Still reversed

Several months ago we blogged (here) about Michael Whalen's win in a sexually violent predator act prosecution. As reported there, the COA expressed harsh concern for what appeared, based on the state of the record at that time, to be the state using manufactured evidence. As also updated in that blog entry, the state later "found" some of the reports at issue and added them to the record and sought rehearing, which the COA granted.

The COA again reversed in In re Ontiberos, No. 100,362 (Kan. App. Jan. 28, 2011). The COA kept its original analysis regarding the right to effective assistance of counsel and misconduct. Regarding the use of the reports, the COA still was pretty harsh:

But the fundamental fact is clear; the documents contained in Exhibit 1 were not admitted into evidence and the State's attorney used them to cross-examine Ontiberos and his expert witness as if they were. The court explicitly stated the documents were not to be considered by the jury. We believe the prejudicial use of these records by the State was improper and denied Ontiberos a fair trial. Above all, the use of legally admissible evidence relevant to the issues is a hallmark of a fair trial.

. . . .

Ontiberos argues the State used a nonexistent prison report to cross-examine his expert, Dr. Barnett. In fact, in its brief the State conceded the point and told us the prison disciplinary report did not exist. . . . Then, after receiving our opinion criticizing the use of nonexistent evidence, the State claimed to have "found" the report buried in Exhibit 1 and asked us to rehear the matter. In the interests of justice, we did so.

The "found" document does not refer to a knife. It does report a disciplinary action taken by a prison official against Ontiberos in 1991 for having an ink pen with duct tape wrapped around it. The report concluded it was "less dangerous" contraband according to prison rules.

We cannot ignore the State's exaggeration of this report. Counsel asked Dr. Barnett, who was testifying for Ontiberos, about a 2003 prison incident where Ontiberos fashioned a knife out of a pen and duct tape. Assuming for the sake of the State's argument this time that this "found" document is the report that serves as the basis for the State's question, we see two obvious errors; the date of the incident and calling the contraband a knife.

Because Ontiberos' attorney did not object to these improper uses and because of other deficient performance, the COA remands for a new trial.

[Update: the state filed a PR on February 22, 2011 and Mr. Ontiberos filed a cross-PR on March 8, 2011.]

[Further update: the KSC granted both PRs on September 21, 2011.]

[Further update: the KSC reversed the district court and remanded for a new trial on August 17, 2012, blogged about here.]