Monday, July 29, 2013

Due process required trial judge to recuse

Reid Nelson won in State v. Sawyer, No. 101624 (Kan. July 26, 2013), reversing a Wyandotte County conviction for criminal threat.  The court held that the trial judge was required to recuse himself from the case and that the judge's failure to do so violated Sawyer's due process rights under the U.S. Constitution.

The KSC explained the procedural facts as follows:
Judge McNally has presided over three cases involving Sawyer. One led to a bench trial on assault and battery, from which the judge recused. One led to a jury trial on lewd and lascivious behavior; the judge did not recuse in that case. The last of the three cases was the prosecution underlying this appeal.
 In the district court, Sawyer filed a motion asking Judge McNally to recuse.  Although he had recused in a previous case involving Sawyer, Judge McNally did not recuse from this case, giving the following rationale:
"Well, of course, the difference — the main difference between this case and that case is that in that one the defendant had waived a jury trial and it was a situation where I would be sitting as the finder of fact. And given some of the past dealings between myself and Mr. Sawyer, I though t that would probably be a problem. I don't believe that that's the case here because a jury is going to determine his guilt or innocence."
 The chief judge also denied Sawyer's request.  On appeal to the Kansas COA, Judge McNally's rationale, regarding the difference between a trial judge's role in a bench trial and a trial judge 's role in a jury trial, was upheld.  See State v. Sawyer, 45 Kan. App. 2d 156, 162-63, 244 P.3d 705 (2011).  After granting Sawyer's petition for review, the KSC disagreed, and it reversed his conviction for criminal threat.
 
The KSC explained that there are three bases for the recusal of a judge in Kansas.  To paraphrase, those bases are:
1.  The list of statutory factors that may be alleged in an affidavit of the type filed by Sawyer in this case.  See K.S.A. 20-311d(c)(1)-(5).
2. The Kansas Code of Judicial Conduct.  See Kansas Supreme Court Rule 601 B, Canon 2; Supreme Court Rule 2.11(A) ("A judge shall disqualify himself or her self in any proceeding in which the judge's impartiality might reasonably be questioned.")
3. The Due Process Clause of the Fourteenth Amendment to the United States Constitution.  See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
The KSC noted that the first step in seeking a recusal is to follow the statutory framework: "Under K.S.A. 20-311d, a party must first file a motion for change of judge; if that motion is denied, then the party must immediately file a legally sufficient affidavit alleging grounds set forth in the statute."  But the court held that Sawyer's affidavit was legally insufficient to justify recusal, so it moved on to the due process analysis. 

The KSC cited the famous Caperton case and explained Judge McNally's duty to recuse:
He had already judged himself unable to rule impartially in the earlier prosecution of Sawyer for assault and battery. In Caperton, the Court recognized that a mere heightened risk of actual bias could lead to unacceptable peril to due process. Certainly that is true when bias has previously been admitted and inadequately explained away.
The KSC then explained why reversal of the conviction was necessary:
Reversal and remand are required here. Judge McNally had previously chosen to recuse in Sawyer's assault and battery bench trial; the judge's intemperate demeanor in Sawyer's intervening jury trial for lewd and lascivious behavior drew a stern admonition from the Court of Appeals; and Judge McNally's mere observation that this case involved a jury trial rather than a bench trial did nothing to ameliorate any earlier need for recusal. Trial of this case followed less than 18 months after the lewd and lascivious jury trial, which, in turn, came only 2 months after the assault and battery prosecution in which Judge McNally's own assessment of his impartiality led to recusal. Our experience teaches us that the probability of actual bias in this case was “too high to be tolerable” under the Due Process Clause. The proceeding sank beneath the “ ‘constitutional floor.’ “ Caperton, 556 U.S. at 889.
The KSC reversed Sawyer's conviction for criminal threat and remanded for a new trial with a different judge.  The court also specifically rejected "Judge McNally's and the Court of Appeals' reliance here on the fact that this case was tried to a jury rather than to the bench. Although the judge in a criminal jury trial does not find facts, he or she still must make many rulings that affect the defendant's ability to obtain a fair trial."

Sunday, July 28, 2013

Appellate court should not act as jury

Samuel Schirer and Ryan Eddigner won in State v. Brooks, No. 103,774 (Kan. July 26, 2013), obtaining a new trial in a Crawford County rape prosecution.  The COA had already found that Mr. Brooks had received ineffective assistance of counsel due to counsel's failure to request a continuance to obtain evidence to rebut the complaining witness' testimony that he had a scar on his penis.  But the COA had held that Mr. Brooks had failed to show prejudice and affirmed.

The KSC disagreed, noting that the COA panel appeared to have independently assessed witness credibility and noting that "[i]nterestingly, the panel's credibility calculus did not include any reference to the jury's acquittal of Brooks on five of the seven counts upon which S.C. testified nor any rumination upon what inference might be drawn therefrom about the jury's view of S.C.'s credibility."

Ultimately, the KSC determined that the panel had gone too far in evaluating the strength of the state's case rather than apply the correct test, which asks if there is a reasonable probability of a different outcome:
Given the panel's stated reasons for finding no prejudice, we discern that it ran afoul of the oft-stated rule that an appellate court will not determine the credibility of witnesses or weigh conflicting evidence. "The jury is charged with the responsibility of weighing the evidence and determining witness credibility. Appellate courts do not reweigh the evidence or decide which witnesses are credible." State v. Corbett, 281 Kan. 294, 310, 130 P.3d 1179 (2006). 
The relative importance of testimony about the presence or absence of a penile scar was something the jury was supposed to decide. The panel's queries about the scar evidence, e.g., whether such a scar is permanent, went to the weight to be attached to that evidence and invaded the province of the jury. Likewise, the panel was figuratively on jury duty when it assessed the credibility of the victim. Appellate courts should "let the jury decide whether to believe a witness." State v. Leaper, 291 Kan. 89, 108, 238 P.3d 266 (2010) (Johnson, J., concurring). Certainly, appellate courts should not excuse constitutional violations based upon a cold record assessment of a witness' believability.
Applying the proper test, the KSC held that, but for defense counsel's deficient performance, Mr. Brooks had shown a reasonable probability that the outcome of the case would have been different.  As a result, the KSC reversed and remanded for a new trial.

Sunday, July 21, 2013

Time to talk about unanimity? Even in Kansas?

I was reviewing our recent blog post--prompted by Sentencing Law and Policy's suggestion that Descamps v. U.S., No. 11-9540 (U.S. June 20, 2013) may be one of the most important criminal procedure cases of the last term--when I noted a little part that I had overlooked before.  When discussing the Sixth Amendment implications of the modified categorical approach, the SCOTUS described the Jury Trial Clause as follows :
The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.  (emphasis added)
This quotation does not qualify the unanimity requirement to federal cases (although Descamps is obviously a federal case and any unanimity discussion is dicta).

Non-unanimous verdicts in state criminal cases have been upheld by the SCOTUS, although the rationale has never garnered a majority of the Court.  But, as commentators like Eugene Volokh have noted  (here), the basis for allowing non-unanimous jury verdicts in state court (partial incorporation) is pretty shaky--especially after the McDonald case.  So litigators have been trying to get unanimity cases before the SCOTUS, as recently as this last term.  SCOTUSblog named Miller v. Louisiana,  No. 12-162, raising that very issue, as a petition of the day (here).  The cert petition in Miller was denied on February 19, 2013, but this language in Descamps should embolden Jury Trial Clause litigators.

So what does this have to do with Kansas you ask?  After all, we're not Louisiana or Oregon (states that allow non-unanimous verdicts).  Because we have a statutory right to a unanimous verdict, these issues don't come up, right?

Actually, a very recent case at the KSC turned on whether there is a federal constitutional right to a unanimous verdict.  In State v. Cheffen, No. 105,384 (June 21, 2013), the KSC held that it would not reach a claim regarding failure to poll a jury for the first time on appeal because there is no federal right to a unanimous verdict:
Cheffen instead claims we should consider his jury polling challenge for the first time on appeal because it involves a fundamental right to a unanimous jury verdict. This exception, however, is inapplicable. The right to a unanimous jury verdict is not constitutional—it is statutory.
Similarly, whether the Sixth Amendment imposes a unanimity requirement on states is also important when dealing with requested or unrequested unanimity instructions in multiple acts cases with regard to the harmless error test that might be applied.

Wednesday, July 10, 2013

Proof about prior convictions

We have been spending a lot of time focusing on the recent Alleyne decision and its ramifications. But, as Professor Douglas Berman aptly noted (here), the SCOTUS did decide another case with potential Apprendi ramifications at the end of its term: Descamps v U.S., No. 11-9540 (U.S. June 20, 2013). On first review, it looked like another Armed Career Criminal Act case, which does not tend to pique my Kansas state practice interest. But here is why it may be important:

A long time ago (after Apprendi) we argued that, although Apprendi left a "prior conviction exception," that exception should be limited to the fact of the prior conviction, not other facts proved by extrinsic evidence about the prior conviction.

A common example of this is proof of the prior/nonperson nature of pre-1993 burglary convictions in Kansas. Before 1993, it didn't matter whether a burglary was of a residence or just some other building. After 1993, it makes a big difference in criminal history (burglary of a residence is a person felony, which is much worse for criminal history purposes). So how do we count pre-1993 convictions today? The statute says the judge looks back at the surrounding facts of the prior burglary-if it was of a residence classify it as a person felony. The problem, is that this finding requires determination of facts about the prior conviction, not just the fact of the prior conviction. Often times court services officers simply brought in charging documents specified burglary of a "home" or other extrinsic evidence But that was merely surplusage at the time--it was not a well-pleaded fact.

We raised this after Apprendi with no success in many cases and some have continued to raise it without success. But look at this language from Descamps discussing how the federal court would classify a prior California burglary conviction under the ACCA at page 14 of the majority opinion:
Similarly, consider (though Aguila-Montes did not) the categorical approach’s Sixth Amendment underpinnings. We have held that “[o]ther than the fact of a prior convic­tion, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000). Under ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would(at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allow­ing a sentencing court to “make a disputed” determination “about what the defendant and state judge must haveunderstood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U. S., at 25 (plurality opinion); see id., at 28 (THOMAS, J., concurring in part and concurring in judgment) (stating that such a finding would “giv[e] rise to constitutional error, not doubt”). Hence our insistence on the categorical approach.

Yet again, the Ninth Circuit’s ruling flouts our reasoning—here, by extending judicial factfinding beyond the recog­nition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identify­ing the defendant’s crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct. See Aguila-Montes, 655 F. 3d, at 937. And there’s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sen­tencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting ele­ments of the offense—as distinct from amplifying but legally extraneous circumstances. See, e.g., Richardson v. United States, 526 U. S. 813, 817 (1999). Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. See 544 U. S., at 24–26 (plurality opinion). So when the District Court here en­hanced Descamps’ sentence, based on his supposed acqui­escence to a prosecutorial statement (that he “broke and entered”) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s max­imum sentence.

This seems right on point. If a judge has to look beyond the statute to figure out something about a prior conviction, Apprendi applies.

So I think you should be object to any pre-1993 burglary conviction being scored as a person felony. Because there is no constitutional mechanism to allow juries to make these findings, all pre-1993 prior burglary convictions should be scored as nonperson.

This is just one example. There are probably others. Classification of out of state convictions (including whether out of state DUI convictions are equivalent to Kansas DUI convictions)? Predicate offenses under many statutes? Whether a prior conviction involved sexual motivation? Basically, any time the judge is finding facts about a prior conviction, not just the fact of the prior conviction, you could (and should) argue that Apprendi applies.

Is restitution part of the sentence? If so, does Apprendi apply?

In Kansas, restitution is part of a defendant's sentence: "Restitution is one of the dispositions authorized by K.S.A. 21–4603d, and it therefore constitutes part of a criminal defendant's sentence. K.S.A. 21–4603d(b)(1)."  State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011).   So, does Apprendi  apply to a determination regarding restitution?  Courts around the country have been reluctant to so hold, either finding that restitution is not part of the criminal sentence or that Apprendi only applies to incarcerative sentences or incarcerative portions of sentences.

Recently, in Southern Union Co. v. United States, the SCOTUS soundly rejected the latter rationale, applying Apprendi to the imposition of criminal fines. In that case, the amount of the fine was tied to the number of days the statute was violated. The SCOTUS noted that "the salient [historical] question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property. Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury." 132 S.Ct at 2353 (emphasis added). The SCOTUS held that the district court's factual finding as to the number of noncompliant days violated Apprendi.

So, is restitution in Kansas pegged to a determination of specified facts?  In a very recent decision, State v. Hall, 2013 WL 3242252, the KSC reminded us that determining restitution is very factual in nature:  “Determining the value of an aggrieved party’s loss raises an issue of fact.”  In addition, at a restitution is pegged to a “factual finding” of causation between the crime and the victim’s loss.
 
Is restitution part of the criminal sentence?  McDaniel says yes.  Does the amount of restitution pegged to specified factual determinations?  Hall says yes.  Does Apprendi  apply to such determinations?  Southern Union says yes.

So, Kansas practitioners should strongly consider making an Apprendi challenge whenever the state seeks restitution in a criminal case.

Other Apprendi/Alleyne issues

Carl blogged (here) about Alleyne and our case which was recently GVR'd from the SCOTUS. As he noted, this case will likely have an impact on hard-50 sentencing in Kansas. But I thought I would mention a couple more places where Alleyne may breath some life into old issues. (I'm guessing there are many more, please feel free to comment).

First, you could argue that upward dispositional departures should be covered by Apprendi. The KSC rejected that claim shortly after Apprendi in a divided opinion in State v.Carr. In Carr, the majority suggested that, because probation was an act of grace, imposition of prison sentence did not increase a sentence. But Alleyne at least calls that result into question (if it was sound in the first place). Under the Kansas Sentencing Guidelines, a defendant must receive probation unless the district court makes additional findings. So it is difficult to reason that an imposed prison term is authorized by the jury's verdict. So if you have a case where the state is seeking an upward dispositional departure, you should object on Alleyne grounds. If the district court imposes the dispositional departure over your objection, you should appeal as soon as possible. We would need to take steps to try to stay the district court’s judgment as soon as possible (to avoid mootness). If the district court won’t stay the judgment, contact us and we can follow up with the appellate court.

Another possible application is certification for prosecution as an adult. The KSC rejected that claim in State v. Jones by reasoning that the certification decision did not result in a sentence enhancement, but merely determined which court would decide the case, juvenile or adult. The KSC later recognized that the practical differences (other than punishment) between the juvenile and adult systems have narrowed. In re L.M. ("proceedings under the KJJC fit within the meaning of the phrase "all prosecutions" as set forth in §10 of the Kansas Constitution Bill of Rights, and juveniles have a right to a jury trial under the Kansas Constitution"). In any case, Alleyne reiterates that the question should be: does the jury's verdict, by itself justify imposition of an adult sentence on a juvenile?  Because the answer is no, Alleyne arguably applies. So, if you are dealing with an adult certification case, you should object on Apprendi grounds at the time of certification and again at the time of adult sentencing.

Monday, July 01, 2013

Tenacity is a virtue

Randall Hodgkinson and Joanna Labastida won in Astorga v. Kansas, Case No. 12-7568 (U.S. June 24, 2013), obtaining a GVR (certiorari granted, judgment vacated, and case remanded) from the U.S. Supreme Court based on the recent case of Alleyne v. United States, 570 U.S. ___ (2013).  The Court's order will require reconsideration of the Hard-50 sentence imposed in a Leavenworth County murder case.  Here is coverage of the case by Doug Berman's Sentencing Law and Policy blog.  Teri Barr (now tribal judge) wrote the Kansas Supreme Court brief and raised the Apprendi issue, even in the face of repeated previous rejections.

In Alleyne, the SCOTUS held that mandatory minimum sentences increase the penalty for a crime, so any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to the jury and proven beyond a reasonable doubt.  The case involved a conviction under 18 U.S.C. 924(c) for possession of a firearm during a crime of violence, where the mandatory minimum sentence was increased from 5 years to 7 years based on a judge's finding at sentencing that a firearm was brandished during the offense.  The issue in the case was whether jury trial rights applied such that brandishing had to be found beyond a reasonable doubt by a unanimous jury before the 7-year minimum could be imposed by the sentencing court.

 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that Sixth Amendment rights applied to any factual findings that increased a maximum punishment.  Finding Apprendi applicable, the Alleyne Court held: “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt. . . .  Mandatory minimum sentences increase the penalty for a crime.  It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”  Thus, the fact of whether a firearm was "brandished" during a 924(c) offense was an element of the offense that needed to be found by a jury beyond a reasonable doubt (or waived).

As blogged about here, here, and here (and as is evident in the Astorga GVR), the decision in Alleyne will require the KSC to reconsider the constitutionality of Kansas' Hard-50 sentencing scheme.  Under K.S.A. 21-6620 and K.S.A. 21-6623 (and under the prior versions of the statute), a sentencing judge imposing a life sentence in a first-degree murder case has to make factual findings of aggravating factors in order to increase a defendant's sentence from the hard 25 to a hard 50. Numerous defendants have challenged the Hard-40 and Hard-50 sentencing schemes, arguing that the judicial findings of aggravating factors increase the penalty for the offense (by increasing the mandatory minimum or, conversely, denying parole eligibility) and should be found by a jury beyond a reasonable doubt. See State v. Conley, 270 Kan. 18 (2000), cert. denied, 532 U.S. 932 (2001), State v. Ellmaker, 289 Kan. 1132, 1155-56 (2009) (listing several of the numerous challenges to the constitutionality of the Hard-50 statutory scheme).

This case demonstrates why some issues need to be preserved and litigated even if the appellate courts have consistently rejected them (in district court and on appeal).  This fact was noted in SCOTUSblog's coverage of Alleyne: "the criminal defense bar may take some comfort in the knowledge that repeating an oft-denied request to overrule one of the Court’s precedents is not always a dead end."  To use a Seinfeld analogy- "[overturning case law] is like knocking over a coke machine.  You can't do it in one push. You gotta rock it back and forth a few times, and then it goes over."  Randall has been litigating this issue for as long as I can remember (as have other appellate defenders).

[Update: here is coverage in the Hutchinson News evincing that this Alleyne may have quick impact in some Hard-50 cases.]

[Further update: here is further coverage in the Kansas City Star detailing some other cases possibly impacted by Alleyne.  Hat tip to Sentencing Law and Policy.]

[Further update: here is an article in the Lawrence Journal World reporting that the Governor is calling a special session to address the potential Alleyne issue in connection with Hard-50 sentences.  And here is another article talking about the costs of such a session.]

[Further update: here is a link to the Governor's press release regarding the special session.]

[Further update: here is an article in the Topeka Capital-Journal regarding the Special Judiciary Committee meeting in advance of the special session; here is an article from the Lawrence Journal World; here is an article (including some audio) on Kansas Public Radio.]

[Further update:  in State v. Astorga, No. 103,083 (Kan. May 23, 2014), following its precedent (blogged about here), the KSC reversed Mr. Astorga's hard-50 sentence and remanded for further proceedings.)