Friday, August 24, 2012

KSVPA requires effective assistance of counsel

Michael P. Whalen won in In re Ontiberos, No. 100,362 (Aug. 17, 2012), obtaining a new trial in a Sedgwick County Kansas Sexually Violent Predator Act proceeding.  This case had been in the blog a couple of times (here and here) on its way to the KSC.  The KSC established that (1) respondents in KSVPA cases have a constitutional right to effective assistance of counsel, (2) that respondents can raise and IAC claim though a petition for writ of habeas corpus under K.S.A. 60-1501, and (3) that Mr. Ontiberos in fact recieved IAC.

The KSC distinguished KSVPA proceedings from other civil proceedings where no constitutional right to counsel attaches.  And after considering several factors, the private interest involved (liberty), risk of erroneous deprivation, and governmental burden of requiring counsel, the KSC held that the right to counsel did apply:
We hold that the caselaw and theMathews factors support a holding that Ontiberos has a due process right to the appointment of counsel at the KSVPA trial. The Court of Appeals erred by holding otherwise. And since we have held that there is a constitutional right to assistance of counsel in KSVPA proceedings, our caselaw instructs that this right carries with it a correlative right to competent, effective counsel.
As a side note, the KSC analyzed this constitutional right as arising from "the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, or Section 18 of the Kansas Constitution Bill of Rights," and ultimately held that Mr. Ontiberos "has a right to counsel under the federal and state constitutional due process provisions." (emphasis added).  So this is a state constitutional ruling.

The KSC went on to hold that persons held under the KSVPA can use K.S.A. 60-1501 as a vehicle for raising IAC claims and then, applying Strickland, found that appointed counsel's failure to introduce corroborating evidence, stipulation to the state's expert's review of evidence, and failure to object to cross-examination (including a mistatement of fact by the prosecutor), showed IAC:
We find it disturbing that the State's method of cross-examination pervaded the trial without intervention by Ontiberos' advocate. No evidence was admitted for the jury's review to determine the accuracy of the facts alleged to underlie the State's questions, and this was particularly egregious since some of the State's questions were not supported by the record. This again suggests Ontiberos' trial counsel lacked sufficient familiarity with the evidence in his case and the rules governing admissibility of evidence. And while the substance of the parties' stipulation is not entirely clear, we can tell without further detail that it was ineffective assistance of counsel for Ontiberos' attorney to enter into a stipulation that avoided the need to admit evidence that would allow the jury to make these essential determinations.
The KSC held the IAC was cumulatively prejudicial and, therefore, reversed and remanded for a new trial.

Finally, the KSC noted that the prosecutors' tactics in this case was misconduct "under any standard":
Just as it was ineffective assistance of counsel for Ontiberos' attorney to allow the State to cross-examine Ontiberos and Dr. Barnett without admitting into evidence the documents the State relied on for impeachment, the State committed error by cross-examining the witnesses in this fashion. By failing to identify and admit into evidence the documents the State relied upon, the State prevented the jury from deciding the facts and properly assessing credibility. It also allowed the State to mischaracterize the KDOC discipline report and insinuate Ontiberos was disciplined while imprisoned for having an unauthorized weapon without support in the record. This is misconduct under any standard. If the State initiates another civil commitment proceeding against Ontiberos, the State must admit extrinsic evidence to complete the impeachment if a trial witness denies making a prior inconsistent statement or the witness claims that he or she cannot remember the events that form the factual premise for the question.
Here is coverage of the case in the Wichita Eagle.

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