The ADO docketed this case in January 2006 and we actually filed our opening brief in the case in November 2006. In April 2007, the state filed its brief responding to the issues, but also alleging that Mr. Raiburn had failed to report to his probation officer. The state sought dismissal of the appeal under the "fugitive disentitlement doctrine." After supplemental briefing on the dismissal request, the COA held oral argument in October 2007. At argument, the state essentially conceded error with regard to the 12-person jury issue, but mainly focused on the fugitive disentitlement doctrine.
In November 2007, the COA dismissed the appeal. Mr. Raiburn filed a petition for review, which was granted in May 2008. After more supplemental briefing (including our briefs urging abandonment of the fugitive disentitlement doctrine), the KSC heard argument in September 2008. In July 2009, the KSC decided the case, here, retaining the fugitive disentitlement doctrine, but clarifying that it could not be invoked just based on an allegation by the prosecutor in his/her brief. The KSC set out the procedure, in which the claim must be raised by the prosecutor in the appellate court and, then, the appellate court can remand to the district court for findings of fact on the alleged fugitive status and those findings themselves would be subject to appeal.
So Mr. Raiburn's case went back to the COA. In August 2009, the state filed a motion with the appellate court and the appellate court remanded for findings of fact as outlined in the KSC decision.
Then, before any hearings were held in district court, Mr. Raiburn was found in jail in Oklahoma.
Although I filed an emergency motion with the appellate court seeking vacation of the remand order, the COA denied those motions and the district court hearing went on in September 2009, before Mr. Raiburn could be returned to Kansas. The district court acknowledged that Mr. Raiburn's whereabouts were apparently known at the time of the remand hearing. But because Mr. Raiburn had originally failed to report to his probation officer, the district court found that Mr. Raiburn was a fugitive. We docketed a supplemental appeal of that decision.
In November 2009, while the supplemental appeal was pending, Mr. Raiburn was actually returned to Kansas and the district court revoked probation. I filed a motion seeking remand to the district court to consider whether Mr. Raiburn was still a fugitive. The COA instead issued an order indicating that Mr. Raiburn appeared to be back in Kansas and ordering the state to show cause why the appeal should not proceed as normal. The state responded agreeing that Mr. Raiburn was back within the jurisdiction of the court and stood silent on whether the appeal should proceed. In December 2009, the COA returned the case to "ready" status.
And in April 2010, the COA issued a short decision reversing and remanding for a new trial because the district court failed to properly advise Mr. Raiburn of his right to a 12-person trial before accepting a waiver after a juror became disoriented and had to leave in the middle of trial:
The record on appeal contains no evidence that the trial judge personally advised Raiburn of his right to a 12-person jury prior to asking him if he objected to proceeding with an 11-person jury. The record only reflects Raiburn's agreement to an 11-person jury. This procedure conflicts the holding in [State v. Roland, 15 Kan. App. 2d 296, 807 P.2d 705 (1991)](holding the district court must advise the defendant of his or her right to a 12-person jury).This ultimate result is not really surprising given the state's concession at oral argument. But what a long trip.
So, the KSC decision was pretty disappointing to me, given that I think that the stated reasons for the fugitive disentitlement doctrine are pretty outdated and inapplicable. But maybe the upside is that, while the fugitive disentitlement doctrine survives, the practical application will be so unwieldy that it is perhaps not as an attractive an option for the state. The prosecution would still have to go through a whole remand hearing and supplemental appeal regarding the fugitive status just to try to invoke the doctrine. In many cases, I suspect it is just easier and just as effective to simply respond to the merits and allow the appeal to proceed as normal.
Anyway, approximately four and a half years after sentencing and two and a half years after the state conceded the 12-person jury issue at oral argument, Mr. Raiburn finally gets a new trial.
[Update: the state did not file a PR and the mandate issued on May 26, 2010.]
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