Wednesday, September 29, 2010

Statute means what it says

Janine Cox won in State v. Urban, No. 98,956 (Kan. Sept. 24, 2010), affirming Judge Bornholdt's dismissal of a Johnson County aggravated escape from custody prosecution. Ms. Urban was on bond and as a condition of bond, had to reside at the Johnson County Residential Center. According to the state, she left the Center without permission.

The state charged Ms. Urban with aggravated escape from custody. Judge Bornholdt relied on K.S.A. 21-3809(b)(1), which states that "'Custody' does not include . . . constraint incidental to release on bail." The COA had held that the statute should not be construed to exclude the circumstances in the case from the definition of "custody." The KSC disagreed:

We depart from the panel on its first ground because it requires us to exceed our role when faced with a statute whose language is clear and unambiguous. As we have often stated, it is not the place of a court to look beyond such language for evidence of legislative intent. When a statute is plain, the court should not speculate as to the legislative intent behind it and should not read into the statute something not readily found in it. In this case, there was no need here to go beyond statutory interpretation to statutory construction, employing canons, or searching for clues in legislative history or other background considerations. The legislature's intent in choosing the words it used in the second exception in the second sentence of the statute is manifest. "Constraint" is a broad term; it may be more intrusive than detention or less. Bail has a specific meaning, but it includes a PR bond such as that posted by Urban. The "release" in the phrase "release on bail" is release from jail; required residence in a community corrections facility may not be total freedom, but it is still not jail.

We also disagree with the panel's second ground, the gloss it gives the phrase "incidental to." Although it is true that "incidental to" has developed a modern usage subtly differentiated from "incident to," both phrases imply that the preceding concept is subordinate in some way to the succeeding concept. The legislature's employment of "incidental" rather than "incident" does not necessarily trivialize "constraint" in a cosmic sense. It does not make "constraint" irrelevant, as "spectacle" does to "shopping" in Garner's exemplary sentence: "Inside a Niketown or REI store in Seattle, shopping seems incidental to the spectacle . . . ." Rather, it precisely conveys, just as "incident to" conveys, the relationship between constraint" and "release on bail." The relationship is dependence; the constraint arises out of the bail context.

Third, we are unpersuaded that there is anything unreasonable about an interpretation of the statutory language that makes every constraint incidental to release on bail ineligible for the label of "custody" under K.S.A. 21-3809(b)(1). This was the legislature's policy choice to make, and it made it. It is not so farfetched that we must recoil or darn its socks. The exception to custody for "constraint incidental to release on bail," in fact, is consistent with the overall legislative design that makes walking away from a community corrections facility while on bond a separate offense. If the legislature believes it has been misunderstood, we are confident that an appropriate amendment of the statutory language will follow publication of this
opinion.

This decision is consistent with the KSC's recent trend to pretty strictly construe statutes according to their terms.

Three judges nominated for Kansas Supreme Court

Here is the press release announcing that COA judges Nancy Caplinger and Tom Malone and district judge Merlin Wheeler (from Emporia) were selected by the Supreme Court Nominating Commission and forwarded to the governor.

Here is coverage in the Wichita Eagle. And here is coverage in the Emporia Gazette. Here is coverage in the Topeka Captial-Journal.

Wednesday, September 22, 2010

ADO's silver anniversary

From Joyce Black, ADO Administrative Specialist:

Once upon a time (August, 1985) there was a little office born from need and necessity. The office started out with two clerical staff and five attorneys. There were few computers, and lots of “yellow tablets” full of briefs and motions (yes – the clerical staff typed briefs from handwritten pages and a few from dictaphones).

As the office grew, more attorneys and staff were added to its ranks. The little office never lacked in great dedication by its constitute members; nor did it lack in clients. Some members left in anticipation of brighter futures (and some came back to the fold); some lasted all of one day or a couple months before they found this was not their “cup of tea.” And some have stayed for years (and years and years!). All of these members added to the character of the office.

Many processes have been added, deleted and changed: better and more efficient computers (and word processing pains), the development of a data base, file review had its day in the sun, a “sentencing unit” worked through hundreds of cases, contract attorneys helped ease the load, the addition of legal assistants, the break-off of two capital appeals offices, and docketing review to name a few. But one process has essentially remained the same – opening cases.

This little office has just reached a double milestone – don’t ask me for other numerical milestones since the data base does not contain all the office’s successes and failures during its existence. The Appellate Defender Office has just opened 25,000 cases and is 25 years old!


Joyce has been with the ADO since the beginning and is certainly one of the moving forces behind its success. Happy Anniversary, ADO!

The lonely Kansas Constitution

I was impressed and glad to see this month's copy of the Journal of the Kansas Association for Justice (September 2010) included an article by Daniel E. Monnat and Paige A. Nichols titled "The Loneliness of the Kansas Constitution." Here is an excerpt from the introduction:
Today the original handwritten, eight page document [the Kansas Constitution] lies safely in the archives of the Kansas State Historical Society. A single rotating page is displayed under glass in the Kansas Museum of History. And what has become of this document in the Kansas courts? With few exceptions, it appears to have been relegated to the archives there, as well.

Over the past half-century, Kansas' state constitution has come to play second fiddle to the federal constitution in our courts. The rights that many free-staters died facedown in the mud to secure are rarely treated as sovereigh rights independent of the federal constitution. Time and again the Kansas Supreme Court has acknowledged its authority "to intepret our Kansas Constitution in a manner different than the United States Constitution has been constured," and yet the Court has "not traditionally done so."
The article lays out the history and policy behind state constitutionalism and begins to teach how to raise a state constitutional claim in district court. So get a copy and read it (here is a link to the article on Dan's website).

The KSC is right and wrong. It not only has the authority to independently interpret the state constitution. It has the duty to do so.

Monday, September 20, 2010

Eyewitness ID instruction under attack

Here is a nice article from the Wichita Eagle highlighting the recent oral argument in State v. Mitchell, No. 99,163. In Mitchell, the KSC is considering whether a jury should be instructed to give special consideration to witness certainty in determining whether an eyewitness' testimony is accurate. The case was argued by Ryan Eddinger of the ADO.

Ryan argued that the scientific research says that an eye-witness' certainty is not correlated to the accuracy of their identification. He argued that the eyewitness identification instruction, PIK Crim.3d 52.20, is based on 30-year-old case law and that the witness' "degree of certainty" should be removed as a factor from the instruction. The KSC is clearly interested in this issue, as they granted Ryan's petition for review, and they recently granted a petition for review in a case of mine on the same issue.

In all cases that involve eye-witness testimony, an objection to PIK Crim.3d 52.20 should be made (you might also consider asking for expert testimony on the pitfalls of eye-witness testimony or moving to suppress in-court identifications if the out-of-court procedure was suggestive). The objection to PIK Crim.3d 52.20 is especially important if the witness testifies at trial that they are very certain of their identification or if the witness has become more certain of their identification as the case has progressed. Another science-based instructional issue is to request an instruction that cross-racial identifications are less reliable, blogged about here.

As other cases have shown, objecting to pattern instructions can make the difference between winning and losing a case on appeal. Examples of this with the recent Salts case were blogged about here, here, here, and here.

Thursday, September 16, 2010

October 2010 KSC docket

Here are the criminal cases on the KSC docket for October 25-29, 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.

October 25--Monday--a.m.

State v. Phouthavy Chanthaseng, No. 101,346 (Sedgwick)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Lydia Krebs
[Affirmed; Beier; Sept. 9, 2011]
  1. Insufficient evidence of age of defendant
  2. Improper exclusion of defense testimony
  3. Prosecutorial misconduct
State v. Andre Bailey, No. 101,785 (Sedgwick)
Direct appeal; Felony murder
Michael P. Whalen
[Affirmed; Rosen; July 15, 2011]
  1. Improper adult certification
  2. Improper instructions re felony murder and underlying felonies
  3. District court improperly forced witnesses to testify
State v. David Holman, No. 101,204 (Sedgwick)
Direct appeal; Agg indecent liberties (Jessica's Law)
Randall L. Hodgkinson
[Aff'd/Rv'd/Rmd; Buser; August 24, 2012]
  1. Improper bad acts evidence
  2. Improper exclusion of impeachment evidence
  3. Improper prevention of cross-examination of complaining witness
  4. Improper amendment of complaint
  5. Insufficient evidence of age of defendant

October 26--Tuesday--a.m.

State v. Taurus Adams, No. 101,432 (Wyandotte)
Direct appeal; First degree murder
Meryl Carver-Allmond
[Affirmed; Luckert; April 15, 2011]
  1. Prosecutorial misconduct
  2. Improper order of lesser-included offense instructions
  3. Improper instructions on intent and premeditation
State v. Charles Denmark-Wagner, No. 102,234 (Pratt)
Sentencing appeal
Heather Cessna
[Aff'd/Vac'd; Beier; August 12, 2011]
  1. Improper failure to allow withdrawal of plea

October 27--Wednesday--a.m.

State v. Calvin Brown, No. 100,881 (Wyandotte)
Direct appeal; Agg indecent liberties (Jessica's Law)
Matthew J. Edge
[Aff'd/Vac'd; Brazil; Jan. 7, 2011]
  1. Improper admission of prior consistent statements
  2. Failure to instruct on voluntary intoxication
  3. Improper deadlocked jury instruction before deliberations
  4. Failure to instruct jury on age of defendant
State v. John Meili, No. 101,810 (Saline)
Sentencing appeal
Carl Folsom, III
[Remanded (unpublished); Rosen; Dec. 10, 2010]
  1. Disproportionality of life sentence
  2. Failure to grant downward departure
State v. Terrance Kelly, No. 100,006 (Johnson)
Plea withdrawal appeal
Meryl Carver-Allmond
[Remanded; Biles; Dec. 10, 2010]
  1. Failure to allow withdrawal of plea

October 28--Thursday--a.m.

State v. Rolland Berreth, No. 99,937 (Butler)
Sentencing appeal (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; April 6, 2012]
  1. Jurisdiction to resentence after Court of Appeals mandate

October 29--Friday--a.m.

State v. James Malstrom, No. 101,604 (Reno)
Sentencing appeal
Carl Folsom, III (brief); Merly Carver-Allmond (argue)
[Vac'd/Rmd; Nuss; March 25, 2011]
  1. Improper calculation of severity level in Jessica's Law departure
State v. Anthony Divine, No. 102,907 (Montgomery)
Appeal from registration order
Sara S. Beezley
[Reversed; Johnson; Jan. 28, 2011]
  1. Registriation requirement after expungement
State v. Phillip Cheatham, No. 95,800 (Shawnee)
Direct appeal; Captial murder
John Val Wachtel, Paul Oller
[Rvd/Rmd; Biles; Jan. 25, 2013]
  1. Ineffective assistance of counsel at guilt phase

Wednesday, September 15, 2010

New article on false confessions

Here is an article from the April, 2010 Stanford Law Review which highlights the phenomenon of false confessions and specifically shows how most false confessions include surprisingly rich, detailed, and accurate information. The article suggests reform to all facets of the criminal justice system in an effort to control the contamination of confessions by improper interrogation techniques.

Here is a recent NY Times piece that discusses this article as well as the case of Eddie Lowry (blogged about here), a man who falsely confessed to a Riley County rape and was later awarded a $7.5 million settlement for his wrongful incarceration.

Hat tip to Melanie Freeman-Johnson for bringing this article to my attention.

Saturday, September 11, 2010

Lawsuit challenges judicial nomination process

Here is an AP article that describes a lawsuit filed in federal court that seeks an injunction against the Supreme Court Nominating Commission from filling the vacancy on the Kansas Supreme Court. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys.

The current selection process is provided for in the Kansas Constitution, and it was specifically approved by Kansas voters in 1958. While it is very unlikely that a federal court is going to tell Kansas how to select its state judges, this lawsuit could create uncertainty in Kansas courts for some time if an injunction is granted.

[Update: here is a link to Judge Belot's decision denying a preliminary injunction stopping the judicial selection process.]

Friday, September 03, 2010

Article on defendant released after habeas win

Here is a Wichita Eagle article reporting on the recent release of Nathaniel Swenson after 11 years in prison. We blogged about the case about three years ago here, when Michael Whalen obtained a remand for evidentiary hearing in Mr. Swenson's habeas case. Then this spring, after the district court apparently denied relief, the COA reversed denial of relief and remanded for a new trial (blogged about here). And after additional delay, Judge Burgess discharged Mr. Swenson.

Congrats to Michael Whalen for his perseverance in this case.

Cumulative judicial and prosecutorial misconduct requires new trial in Jessica's Law case

Carl Folsom won in State v. Kemble, No. 100,824 (Kan. Sept. 3, 2010), obtaining a new trial in a Sedgwick County aggravated indecent liberties prosecution. The KSC reversed due to a combination of judicial miscondcut and prosecutorial misconduct.

The KSC reviewed the transcript in detail to evaluate the judge's interaction with a child witness. The court held that the judge at points was correctly controlling her courtroom, but eventually she egregiously crossed the line and was improperly bolstering a witness:
One can empathize with the frustration a trial judge might experience with a child witness who will not testify consistently with his or her prior statements, especially if the judge might perceive that the prosecutor's soft-spoken demeanor is impeding the search for the truth and precluding the just punishment of a perpetrator of the most despicable conduct in our society. Nevertheless, the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution. The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts. If any of those lines are crossed, the system that has held this nation in good stead for two and a quarter centuries has been compromised. Here, the trial judge crossed the line, not only refusing to follow the better practice of addressing the problem with counsel outside the jury's presence, but failing to exercise the appropriate caution in questioning a witness and making comments in front of the jury.
Defense counsel also objected to a statement by the prosecutor during closing argument that "He [Mr. Kimble] never said I was too drunk to remember until today." The KSC held that this was a Doyle violation:
The State attempts to characterize the closing argument statement as only referring to the "defendant's failure to mention his alleged intoxication when confronted by the victim's family in the immediate aftermath of the incident." Obviously, if defendant was asserting a voluntary intoxication defense, he would be saying that he was too drunk to form a specific intent to commit the crime. Yet, the State would expect the defendant to have sufficient cognitive ability to affirmatively assert, almost contemporaneously with the criminal act, that defendant was relying on the defense of voluntary intoxication, i.e., he was too drunk to know what he was doing, but not too drunk to assert his affirmative legal defenses. The argument is, at best, counterintuitive. Moreover, one of the family members was apparently able to discern Kemble's intoxication without the benefit of his declaration that he was intoxicated.

More importantly, the State's argument does not comport with the actual statement used in closing argument. The statement was, "He never said I was too drunk to remember until today." (Emphasis added.) "Today" was the day of trial; not the immediate aftermath of the incident. The State's attempt to rewrite the statement on appeal is unavailing. The prosecutor committed a Doyle violation, which is clearly outside the permissible bounds of fair comment under the first step of our analysis.
The KSC noted that Doyle is a long established rule that every prosecutor should know. It also noted that the violation occurred in the prosecutor's PowerPoint presentation, showing planning and not a spur-of-the-moment error.

In summary, the KSC held that the combination of the errors deprived Mr. Kimble of a fair trial:
Conceivably, reasonable people might differ in their assessment of whether either the judicial misconduct or the prosecutorial misconduct in this case, when viewed in isolation, requires reversal, i.e., whether the respective individual error was harmless. However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial. As noted above, that denial cannot be cured by declaring the evidence against the defendant to be overwhelming. Accordingly, we reverse Kemble's conviction and remand for a new trial.
Second win for Carl on Jessica's Law cases this summer.

Here is coverage in the Wichita Eagle.
Here is coverage on law.com (registration required).

No property interest in jail booking documents

Washburn student intern Joshua Mikkelsen and I won in State v. Rodriguez, No. 102,449 (Aug. 20, 2010), vacating a Seward County forgery conviction. The prosecution stemmed from Mr. Rodriguez allegedly signing jail intake documents with a false signature. In Kansas, forgery requires intent to defraud, which in turn requires "an intention to deceive another person, and to induce such other person, in reliance upon such deceiption, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." The COA agreed that a prior case, State v. Fisher, 24 Kan. App. 2d 103, 942 P.2d 49 (1997), held that although the state has an administrative interest in accurate fingerprint records, it does not constitute a property interest:
In sum, the State failed to establish it had a property interest that was harmed by Rodriguez' act of signing a false name to the booking documents; thus, the State failed to prove an essential element of forgery.

[Update: the state did not file a PR and the mandate issued September 23, 2010.]

Acquittal in Ford County

Steve Cott got acquittals this week in State v. Fulton, ending a Ford County kidnapping, rape, and aggravated sodomy prosecution.

IAC finding upheld

About two years ago, we blogged about Alice White and the Defender Project getting state habeas relief for a client after a fairly long and arduous process (detailed here). The Court of Appeals just affirmed the habeas grant in Saleem v. State, No. 101,629 (Kan. App. Aug. 27, 2010)(unpublished).

The state argued that defense counsel had made a strategic decision to allow admission of a videotape that included statements about other shootings. The COA held that the record amply supported Judge Leuenberger's findings:
The district court found that Saleem had met his burden and that [defense counsel] did not permit the videotape's admission as part of his trial strategy. The district court's findings are supported by [trial counsel's] testimony at the hearing, in which he candidly admitted his mistake and strongly denied that this failure was part of his trial "strategy."

Nevertheless, the State suggests [defense counsel's] decision to admit the videotape was a strategic decision intended to bolster Saleem's claim that he had acted in self-defense. While the state is correct that [defense counsel] allowed the admission of the videotaped interview for strategic reasons, this fact has no bearing on whether [defense counsel's] representation was constitutionally deficient for allowing the jury to hear the prejudical statement contained within the videotape. Moreover, as the district court noted,"[i]t is preposterous to imagine any attorney . . . to advance prior bad acts of an alleged shooting as trial strategy in a murder case."
The COA went on to find that, especially in a case that focused on allegations of premeditation, the deficient performance was prejudicial and supported the district court's grant of a new trial.

[Update: the state filed a PR on September 23, 2010.]

[Further update: the KSC denied the state's petition and the mandate issued on November 4, 2010.]

Wednesday, September 01, 2010

Thirteen apply for Kansas Supreme Court

Here is the KSC's press release stating that 13 Kansas attorneys have applied for the vacancy on the Supreme Court that was created last month by the retirement of the late Chief Justice Robert Davis. The Supreme Court Nominating Commission will interview applicants for the position on September 27 and 28, so be sure to get any input on any of the applicants in as soon as possible.