Wednesday, April 28, 2010

Acquittal in Hutch

Here is a Hutchinson News article reporting that Alice Osburn won acquittals in State v. Pederson, terminating a Reno County rape/criminal sodomy prosecution.

Hendrix fix goes into effect tomorrow

As some of you may remember, last fall, the KSC decided State v. Hendrix, No. 97,323 (Kan. Oct. 23, 2009), holding that a defendant is only entitled to a self-defense instruction (or defense of another instruction) if he or she actually uses physical force, not if he or she only threatens physical force. So, if I actually shoot someone, I could claim self-defense, but if I point a gun at someone and say "Leave me alone!" I cannot claim self-defense to the aggravated assault.

In their defense, the majority admits this the exact result of its decision, but in a trend cutting across its jurisprudence, simply says the statutory language is clear and that this is a problem for the legislature to fix (we have seen these sorts of "anti-activist" decisions in other criminal cases and in civil cases). Policy arguments simply don't fly in the face of plain language:

Hendrix primarily argues policy considerations. Among other things, he points out the alleged absurdity in denying self-defense to a defendant (purportedly like himself) who can defuse a violent situation with the mere threat of force, but then in granting the defense to one who instead chooses to actually apply force. He argues the statute—or at least our interpretation of it—promotes violence because defendants wanting to ensure their entitlement to the defense will use actual force instead of words.

We agree with the worthy goal of promoting de-escalation, e.g., defusing a violent episode with some well chosen words. However, policy making is the province of the legislature. It alone must decide whether to pursue this goal in the self-defense statute. Consequently, it alone must decide to make the explicit distinctions there as it has in the other statutory enactments mentioned earlier.
Suprisingly, this decision did not garner a lot of attention from the local press, but it did get some attention around the blogosphere. Here was coverage on How Appealing. Here was coverage at The Volokh Conspiracy. Here was coverage on CrimProf blog. Even Crime and Consequences, suggested here that "prompt legislative action is in order."

In fact, there was broad support for a Hendrix fix in the Legislature--it was supported by both the Kansas Association of Criminal Defense Lawyers and the Kansas County and District Attorneys Association. Bills were introduced in both houses and there was no opposition, although there were small differences between the versions.

Eventually, the bill that was approved by both houses, House Substitute for Senate Bill 381 which can be accessed here, changed the definition of use of force to include the threat of force:

‘‘Use of force’’ means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.
Jennifer Roth worked on this bill (and many others) for KACDL and Carl and I both testified on KACDL's suggestion that the Hendrix fix be applied retroactively, which the Legislature adopted.
The new law also adopts some new presumptions regarding the use of force, which should be considered carefully when crafting instructions or pre-trial motions to dismiss based on K.S.A. 21-3219 (immunity from prosecution for person who uses force).

The bill is effective when published in the Kansas Register, which will be tomorrow, April 29, 2010, see here.

Friday, April 23, 2010

Acquittal in Google

Here is a Topeka Capital-Journal article reporting that Julia Spainhour and Joe Huerter won acquittals for their respective clients in State v. Buck and State v. Lows, ending the Shawnee County rape/agg criminal sodomy prosecutions.

Sunday, April 18, 2010

Denial of right to self-representation at preliminary hearing is structural error

Lydia Krebs won in State v. Jones, No. 98,571 (Kan. April 15, 2010), reversing Wyandotte County convictions for aggravated kidnapping and rape. The KSC reversed the convictions because the district court denied Jones the right to self-represenation at the preliminary hearing in the case.

Prior to the preliminary hearing, Jones filed a pro se motion to to represent himself. At the preliminary hearing, Jones asked the court, "How can you deny me my rights to represent myself? This is my right under the Sixth Amendment." The court disagreed and denied Jones' motion because the court believed that Jones' lack of legal training made him incompetent to represent himself (even though Jones had been declared competent to stand trial). Thus, Jones was represented by his appointed counsel at the preliminary hearing.

Prior to trial, a different judge conducted a renewed hearing on Jones' motion to represent himself. After a lengthy colloquy, Jones decided to allow his court-appointed attorney to represent him in the rest of the proceedings.

On appeal, Jones argued that his Sixth Amendment right to self-representation was violated when the district court denied his motion to represent himself at the preliminary hearing. The KSC agreed, noting that the preliminary hearing was a critical stage in the proceedings, and that Jones' "right to represent himself was as vested at the hearing as it was at trial." The court also refused to engage in harmless error analysis. The court noted that, "[a] violation of a Sixth Amendment right to counsel is subject to structural error analysis." The court stated:

We accordingly decline to speculate what might have happened had the district court followed constitutionally mandated procedures in ruling on Jones' motion to represent himself at the preliminary hearing. We instead reverse the conviction and remand for a new proceeding, commencing with a preliminary hearing.
The decision in this case is a good reminder that some constitutional violations are not subject to harmless error analysis because they "affect[] the framework within which the trial proceeds." See Arizona v. Fulminante, 499 U.S. 279, 309-10, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991).
[Update: this case won 2010 ADO case of the year!]

Friday, April 16, 2010

No state appeal of remand finding of IAC

Gerald Wells and Kevin Shepherd won in State v. Elnicki, No. 96,987 (April 8, 2010), obtaining dismissal of a state's attempt to appeal from Judge Dowd's finding of ineffective assistance of counsel on remand during direct appeal from a Shawnee County rape/agg criminal sodomy conviction. Mr. Elnicki's conviction was first reversed by the Kansas Supreme Court in 2002 and remanded for a new trial. A jury convicted Mr. Elnicki after the second trial, and Mr. Elnicki filed a direct appeal from this new conviction. While on appeal, Mr. Elnicki sought and obtained a remand pursuant to State v. Van Cleave, for determination of possible IAC in the second trial. On remand, Judge Dowd found that Mr. Elnicki received prejudical IAC at the second trial (blogged about here). The state filed a cross-appeal seeking review of that finding. But the COA noted that the state's cited bases for possible jurisdiction of such an appeal did not apply:

The right to appeal is strictly statutory. Absent statutory authority for an appeal, an appellate court is obligated to dismiss. The only clue to the State's theory is found in the second notice of appeal, which references K.S.A. 22-3602(b) and K.S.A. 2009 Supp. 60-2102(a)(4). The State does not explain how these statutes confer jurisdiction. No mention is made of the issue in the State's brief, and the State has not contested the arguments to the contrary presented by Elnicki in his brief.
The COA held that the state's appeal did not fall under any of the limited types of state appeals under K.S.A. 22-3602(b) and that the civil statute did not apply either:
The State's notice of appeal also cites the civil appeal statute, K.S.A. 2009 Supp. 60-2102. The State does not explain how this statute applies. Proceedings pursuant to K.S.A. 60-1507 are civil in nature. In Rice v. State, 37 Kan. App. 2d 456, 459, 154 P.3d 537, the State claimed that a K.S.A. 60-1507 motion was successive because the movant had sought and obtained a remand under Van Cleave for a hearing on claims of ineffective assistance of counsel. This court found the Van Cleave hearing was "part and parcel of the direct criminal appeal" and, therefore, was not the equivalent of a motion under K.S.A. 60-1507. Similarly, the remand here for a Van Cleave hearing is part and parcel of Elnicki's direct criminal appeal and, therefore, the civil appeal statute does not apply.
Another nice jurisdiction case. And another case where the state fails to adequately address jurisdictional challenges. Remember that when you represent criminal defendants in state appeals, review the case carefully for possible jurisdictional problems.

[Update: Mr. Elnicki filed a PR on May 10, 2010 from the part of the decision he lost (speedy trial). The state did not file a PR or cross-PR.]

[Further update: the KSC denied Mr. Elnicki's PR and the mandate issued on June 30, 2010.]

[Further update: here is a Topeka Capital-Journal article noting that this case will be scheduled for a third trial.]

State fails to show grounds for interlocutory appeal

Razmi Tahirkheli won in State v. Sales, No. 102,578 (Jan. 29, 2010), obtaining dismissal of a state appeal of Judge Peterson's order excluding some expert testimony in a Seward County agg criminal sodomy prosecution. After conviction, the district court determined that it had erroneously allowed in some testimony regarding delayed reporting and granted a new trial.
After a somewhat convoluted procedure, the state file a "Notice of Interlocutory Appeal," citing K.S.A. 22-3601(a) and 22-3608 for authority for the appeal. The KSC noted that the state probably meant K.S.A. 22-3603, govening interlocutory appeals and further noted that while in limine type orders can be reviewed under K.S.A. 22-3603,
the appellate courts of Kansas should not take jurisdiction of the prosecution's interlocutory appeal [under K.S.A. 22-3603] from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved.

The KSC reviewed its prior case law governing interlocutory appeals:
Examining these cases, it appears that in order to determine whether a trial court order substantially impairs the State's ability to prosecute a case, the evidence available to the State must be assessed to determine just how important the disputed evidence is to the State's ability to make out a prima facie case. Newman and subsequent cases also indicate that evidence subject to a discretionary standard of admission is less likely to substantially impact the State's case.

Applying this standard, the KSC easily concluded that exclusion of the testimony in this case did not reach the level substantial impairment:
The testimony of Agent Hamilton concerning delayed disclosure was brief, extremely general, and in essence boils down to one or two sentences indicating that it is not unusual for children who are in a relationship with their abuser to delay disclosing the abuse. The State still has the testimony of the victim, her aunt, her mother, and Agent Hamilton's interview testimony. Very little is lost with the removal of Agent Hamilton's testimony on delayed disclosure. Indeed, the need for expert testimony on the issue at all is disputed.

The KSC also noted that the state had failed to respond to the jurisdictional issue raised by Mr. Sales, which can constitute waiver of the interlocutory appeal. As a result, the KSC dismissed the state's appeal.

Thursday, April 15, 2010

A hunch isn't articulable suspicion

Kristopher M. Kellim won in State v. Young, No. 102,497 (Kan. App. Apr. 8, 2010)(unpublished), affirming Judge Hornbaker's suppression order in a Geary County obstruction and aiding a felon prosecution. Officers were investigating possible whereabouts of a person who had been mistakenly released from jail. They spoke with Ms. Young, who initially consented to search her house, but then withdrew consent. When officers returned again, they saw Ms. Young open the door to her attached garage and leave in her car. She said she was going to work and appeared to be going to work. After leaving, Ms. Young made a U-turn and came back to her house. She told officers she had left her name tag. She went back into the attached garage and closed the garage door, before again leaving for work. Officers suspected that she was hiding the fugitive in her trunk. Without observing a traffic violation, officers stopped Ms. Young's car and immediately took her keys and searched her trunk discovering the fugitive.

The COA held that the district court's finding was supported by substantial competent evidence:

We find nothing in these facts to support a particularized and objective basis for suspecting Adams was hiding in Young's home. Her answers to Landreville's questions did not indicate any knowledge of Adams' whereabouts, and there was nothing presented at the suppression hearing to show that Young's demeanor while speaking to Landreville or Giordano indicated she was overly nervous or scared. Moreover, the fact that Young withdrew her consent for Landreville to search her home cannot be used to formulate reasonable suspicion. Thus, at the time Young left for work the first time, Landreville's belief that Adams was hiding in Young's house was purely speculative.

Finally, nothing in Young's actions upon her return home support a particularized and objective basis for suspecting Adams was hiding in Young's home or in Young's car. When she returned home, Young told Giordano she forgot her work badge, opened her garage door, drove her car inside the garage, and then closed the garage door and shut off her car. Although Giordano testified she thought it suspicious that Young would shut the garage door behind her just to run in and retrieve her work badge, Young's behavior in shutting the garage door behind her does not create a
particularized and objective basis for suspecting Adams was hiding in Young's home or in Young's car. This is especially true given Young already had been questioned by police about Adams' whereabouts, threatened with possible criminal charges, and prevented from leaving for work. If anything, Young's actions indicated her legal desire to have no further contact with the police and to be left alone inside her home.

Once Young closed her garage door, Giordano went up to the door and put her ear against it so she could listen for sounds indicating the presence of a second person. Instead of hearing any sounds indicating the presence of a second person, all Giordano heard was loud music. Although Giordano testified she thought it suspicious that Young would play loud music prior to opening her garage door to leave for work, Young's behavior in this regard does not create a particularized and objective basis for suspecting Adams was hiding in Young's home or in Young's car.

Based on the facts in the record, Landreville's decision to stop Young's car was based on a hunch that Adams was in the trunk, which was based on a hunch that Adams got into the car when Young returned home to retrieve her name badge, which was based on a hunch that Adams was in Young's house in the first instance. As such, where is substantial competent evidence to support the district court's factual finding that Landreville's suspicions were based on speculation and assumptions instead of specific and articulable facts.

I'm not sure this is the right standard of review for a negative finding (that the state failed to meet it's burden at the suppression hearing), but still the right result.

[Update: the state did not file a PR and the mandate issued on May 12, 2010.]

Tuesday, April 13, 2010

Nice article on Kansas defender preparing for an unusual trial

Here is a Wichita Eagle article reporting on some of the challenges facing Kurt Kerns in his defense of a person charged and being tried in Wichita with genocide in Rwanda. Trekiing across some places in Africa would be pretty intimidating!

Here is some video from What the Judge Ate for Breakfast.

Friday, April 02, 2010

If you get your client deported . . . , you might be ineffective

On March 31, 2010, the SCOTUS issued the opinion in Padilla v. Kentucky, placing a duty upon defense counsel to inform noncitizen clients of the negative immigration consequences of pending criminal charges (before pleading the clients out to those charges). The SCOTUS held:

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The SCOTUS did not identify whether deportation was a “collateral consequence” of a criminal conviction, but stated:

Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

The SCOTUS explained that Padilla's attorney was ineffective and, at the same time, discussed the duties of defense counsel regarding immigration consequences:

The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.

(Emphasis added). Thus, the duties of defense counsel regarding immigration consequences can be summed up as follows:

  1. Know whether your client is a noncitizen (I added this one, but it seems like counsel should not be able to “fail to investigate” a client’s immigration status to get out of the duty to inform them of immigration consequences).
  2. If the deportation consequences of certain offenses are clear (read the removal statute), advise your noncitizen clients of the deportation consequences for the criminal charges they are facing (e.g., does the charge make deportation presumptively mandatory?);
  3. If deportation consequences are not clear, advise the noncitizen clients that any criminal charges may carry adverse immigration consequences.

For a good resource on this area of the law, here is a link to a free copy of Tooby's Guide to Criminal Immigration Law.

You can impeach with prior inconsistent statements, even if witness does not remember

Rick Kittel won in State v. Stinson, No. 100,361 (Kan. App. March 26, 2010), obtaining a new trial in a Wyandotte County agg robbery/agg battery prosecution. The COA noted that the complaining witness' credibility was key to this case. The trial judge held in one instance that because the witness entirely denied making the a prior statement, defense counsel could not impeach with a prior inconsistent statement; in another instance, the trial judge refused to allow defense counsel to attempt to refresh the witness' recollection by showing him the prior statements when the witness indicated that he did not remember making the statement. The COA disagreed:

Here, when [the witness] could not remember his previous statement to the police and his specific testimony at the preliminary hearing, it was appropriate for defense counsel to utilize the witness' prior statement and his prior testimony in an attempt to refresh his memory. Normally, it is within the trial court's discretion to determine whether memoranda or other items may be used to refresh a witness' recollection. In this case, however, the trial court erroneously determined that Harris had to deny making the statement before the prior statement could be introduced to refresh his recollection.

. . . .

In at least one of the instances where he was attempting to introduce Harris' previous statements to refresh Harris' recollection, Stinson also requested to introduce them as prior inconsistent statements. Further, the trial court treated all of Stinson's three attempts to introduce Harris' previous statements as if he was trying to introduce prior inconsistent statements for impeachment purposes. Nevertheless, the trial court determined that because Harris had not denied making his previous statements but had only been unable to recall making them, Stinson could not introduce the statements for impeachment purposes. The trial court's determination is not in accord with the statutory and case law regarding the admissibility of prior inconsistent statements to impeach a witness who testifies at trial.
When Stinson attempted to question [the witness] about his previous inconsistent statements, the trial court improperly excluded such statements on the basis that Harris did not recall making them. Such a rule is contradictory to statutory and case law. Our Supreme Court has stated that "[w]here an impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof or denies the same, the statement itself or at least the impeaching portion thereof should be admitted into evidence." State v. Schlicher, 230 Kan. 482, Syl. ¶ 4, 639 P.2d 467 (1982). . . . Moreover, within the discretion of the court, a cross-examiner may inquire into collateral matters when the inquiry is not barred by any specific rule. . . . Because a defendant in a criminal case has a right to confront the State's witnesses under the Sixth Amendment to the United States Constitution, the defendant must be given an effective opportunity to cross-examine those witnesses. Here, the trial court's decision to exclude [the witness'] prior inconsistent statements was an abuse of discretion. Moreover, the trial court's actions prejudiced Stinson when it precluded him from pointing out the inconsistencies, attempted to be elicited and/or proffered during cross-examination, between [the witness'] trial testimony and his previous sworn testimony and his written statement.
A lot of good language for you evidence geeks. (You know who you are.)

[Update: the state did not file a PR and the mandate issued on April 29, 2010.]