Friday, January 29, 2010

Alaska has a state constitution

Here is a link to a recent Alaska Supreme Court decision reversing a DUI conviction based on an improper seizure, in part, under the Alaska Constitution:

The Fourth Amendment of the United States Constitution and article I, section 14 of the Alaska Constitution both prohibit "unreasonable searches and seizures." The critical issue to be decided in this case is whether Trooper Bordner’s actions constituted a seizure. If they did, the next question is whether this seizure was unreasonable. Because the Alaska Constitution provides broader protection than the United States Constitution in the area of search and seizure, it is appropriate to apply state constitutional protections in this case. Although we carefully consider and "find substantial guidance in cases interpreting the United States Constitution," we are not bound by those decisions when interpreting state constitutional law.
In case you're curious, here is Section 1.14 on the Alaska Declaration of Rights:
The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Here is Section 15 of the Kansas Constitution Bill of Rights:
The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

Thursday, January 28, 2010

Improper instruction on great bodily harm

Ryan Eddinger and Meryl Carver-Allmond won in State v. Delacruz, No. 100,654 (Kan. App. Jan. 22, 2010), obtaining a new trial in a Seward County aggravated battery prosecution. There were two instructional errors that resulted in reversal. First, while the district court instructed the jury on misdemeanor battery as a lesser, it used the "rude, insulting or angry manner" version, instead of "bodily harm." Second, the COA considered it likely that a district court should normally inform a jury about the distinction between "great bodily harm" and "bodily harm," but did not have to reach that issue head on because it actually instructed the jury that there was no definition of "great bodily harm":
Instruction No. 4 advised the jury that "[t]here are no definitions that this Court can give to you to define 'great bodily harm' or 'bodily harm.'" Delacruz argues this misstatement implied to the jury that there was no meaningful distinction between the two terms and essentially encouraged the jury to react impulsively to the evidence of physical harm.

We agree. The district court affirmatively and erroneously misadvised the jury that the two terms could not be defined, contrary to well-established case law. Moreover, in considering whether a real possibility exists that the jury would have rendered a different verdict if the trial error had not occurred, we are swayed by the district court's own characterization of the evidence of "great bodily harm" as "thin." Finally, the effect of this error may have been compounded by the district court's failure to properly instruct the jury on misdemeanor battery. As discussed above, the district court should have instructed the jury that simple battery consisted of "intentionally or recklessly causing bodily harm" instead of "intentionally caus[ing] physical contact with another person when done in a rude, insulting or angry manner."
By reversing on these grounds, the COA avoided what I am told are pretty significant issues of judicial misconduct and prosecutorial misconduct.

[Update: the state did not file a PR and the mandate issued on February 25, 2010.]

Thursday, January 21, 2010

Homicide acquittal in Capital City

Here is a Topeka Capital-Journal article reporting that Richard Jones won an acquittal in State v. Solis-Munoz, ending a Shawnee County second-degree intentional murder prosecution (the jury convicted of reckless agg battery of a separate victim). This case was the subject of a state's appeal blogged about here.

Tuesday, January 19, 2010

New Hampshire has a state constitution

Here is a recent New Hampshire Supreme Court decision holding that failure to instruct a jury on an element of a crime is not subject to harmless error review. This is an issue that has come up in Kansas in State v. Daniels, where the KSC followed the United States Supreme Court's lead in Neder to find that the federal constituion allows application of the harmless error rule to such failure. But I don't know that the KSC, like the New Hampshire Supreme Court, has ever been presented with a state constitutional claim on that point. And after In re L.M., at least the KSC has recognized that there is a state constitutional right to a jury trial that is separate from the federal right. And there's a pretty good argument that, textually at least, the right stated in the Kansas Constitution is more clear than that in the New Hampshire Constitution (the right to jury trial shall be "inviolate," not shall be "inviolate except where it wouldn't matter"). So keep it in mind if you have one of these cases on appeal.

Monday, January 18, 2010

More great appellate work by defenders

As previously noted (here), we try to update on most favorable appellate cases, but we often don't get notice of unpublished affirmances in state's appeals, because the ADO is usually not counsel of record.

Here is a search of the last seven months of 2009, which turned up a lot of great trial/appellate work by defenders. We posted on them (retroactively dated to around when the decision came out), but we thought we would also just list and link them here:

State v. Jimeson, No. 102,158 (Nov. 11, 2009); Michael C. Hayes; affirming Judge Patton's suppression order under Marx

Kargus v. State, No. 100,852 (Nov. 6, 2009); Megan Herrington; affirming Judge Tatum's order granting movant permission to file late petition for review based on ineffective assistance of appellate counsel

State v. Harms, No. 101,159 (Oct. 23, 2009); Scott C. Gyllenborg; affirming Judge Davis' dismissal of charges due to statutory speedy trial violation

State v. Solis-Munoz, No. 99,632 (Oct. 23, 2009); Richard Jones; affirming Judge Leuenberger's suppression of statements as involuntary

State v. Sullivan, No. 101,850 (Oct. 16, 2009); Wm. Rex Lorson; affirming Judge Hellmer's suppressiion order based on Marx

State v. Keaton, No. 101,480 (Oct. 2, 2009); Maradeth Frederick; affirming Judge Fleming's suppression order under Gant

State v. Hoadley, No. 101,205 (July 31, 2009); Shelley Kurt Bock; affirming Judge Martin's suppression order under Fourth Amendment

State v. Isaac, No. 101,230 (June 26, 2009); Andrew Delaney; affirming Judge Weingart's suppression order under Fourth Amendment

State v. Carson, No. 101,242 (June 5, 2009); Shawn Lautz; affirming Judge Chamber's suppression order under Fourth Amendment

Be sure to let us know if you have good district court or appellate cases. And if you send us .pdf, we can post online so others can use in their cases, too!

Brinklow acquitted on retrial

About a year ago, we reported (here) that Pat Dunn won a new trial in a Barber County aggravated indecent liberties case in State v. Brinklow. The KSC reversed and remanded due to failure to sequester witnesses and prosecutorial misconduct.

We just learned that in September 2009, Michael C. Brown won an acquittal in this case on retrial. Congrats to Pat and Michael!

Exonerated man likely to receive millions in compensation

Here is a Hutchinson News article reporting that Eddie Lowry, who spent 10 years in prison for a rape he didn't commit, will receive $7.5 million in compensation if the civil defendants approve the recommended settlement. The article notes that
Lowery's attorneys contend that officers who interrogated him denied his repeated requests for an attorney, provided him details of the rape and then coerced him into confessing to the crime.
I guess I just think this points out that a lot of what some people perceive as "technicalities" are not technicalities, but fundamental protections. The right to counsel helps to prevent false confessions and, in turn, wrongful convictions.

Here is a follow-up article in the Topeka Capital-Journal after the defendants have accepted the settlement.

Here is another article reporting on attorney Barry Clark and his decade-long effort to exonerate Mr. Lowery.

Not guilty X 2

Congrats to Steve Cott, who won two big not guilty verdicts in as many weeks. First, he won an an acquittal after twelve minutes of jury deliberations, in State v. Solis, ending a Ford County agg criminal sodomy prosecution. Here is coverage in the Dodge City Globe (the paper says 15-20 minutes deliberations, but I heard 12). Then last week, he won an acquittal in State v. Sotello, ending a Ford County agg indecent liberties (Jessica's Law) prosecution. Wow.

Happy Birthday to Kansas Defenders

Well, this blog turned four years old on Saturday, if you can believe that. Six hundred and seventy-three posts since January 16, 2006. And two followers! We rock!

Any ideas for what should be included in the blog in the next four years?

Friday, January 15, 2010

Sex Offender Laws & the Ex Post Facto Clause

During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. I’ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment. I also discuss the case of Carr v. United States, currently pending in the U.S. Supreme Court, which involves an Ex Post Facto Clause challenge to the retroactive application of the Sex Offender Registration and Notification Act (SORNA).

Hopefully, these cases will provide some assistance for those of you currently litigating similar issues in Kansas. And of course, if you're not litigating these issues, you should be. More on that in a later post.


Earlier this week, the Missouri Supreme Court held that laws regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect. Here is the court’s opinion, and here is a KC Star article on the case.


As explained here, a federal district court judge enjoined part of Nebraska’s new sex offender law, holding that Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

The court held

[F]or offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”

Here is the full text of the judge’s order. Thanks to Doug Berman for the tip.


As detailed here, in State v. Letalien (2009), the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. The Maine Supreme Court held that the change in the registration law violated the US Constitution’s prohibition against ex post facto punishments, noting that the Federal and Maine Constitutions provide the same Ex Post Facto protections.

Thanks to Gideon and Meryl Carver-Allmond for the tip on this one.


In Wallace v. State (2009), the Indiana Supreme Court held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the ex post facto clause of the Indiana Constitution.


In Kentucky v. Baker (Oct. 1, 2009), the Kentucky Supreme Court held that KRS 17.545, which restricts where registered sex offenders may live, could not be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. The court noted that the retroactive application of the statute was an ex post facto punishment, which violated Article 1, Section 10 of the United States Constitution and Section 19(1) of the Kentucky Constitution.

Ninth Circuit

The Ninth Circuit Court of Appeals declared in U.S. v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

Upcoming SCOTUS decision

In Carr v. United States, Docket No. 08-1301, the US Supreme Court will soon consider an ex post facto challenge to SORNA. Oral argument is scheduled for February 24, 2010. The issue to be decided is:

Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Here is a nice amicus curiae brief (written by Doug Berman, Wayne Logan, and Corey Yung) that argues that SORNA violates the Ex Post Facto Clause of the U.S. Constitution.

Acquittal in Hutch

Sarah Sweet-McKinnon won an acquittal in State v. Nauert, ending a Reno County aggravated assault conviction on Wednesday.

Thursday, January 14, 2010

Trooper acquitted in Emporia

Here is an Emporia Gazette article reporting that Tom Lemon won an acquittal in State v. Epperly, ending a Lyon County prosecution of a highway patrol trooper for three counts of theft and a count of official misconduct.

Tuesday, January 12, 2010

Carl hangs up a shingle

Well, sad days around the ADO. Carl Folsom (co-author of the blog), has left to join Branden Bell in private practice in Lawrence. Carl started at the ADO in September 2005 and has had many big cases as an appellate defender, including several in 2009 like State v. Jones, (new trial in agg robbery case due to judge improperly and inaccurately commenting on evidence, blogged about here), State v. Schad, (vacating conditions of probation requiring client to put signs up at his house and on his car, blogged about here), and State v. Kelley, (new trial in rape case due to improper admission of heresay, blogged about here). I also fondly remember Carl's win in State v. Gonzales, an agg sex battery case, establishing that, if you complete a crime, it's not attempt.

Carl's a great appellate attorney, who thinks out of the box and is zealous to say the least. But he has also been chomping at the bit to try trial work. So if you are looking for a good appellate or trial attorney, check out Carl and Branden's website here! He'll still be a co-author of the blog and, in fact, may be able to better inform readers about federal court news and private law practice issues!

Acquittal in Sedgwick County agg arson case

My old PD colleague, Nika Cummings, won last week in State v. Pfeiffer, getting an acquittal on agg arson and four counts of arson (conviction on a couple of misdemeanors).