County attorney races

Here is a Hutch News article reporting on several county attorney races around the state, including PD Lynn Koehn running for Haskell County Attorney. If you have any other info about interesting prosecutorial races, please comment--especially if they involve criminal defense attorneys.

Another Jessica's Law acquittal

I received a report that Angela Stoller of the Junction City PD's office won in State v. Schweitzer getting a complete acquittal in a Geary County Jessica's Law prosecution involving a count of aggravated indecent liberties and aggravated intimidation. The jury took less than an hour to acquit.

Acquittal in Rice County

Here is a Hutch News article reporting that Sarah McKinnon and Kelly Driscoll won complete acquittal in a Jessica's Law case involving ten counts of rape and twenty other charges in State v. Gregory out of Lyons in Rice County. Sarah did a good job of giving credit to the small-town jury in this article.

Threat to take away kids is coercive

Jennifer Roth, former ADO and current Shawnee County PD, won in State v. Brown, No. 96,862 (Kan. May 16, 2008) affirming Judge Parrish's suppression of statements in a Shawnee County child abuse prosecution. My previous blogs about this case here and here provide more details. Although the KSC didn't draw an absolute line, it made it clear that coercive statements obtained during CINC proceedings are not likely to later be admissible in a criminal case:

An excerpt from the case plan for the time from May 20, 2003, to November 16, 2003, shows the task: "Chris and/or Michelle will admit how injuries were sustained to children." A termination of parental rights motion was filed on January 16, 2004, and one of the factual bases listed was that the parents allowed the children to be harmed and could not or would not provide a reasonable explanation for the injuries. A permanency-objectives form listed a target date of August 16, 2004, for the parents to admit how the injuries were sustained to the children, showing that the task continued to be required after the termination motion was filed. Kansas children's Services League reports informed the district court that the agency could not assure the safety of the children in the parents' home until the cause of the injuries was made known.

The pretrial conference for the termination proceedings was set for January 5, 2005, and the trial was set for March 29, 2005. The records from the child in need of care (CINC) proceedings did not show any additional problems in the family. The caseworker's deposition confirmed there were no problems such as drug abuse or other issues of a major concern outside of the parents' inability to provide a reasonable explanation for the injuries.

These facts show that Brown was placed in a "classic penalty" situation. Although SRS may not have been motivated to obtain an admission of abuse because it planned to ensure a criminal prosecution, the penalty that Brown faced if he did not make a statement to SRS was the type of penalty capable of coercing incriminating testimony from him. His failure to invoke his constitutional privilege against self-incrimination is therefore excused, and the privilege became self-executing under the facts of this case.

The KSC went on to reject any sort of balancing between the privilege against self-incrimination with the state's interest in protecting the child:

The State also argues that the Court of Appeals improperly relied on cases in which the purpose of the interrogations was to aid law enforcement in preparing a criminal case. The State distinguishes the present case because the admissions that the State was seeking were aimed at protecting children from abuse and neglect and were not aimed at preparing a criminal case against the defendant. The argument follows that the purpose in trying to get the information from the Browns was constructive so that recommendations could be made to ensure the parents would be able to safely parent their children.

It appears the State seeks to balance its interest in protecting the welfare of children against a parent's constitutional privilege against self-incrimination. The United States Supreme Court, however, has rejected such a balancing of interests when dealing with the privilege against self-incrimination "in its pristine form." New Jersey v. Portash, 440 U.S. 450, 459 (1979) ("Balancing . . . is not simply unnecessary. It is impermissible.").

We are not called upon in this case to set out rules governing how social service agencies should conduct CINC investigations or treatment plans other than to state that such CINC proceedings based on those investigations and/or intervention plans must remain within constitutional limits.

It seems like a correct result that, where the state threatens to take away your children unless you confess, those statements are not voluntary. And every judge that looked at the question thought so!

SW Kansas acquittals

In response to my inquiry, Lynn Koehn reports from the Garden City PD's office that he has been busy winning cases: In State v. Garcia, a Seward County agg robbery/agg burglary/agg assault/theft/crim damage prosecution ends with jury verdict of misdemeanor assault (judge granted directed verdict on agg burglary and crim damage, jury acquits on all except lesser of assault). In State v. Martinez, a Seward Count attempted agg burglary, criminal threat, and conspiracy prosecution results in directed verdict on conspiracy and acquittal by jury on remaining counts. And in State v. Eatmon, jury acquits in a Finney County criminal threat prosecution. Way to defend your clients in the Wild Wild West!

Lots of success in Shawnee County

Here is a Topeka Capital-Journal article reporting that Wendell Betts won in State v. Roberts, getting not guilty verdicts in a Shawnee County attempted aggravated robbery and aggravated battery prosecution. The newspaper article says the jury was only out 40 minutes, although my sources tell me it was more like 30 minutes.

Other successes from Shawnee County in the couple of weeks include Cindy Sewell, who won in State v. Harrison, getting a not guilty verdict in a rape (force or fear) prosecution; Jennifer Roth, who won in State v. Patterson, getting a not guilty verdict in a felony criminal damage to property prosecution; and Stacey Donovan, who won in State v. Jackson, getting a not guilty verdict in a criminal threat prosecution.

Delayed justice

Here is a nice Hutch News article reporting on a Reno County acquittal after the client spent a year in jail pretrial. The article does a nice job of pointing out the delays caused by high turnover in both the prosecutor and public defender offices:

Bradley Verstraete spent a year in jail after his arrest in August 2006, when sheriff's officers suspected he was attempting to manufacture methamphetamine.

But it took a Reno County jury just an hour to determine he was innocent.

Officers said little to him when he was released from the Reno County Jail, Verstraete said. "They just wished me luck."

Now, the 36-year-old man needs all the luck he can get. Verstraete said his only possessions are what he was wearing when he was set free."I'm just glad it's over," he said. "It was a pretty big inconvenience in life."

Yeah, I guess a year in jail would be an inconvenience to me too. Good job to Sarah McKinnon for getting the right result in the end.

Acquittal in Wichita

John Sullivan and Quentin Pittman won an acquittal in State v. Cochran, a Sedgwick County rape prosecution. Reportedly, the jury was pretty reluctant to acquit and apologized to the prosectuor, but felt compelled by their oath to make the finding according to the law and evidence. Nice to hear a jury that understands that the right road isn't always the easiest or most comfortable one!

Threat to take away the kids is a threat

Jennifer Roth won in State v. Brown, No. 96,862 (Kan. App. May 4, 2007) where the COA affirmed Judge Parish's order suppressing her client's statements in a Shawnee County child abuse prosecution:

When a parent is essentially compelled to choose between confessing guilt in abusing his or her own child or losing his or her parental rights, the choice is between two fundamental rights under the constitution. . . . Clearly, it was entirely appropriate for the district court to consider the pressure placed on Brown by the CINC proceedings in considering the totality of the circumstances surrounding his confession. We think this was especially important here, given the assessment of SRS that Brown may have been predisposed to falsify an admission of his guilt "just to get the kids
back."

Having been subjected to persistent pressure from SRS and the CINC proceedings, and faced with the inevitable loss of his parental rights, Brown succumbed and made a confession that would subject himself to a criminal prosecution. Notwithstanding his stated motivations and his being given Miranda rights at the time of the statement, we decline to second-guess the district court, which determined from the totality of the circumstances that Brown's statement was not freely and voluntarily made.

The State argues that the police "did nothing wrong" after Brown arrived at the station and made his statements and that our focus should be limited to these circumstances. We believe, however, that such a limited focus of the inquiry could provide unlawful safe harbor to coercive conduct prior to the precise moment of the statement. For example, would the Constitution permit admission of a statement resulting from a post-Miranda encounter when the encounter itself was provoked by a psychologist employed by a state agency for the purpose of provoking a confession? We believe that established precedent in Kansas and in the federal courts compels an examination of the totality of the circumstances, and such an inquiry must not be limited strictly to behavior immediately prior to a suspect's statement but rather should focus on any and all aspects of the circumstances that may have bearing on whether the suspect's will was overborne when the statement was made. As stated by the United States Supreme Court:

"We think its clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in each case is whether the defendant's will was overborne at the time he confessed. If so, the confession cannot be deemed 'the product of a rational intellect and a free will.'" Lynumn [v. Illinois, 372 U.S. 528, 534 (1963)].

The COA cited several out-of-state cases supporting the idea that threats to take away your children are coercive. Seems like a risky choice for the state to have appealed this order.

Here is my previous blog entry on this case.

[Update: the state filed a PR on June 4, 2007.]

[Further update: the KSC granted the state's PR on October 1, 2007. The case will likely be argued in spring 2008].

[Further update: the KSC affirmed the COA and Judge Parrish on May 16, 2008.]

Maybe it's not still America?

JoAn M. Lindfors and Pamela S. Sullivan of the Salina PDs office won in State v. Lee, No. 95,348 (Kan. April 27, 2007), affirming Judge Hebert's suppression ruling. Officers received word of a person acting sort of strangely in a city part and while investigating sought to pat him down, eventually uncovering drugs. Judge Hebert had suppressed the evidence stating that:

This is still America, and I don't think the fact that somebody is allegedly acting strange or, quote, looked out of place in a park, waives that person's rights as a citizen. The officers ascertained his identity and his business and that was all they had a right or responsibility to do at this point.

But the KSC disagreed with Judge Hebert and held that the encounter between police and Mr. Lee was a consensual encounter and, therefore, the resultant consent to pat-down for weapons did not implicate the Fourth Amendment. One interesting part of that decision in relation to some recent Lt. Columbo cases is that the KSC explicitly relied on Mr. Lee's subjective belief regarding whether he felt free to leave (he testified that he did feel free to go about his business).

The KSC did hold, however, that the scope of the consent was a search for weapons and that after conducting that pat-down and feeling an indeterminate object, the nature of the object was outside the scope of consent and not immediately apparent and, therefore, not subject to the "plain feel" doctrine. So the KSC ultimately upheld the suppression order.

Here is the coverage on FourthAmendment.com.

Not guilty verdict in Wichita makes national news

A Wichita Eagle article reported that Lacy Gilmour and Shannon Cooper won an acquittal in State v. Wimberly after a two-day trial for allegedly stealing a couple hot dogs from a Quik Trip in Wichita. The article does a nice job of showing how stupid and wasteful some of these recidivist laws can be and casts the public defenders in a good (if overburdened) light. The case was featured on CourtTV and the legal system in Wichita was given the bronze medal for "Worst person in the world" on the April 9 Countdown with Keith Olbermann on MSNBC. Take a second to look at the video--what a sympathetic-looking client.

[Note: the link to the Wichita Eagle article expired.]

Heated arguments in Hutch

Here is a Hutch News article reporting on a heated discussion between the public defender and the prosecutor in court. Better be careful or the Reno County District Court is going to be a new Court TV series!

[Update: here is the next episode of "The PDs of Our Lives."]

[Further update: here is an article reporting that the prosecutor in these articles is leaving to work for a federal judge. I guess this is the end (or is it?)]

It's not American Idol, but vote now!

You may remember (or may not) that I blogged (here) about an edition of "SuperLawyers" and lamented about how few public defenders/criminal defense attorney showed up on the list. I just got my postcard with instructions on how to vote for this year's list. So if you get that postcard, (I think lawyers practicing 5 years or more are supposed to get it) think about some great Kansas defenders that you have seen in action and get on line and vote. I know we are not supposed to be looking for accolades, but a little pat on the back never hurt anyone! (Shoot, I even voted for a prosecutor if you can believe that!)

If you did not get a postcard, (or misplaced/threw away your postcard), there is a link at my.superlawyers.com to get an access code by e-mail. You just have to have been practicing five years or more.

Suppression in Third

Jennifer Roth won a motion to suppress in State v. McCoy, ending a Shawnee County drug prosecution (126 lbs of marijuana). Judge Parrish granted Jennifer's motion, which she indicated dealt with facts quite similar to those in State v. Ross, blogged about here. Jason Hoffman represented a co-defendant in State v. Kyser, who also won suppression.

I think there must be a lot of these cases in Shawnee County. A little bird let me know that Scott Gesner won a suppression motion in December in State v. Carathers, ending another Shawnee County methamphetamine prosecution based on an improper extension of a proper traffic stop.

Be sure to let me know about these district court happenings. First, it is nice to show the world what a great job defenders are doing around the state. Second, we are arging a lot of Fourth Amendment cases right now and it is useful to me to have a better sense of what is happening around the state in cases I don't otherwise see. So just e-mail me when you get a good result!

Former chief PD appointed district judge

Here is the governor's press release announcing the appointment of current magistrate judge Maritza Segarra to fill the district judge position in the Eighth Judicial District, covering Geary, Dickinson, Morris, and Marion Counties. See, a public defender can become a judge in Kansas!

Reno County PDs get aggressive on holding clients without charges

A Hutch News article reported on the PDs efforts to get the prosecutor to charge persons sitting in jail or have the court release them. It's sort of ludicrous to hear about people being held for months without charges--you would think that is a headline from some of the national security/Guantanamo debates, not run-of-the-mill charges in Hutchinson, Kansas. Is this very common in other counties?

[Note: the link to the Hutch News article has expired.]

Reno County PDs get into the holiday spirit

Here is a funny Hutch News article reporting about the Reno County PDs singing the season (humorously) down at the courthouse. Makes me wish I was home for Christmas!

Salina acquittal

Paul Hickman won a judgment of acquittal in State v. Nava, ending a Saline County felony DUI prosecution. Similar to the last post, the state failed to provide sufficient evidence of where the crime occurred and so at the close of the state's jury trial case, Judge Hellmer granted Paul's motion for judgment of acquittal. Remember three words: location, location, location.

Topeka acquittal

Jennifer Roth just called and reported that she won an acquittal in State v. Lee, a Shawnee County forgery (by endorsement) prosecution. Although the jury apparently believed that Ms. Lee falsely endorsed the check, it found that the state failed to prove the check was endorsed in Shawnee County! Because the state failed to prove one of the elements--acquittal!

Another Wichita verdict

Mark Orr won a misdemeanor battery conviction in State v. Hardyway, a Sedgwick County severity level 7 agg battery prosecution. Here is his report:

Client charged with Agg. Batt. 7 for choking, slamming victim to ground repeatedly, putting her head through drywall in garage, hitting, kicking. Defense was that she was making it up. We called victim's mother and she testified that she was over at daughter/victims within 15 minutes of attack, and victim appeared to be sleepy, not upset or crying, no marks on her. Over my objection, court instructed on Agg Batt 7 intentional and lessers of Agg Batt 8, reckless and then misdemeanor battery. Only jury question was "Was there any evidence presented putting the defendant at the scene, other than the testimony of the victim." In spite of that, convicted on Misdemeanor Battery.