that position. If this trooper hadn't been videotaped, I suppose he would have gotten away with it. I suppose law enforcement officers internally rationalize this type of act, but in reality it is both a crime and a breach of public trust, no matter how much they think the end justifies the means.

I wonder if the trooper is being prosecuted for perjury? Also, I wonder if this trooper has received any sort of professional sanction? If anyone knows, please comment.

Friday, November 20, 2009

January 2010 KSC Docket

Here are the criminal cases on the KSC docket for January 25-28, 2010. 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.

January 25--Monday--a.m.

State v. Joshua Stone, No. 100,076 (Sedgwick)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Ryan Eddinger
[Reversed and remanded; Rosen; August 20, 2010]
  1. Prosecutorial misconduct
  2. Failure to suppress statements
State v. Kevin Labelle, No. 98,136 (Sedgwick)
Sentencing appeal (petition for review)
Rachel L. Pickering
[Affirmed/vacated/remanded; Nuss; May 28, 2010]
  1. Improper use of juvenile for persistent sex offender finding
State v. Reginald Johnson, No. 100,544 (Sedgwick)
Direct appeal; First-degree murder
Lydia Krebs
[Affirmed; Davis; August 6, 2010]
  1. Failure to give lesser instruction on voluntary manslaughter
January 26--Tuesday--a.m.

State v. Jeffery Nelson, No. 101,064 (McPherson)
Direct appeal; First-degree murder
Meryl Carver-Allmond
[Affirmed/reversed; Biles; Nov. 19, 2010]
  1. Failure to give imperfect self-defense instruction
  2. Improper intent and premeditation instructions
  3. Improper admission of prior bad act evidence
  4. District court used improper standard for evidence for hard-50
January 27--Wednesday--a.m.

State v. Ruby Thomas, No. 98,123 (Geary)
Direct appeal (petition for review); Possession
Carl Folsom, III
[Reversed; Nuss; Jan. 21, 2011]
  1. Failure to suppress evidence
  2. Statutory speedy trial violation

  3. Confrontation Clause (Laturner)
State v. Tabitha Bonner, No. 98,430 (Montgomery)
Sentencing appeal (petition for review)
Carl Folsom, III
[Affirmed; Luckert; March 5, 2010]
  1. Failure to consider Labette
  2. BIDS administrative fees

Tuesday, November 17, 2009

Governor grants pardon

Here is a Lawrence Journal World article reporting that the KU Defender Project helped Samuel Jarvis Hunt obtain a pardon of his 1969 Sedgwick County robbery conviction. The article sets out the history and background of the case:
For some observers, Hunt's pardon represents a righting of a wrong that highlighted tension in Kansas, and in the country, in the 1960s.

Hunt, along with seven other black defendants from Kansas known as the "Wichita 8," was convicted of robbery by an all-white jury.
The pardon application was supported by former judge and attorney general Robert Stephen. This is the second clemency action in quite some time. Governor Sebelius issued a partial pardon in one case and this one.

Here is coverage at

Saturday, November 14, 2009

Marx strikes again

Michael C. Hayes won in State v. Jimeson, No. 102,158 (Kan. App. Nov. 13, 2009) (unpublished), affirming Judge Patton's suppression of evidence from an illegal traffic stop. The officer in the case initiated a traffic stop after he observed Jimeson's motorcycle momentarily drift onto the shoulder of the road. The district court rejected the officer's claim that the stop was based on public safety and found that the officer did not have reasonable suspicion of a traffic violation.

The COA held that substantial competent evidence supported the district court's conclusion that the "public safety stop" was a pretext for an investigatory detention:

Our review of the record impels us to agree with the trial court. We too are not convinced the officer made a public safety stop in a case where the first words from the police officer were "Are you drunk?
The COA also relied on State v. Marx (blogged about here) to conclude that, "even if [the officer] had a suspicion of a K.S.A. 8-1522(a) violation, Jimeson's brief lane breach would not have been enough to validate a traffic stop."
[Update: the state did not file a PR and the mandate issued on December 17, 2009.]

Friday, November 13, 2009

Will Kargus get a petition for review?

Megan Herrington won in Kargus v. State, No. 100,852 (Nov. 6, 2009), affirming Judge Tatum's order granting Mr. Kargus relief on his claim of ineffective assistance of appellate counsel with regard to failure to file a petition for review on his behalf in his direct appeal. We have blogged about this case previously here, when the KSC established that defendant's do have a statutory right to effective assistance of counsel at the petition for review stage.

On remand, Judge Tatum granted relief to Mr. Kargus, allowing him to file a late petition for review, and the state appealed. On appeal, the state conceded that appellate counsel did not consult with Mr. Kargus about a possible petition for review; nor did the state contest that Mr. Kargus would have directed that appellate counsel file a petition for review, had he been consulted. Instead, the state argued that failure to file the petition for review was not objectively unreasonable. The COA disagreed:

[Appellate counsel's] failure to define the scope of his representation, compounded by statements which could have led Kargus and Monroe to misunderstand that scope, was ineffective assistance in itself. A lawyer is obliged to “keep a client reasonably informed about the status of a matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Given that the decision to appeal belonged to Kargus, he needed enough information to accomplish his wish to “go as far as it would go.” This information included Kargus' right to file a petition for review and whether [appellate counsel] was representing him for that purpose. The fact that this information was not communicated was ultimately attributable to [appellate counsel], not to Kargus or Monroe.
The state also argued that the decision to file a federal habeas petition in lieu of a petition for review was objectively reasonable. The COA again disagreed:
Given Kargus' stated intention to have his appeal “go as far as it would go,” [appellate counsel's] strategic decision to forego the filing of a petition for review was objectively unreasonable. On the one hand, [appellate counsel] did not claim that his failure to file a petition for review provided any strategic benefit to Kargus. Indeed, no benefit is apparent. On the other hand, [appellate counsel's] failure resulted in Kargus being procedurally precluded from having his case reviewed by the Kansas Supreme Court. This consequence was clearly detrimental to Kargus' stated intention to obtain appellate relief from the adverse decision of the Court of Appeals.

Moreover, [appellate counsel's] failure to file a petition for review (thereby failing to exhaust Kargus' state remedies) also procedurally barred Kargus from relief in the federal court. This was an adverse consequence which Kargus ultimately conceded in the federal district court action.
[Update: the state, ironically, filed a petition for review from this decision on December 9, 2009].
[Further update: the KSC denied the state's petition for review from the COA decision affirming the IAC finding and contemporanously denied Mr. Kargus' petition for review in the original case on March 21, 2010.]

Monday, November 02, 2009

Speedy acquittal in theft case

Lacy Gilmour won recently in State v. Mitchell, getting an acquittal in a Sedgwick County theft prosecution in less than 20 minutes. Here is Lacy's decription of the case. Thanks to What the Judge Ate for Breakfast for the tip.