Friday, February 25, 2011

Defense attorney's job is to defend

Meryl Carver-Allmond won in State v. Charles Smith, No. 99,655 (Kan. Feb. 11, 2011), obtaining a new trial in a Douglas County robbery conviction. We blogged about this case here when Meryl won in the COA. The state filed a PR, which the KSC granted, ending in the same result--a new trial:
However, the attorney's presentation of the withdrawal motion suggests that the problem may not have been based upon the falsity of the facts Smith wanted introduced. Those facts, e.g., whether Smith suffered from a physical infirmity or whether he had income from a job or a workers compensation claim, were easily verifiable and apparently the attorney did have knowledge that not all of the facts were false because he related that Smith was receiving workers compensation benefits. Moreover, if the problem had been false facts, the attorney could have simply advised the court that his client wanted him to introduce false testimony and the matter could have been quickly resolved.

Instead, the defense attorney, Rumsey, commenced his presentation by explaining that he was convinced from viewing the videotape that his client was guilty. He then related that the evidence Smith wanted to introduce would create an inference that Smith lacked the motive and ability to commit the robbery. Finally, Rumsey declared that the problem was that Rumsey would know that Smith's evidence would be false or fraudulent. In context, the argument suggests that Rumsey believed that he could not introduce any evidence, even truthful facts, if that evidence might create an inference that Smith was not guilty, because Rumsey was convinced of Smith's guilt, i.e., the inference created by the evidence would be false or fraudulent. The State makes that very argument on appeal, asserting that any attorney viewing the videotape would identify Smith as the robber and would thereby be precluded from presenting the evidence Smith wanted introduced.

The fundamental flaw in Rumsey's apparent withdrawal motion argument (and the State's position on appeal) is that it ignores the separation of duties in a criminal 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." State v. Kemble, 291 Kan. 109, 238 P.3d 251, 260 (2010). If any of those lines are crossed, the criminal justice system is compromised.

Here, the jury, as factfinder and final arbiter of guilt, had the sole responsibility to view the videotape, to look at the defendant, to make a finding as to whether the person shown in the videotape was the defendant, and, ultimately, to determine whether the defendant was guilty of robbery. Rumsey's duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. Rumsey exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if Rumsey's refusal to introduce evidence on Smith's behalf was based upon Rumsey's out-of-bounds determination of guilt, rather than on the falsity of the evidence, Smith's dissatisfaction was justified.
A good result after a long wait.

Thursday, February 24, 2011

State failed to preserve departure notice issue

Janine Cox won in State v. Washington, No. 103,850 (Kan. App. Feb. 11, 2011)(unpublished), affirming Judge Hampton's downward durational departure sentence in a Ford County possession case. Mr. Washington's presumptive prison sentence was between 28 and 32 months. In recognition of time spent in jail that would not otherwise be credited, Judge Hampton, on his own motion, imposed a downward durational departure to 23 months. The state appealed. [Really? Over five months?]

The COA affirmed. The state's main claim on appeal was that it did not receive notice of Judge Hampton's intent to depart. The COA held that, while the notice was not reasonable, the state had failed to preserve the issue:
However, as noted by Washington, the State did not object to the lack of notice at the sentencing hearing. Generally, "where a defendant fails to object to the notice of departure at the time of sentencing, any issue relative to the departure is not preserved for appeal." In the instant case, the State did not object to the lack of notice after the court pronounced the sentence, requested a continuance, or made a proffer of the evidence that would have been presented to refute the departure factors. Accordingly . . . we find that the issue has not been preserved for appeal.
So, procedural default works both ways after all!

[Update: the state did not file a PR and the mandate issued on March 18, 2011.]

Tuesday, February 15, 2011

Nice article on innocence investigation

Here is an article titled "Is Convicted Murderer Really a Victim?" reporting on the Rhodes case, which has been investigated by Ron Sylvester from the Wichita Eagle and Rebecca Woodman and her wrongful convictions class at Washburn Law School. (Here is a previous blog entry on the team-up). There is also a link to their live chat on the issue from Monday. The article does a nice job of describing the proof discrepancies and the problems associated with trying to prove or disprove innocence when the evidence is lost or destroyed.

Sunday, February 13, 2011

April 2011 Special KSC Docket (Salina)

Here are the criminal cases on the KSC docket for April 13, 2011. This was a special setting of the KSC and the first time in modern memory that the Court sat outside of Topeka (here is the news release on the special setting).

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.

April 13--Wednesday--p.m.
State v. Vernon Gilliland, No. 102,265 (Saline)
Direct appeal; Agg Crim Sodomy
Heather Cessna (brief); Patrick H. Dunn (argue)
[Affd/Vacd/Rmd; Luckert; May 11, 2012]
  1. Failure to suppress statements
  2. Improper exclusion of evidence under rape shield
  3. Failure to hold taint hearing on investigative techniques
  4. Improper instruction (Salts)
State v. Myron Coleman, No. 101,621 (Reno)
Direct appeal (petition for review); Possess cocaine with intent
Randall L. Hodgkinson
[Rvd/Rmd; Rosen; Aug. 12, 2011]
  1. Failure to suppress (lack of reasonable suspicion)
  2. Failure to suppress (no authority to detain parollee)
State v. Ho Duong, No. 101,700 (Sedgwick)
Direct appeal; Agg Ind Liberties
Michelle Davis
[Affd/Vacd/Rmd; Beier; Aug. 12, 2011]
  1. Prosecutorial misconduct
  2. Failure to give eyewitness ID instruction
  3. Improper Allen instruction
  4. Improper imposition of lifetime electronic monitoring

Tuesday, February 08, 2011

I beg your pardon....

Alice White and Jean Phillips of the KU Project for Innocence & Post-Conviction Remedies (formerly known as the Defender Project) won a pardon last month for Frederick Umoja, who was convicted of third-degree robbery in 1969. The pardon was issued by Gov. Mark Parkinson.

According to this LJWorld article, Umoja was one of the "Wichita 8," a group of black defendants convicted in 1969 by an all-white Sedgwick County jury. The trial judge (former AG Robert Stephan) described the racial atmosphere at the trial as "very polarized." Umoja had been living in exile in Africa since 1970, as he fled the country before sentencing. Before leaving office, Gov. Parkinson pardoned three of the Wichita 8, noting that the men were convicted of a crime that had since been repealed.