Misconduct and ineffective assistance of counsel requires new trial

Michael Whalen won in In re Ontiberos, No. 100,362 (Kan. App. Aug. 27, 2010), obtaining a new trial in a Sedgwick County Sexually Violent Predator Act proceeding.

There is a lot in this decision, including recognition of a statutory right to effective assistance of counsel in a SVPA proceeding and procedural guidance for such a claim. The COA summarized the decision this way:

In the jury trial of this sexually violent predator case, the parties agreed to have many records available so the two experts could refer to them. The documents were not meant for jury consideration, and the court did not admit them into evidence but did preserve them for the appellate record. Contrary to this agreement, the State's attorney used the documents 12 times during the cross-examination of the respondent, Robert Ontiberos. By doing so, he made the content of some of the records available to the jury. Further, the State's attorney used a nonexistent prison disciplinary report involving a weapon to discredit the respondent. Respondent's court-appointed lawyer never objected to any of the State's actions. Our Supreme Court has ruled that for impeachment, it is highly improper for counsel to read or refer to the contents of written matters not in evidence. Based on the conduct of the State's attorney, combined with the inaction of Ontiberos's defense counsel, we hold Ontiberos did not receive a fair trial. We reverse and remand for a new trial.

The COA had especially harsh words for the prosecutor's use of non-existent reports as a trial tactic:

The State's use of a nonexistent Department of Corrections disciplinary finding, ostensibly painting Ontiberos as being violent because it involved a homemade prison shank, cannot be condoned in any fashion. Simply put, attorneys are not allowed to make up evidence and use it to advance their cause. Even though our rules of evidence provide that all relevant evidence is admissible, the evidence must be real. We can fathom no greater prejudice to a respondent than the use of nonexistent evidence by the State in the case against the respondent.

[Update: coverage in the Wichita Eagle notied that the prosecution looked further and found the evidence that was suggested at trial in the file. As a result, the prosecutor sought to rehear the case, at least with regard to the comments about the prosecutor. The article suggests that Michael Whalen is not opposed.]

[Further update: even later coverage in the Wichita Eagle reported that the COA withdrew its original opinion and has set additional argument.]

[Further update: after granting the state's PR, the KSC reversed and remanded the case for a new trial on August 17, 2012, blogged about here.]