Friday, January 25, 2013

Capital murder conviction reversed for IAC

Paul R. Oller and John Val Wachtel won in State v. Cheatham, No. 95,800 (Kan. Jan. 25, 2013), obtaining a new trial in a capital guilt phase based on ineffective assistance of counsel.  On appeal, the KSC remanded for IAC findings (blogged about here).  The state had already conceded that Mr. Cheatham was entitled to a new penalty-phase trial (blogged about here), but the district court had held on remand that, although counsel's trial performance was deficient, Mr. Cheatham had not shown sufficient prejudice with regard to the guilt-phase.  The KSC disagreed.  Here is its summary:
We hold that trial counsel's representation denied Cheatham the fair trial he is guaranteed by both the federal and state constitutions. Specifically, we hold that counsel's performance was deficient in several respects, which were most seriously problematic when he volunteered to the jury that Cheatham had a prior voluntary manslaughter conviction and referred repeatedly to his client as a "professional drug dealer" and "shooter of people." This denied Cheatham his right to a fair trial. We hold further that under the circumstances in this case counsel's fee arrangement created an actual conflict of interest that adversely affected the adequacy of Cheatham's defense. We reverse his convictions and remand the case for a new trial.
I will leave to the reader to check out case for the details of the deficiencies that caused even the district court to comment that the defense trial attorney "had no business taking on a death penalty case." But at the end of the day, Mr. Cheatham will receive a new guilt-phase trial.

Here is a Topeka Capital-Journal article where the DA laments having to retry Mr. Cheatham.  It's sort of an interesting question.  Does the state or the trial court have any responsibility to ensure that a defendant is getting a fair trial in conformity with the law?  If the DA sees an attorney that is painfully and obviously providing ineffective assistance of counsel, does that DA have any duty to do anything about it?  Or should they simply take advantage of it and hope it does result in reversal later?  Could the trial court have done anything about it?

Here is coverage in the Hutchinson News.

Wednesday, January 23, 2013

Considering cost of incarceration in what is really shoplifiting

This blog post by Doug Berman at Sentencing Law and Policy sort of reminded me of a class of cases that has been bothering me of late.  We occassionally see shoplifting cases (fairly low level misdemeanor offenses) transformed into aggravated burglary cases (pretty high level felony offenses) when a person has supposedly been "banned" from a store.

The elements of burglary are that a person enters or remains in a building without authority to enter or remain and with intent to commit a theft therein.  It's aggravated burglary if another person is present in the building. 

The typical scenario that we see is that a person is caught shoplifiting $20 worth of property in some store, say Wal-Mart.  Wal-Mart employees may then tell that person "You are hereby banned from all Wal-Mart property anywhere on earth."  Then, if that person is later caught shoplifting $20 worth of property in a Wal-Mart, the state doesn't just prosecute for shoplifting and/or criminal trespass, but for aggravated burglary, on the theory that the person is not authorized to be in the building and there is almost always another person present in a business that is open to the public.  Aggravated burglary is a pretty severe offense. If the client has a bunch of misdemeanor battery convictions or a couple of residential burglaries or some combination, the presumptive prison sentence is ten years.  As noted in the blog post, incarcerating a person for ten years costs at least several hundred thousand dollars.  Even if the client has no significant criminal history, the prumptive prison sentence is a little less than three years at a cost of tens of thousands of dollars.

Now I know that shoplifting is a real problem for the Wal-Marts of the world.  But I wonder if prosecutors and judges are accurately taking into consideration the cost of incarceration.  The state of Kansas is spending hundreds of thousands of dollars of taxpayer money incarcertaing persons to protect Wal-Mart from a $20 shoplifter?

This is an abuse of this statute.  The "aggravated" part of aggravated burglary seems to me to be directed at residential burglaries, where people are in the home, not a business that is open to the public where of course a person is always present.  In fact, many states and the Model Penal Code specfically exempt businesses open to the public from their buglary statutes.  Shoplifters and trespassers should be prosecuted as shoplifters and trespassers and sentenced appropriately.

I'm often surprised that judges in Kansas impose decade long sentences in these types of cases.  Maybe putting on evidence of the costs of incarceration or requiring judges to consider the cost of incarceration in relation to the cost inflicted should be a part of the sentencing equation.

Monday, January 21, 2013

Failure to call key witnesses is IAC

Debra Wilson won in Shumway v. State, No. 107,248 (Kan. App. Jan. 18, 2013), obtaining a new trial in a habeas corpus proceeding stemming from a Shawnee County murder prosecution.  In some cases, trial counsel could not remember why they did not call certain witnesses; in other cases they did not have adequate reason to not call certain witnesses.  The COA held that this record did not support the district court's findings that failure to call several defense witnesses was a trial strategy.  Finally, in light of the weak case, in part based on snitch testimony, the COA held the failure was prejudicial:
As discussed earlier, Angela Kendall's testimony would have contradicted the accounts, sworn to under oath, of John and Mary Finney. Moreover, John and Mary Finney learned details of the crime from police, testified for benefits, and their claims were not corroborated by any physical evidence linking Shumway to the crime or the crime scene. Trial counsel offered no tactical reason for failing to interview Kendall or use her as a witness. Counsel's failure to investigate a disinterested witness, with no reason to lie for Shumway, who would have testified that the victim was with her, alive and well, both during and well past the time John Finney claimed that Davis was beaten to death by Shumway, was unreasonable.
In this case, the time when Davis was beaten to death was a critical factor in determining Shumway's innocence or guilt. Earlier we discussed trial counsel's failure to call either Angela Dennis or Catherine Dennis as an alibi witness. The testimony of either Angela or Catherine might have established Shumway's alibi to Davis' murder and would have further eroded the credibility of John and Mary Finney.
Moreover, if Davis had been killed before midnight, according to John Finney's testimony, the testimony of Angela Kendall that she was with Davis until 1 a.m. to 2 a.m. would have shown that Davis was not killed when John Finney claimed. As a result, Kendall's testimony would have furnished Shumway with a defense to Davis' murder. Also, Kendall's testimony would have corroborated the alibi testimony of Angela Dennis and Catherine Dennis.
Finally Treiber's testimony that Love had threatened Davis' life just hours before he was found murdered would have furnished strong support to Shumway's "theory of innocence," that Love was Davis' killer. Because Treiber's evidence, standing alone, could have caused reasonable doubt in the minds of the jurors, the failure to present this evidence was prejudicial to Shumway's theory of defense.
The inconsistent statements and credibility problems of the State's key witnesses coupled with the possible favorable testimony from uncalled witnesses would have cast doubt on the State's case. Furthermore, there was no physical evidence: no fingerprints, no fibers, no blood, tying Shumway to this crime. As a result, we determine that the trial counsel's deficient performance prejudiced the defense so as to deprive Shumway of a fair trial.
There is also some pretty good language in this case regarding relation-back of claims in an amended 1507 petition (albeit some harsh language for both parties' failure to address that issue on appeal).

[Update: the state filed a PR on February 13, 2013.]

[Update: the KSC denied the state's PR and the mandate issued on October 23, 2013.]

Wednesday, January 16, 2013

Another year gone by . . .

On January 16, 2006, Kansas Defenders went online.  It's seven years and 948 posts later.  Carl and I got a little busy in 2012 and missed a lot.  But we are trying to catch up and will work to keep on top of things in 2013.  And we will be rolling out a couple new features and even a new contributor this year, so keep checking back!

Monday, January 14, 2013

Two new judges for the COA

Here is the Governor's press release announcing the appointment of District Judge Anthony Powell (from Wichita) and District Judge Kim Schroeder (from Hugoton) to the Kansas Court of Appeals, filling vacancies created by Judge Greene's passing and Judge Marquardt's retirement.  It's been a while since we've had a COA judge from west of Salina, so it will be interesting to see what these new faces bring to the court.