Richard Ney won in State v. Smith, No. 116,968 (Kan. August 17, 2018), obtaining a second remand hearing to consider whether Mr. Smith was entitled to an out-of-time appeal. The KSC had previously remanded the case so that the district court could apply the correct test (blogged about here). On remand, the district court considered irrelevant information from outside the record in determining Mr. Smith's testimony was not credibile (which was dispositive of the request for out-of-time appeal).
The KSC rejected Mr. Smith's main claim on appeal--that the district court had ignored uncontested evidence--but raised its own concerns about the district court proceedings. First, the district court considered the type of music that Mr. Smith listened to as probative as to whether he had requested an appeal. The KSC noted that this was both unproved and irrelevant:
But per the record on appeal, the issue of Smith's musical preference had never been mentioned before the court. And we can find no evidence in the record to point to what his musical preferences might have been in 1993 when he was 16 years old. Under Supreme Court Rule 601B, Canon 2, Rule 2.9(C), "A judge . . . shall consider only the evidence presented and any facts that may properly be judicially noticed." Contrary to the rule, no such evidence was presented nor was any court effort made to take judicial notice under K.S.A. 60-409 or 60-410. In any event, taking judicial notice of a defendant's musical taste in this context is unlikely to meet the statutory requirements. Indeed, in response to a court question during oral arguments, counsel for the State frankly admitted, "[D]id the defendant testify about the music he listened to? No. So clearly this is an assumption made by the judge."
Moreover, even if such evidence had been presented or had properly been judicially noticed, Smith's musical preferences are irrelevant to what we made clear—and the district court itself acknowledged—was the material issue before that court: his credibility. K.S.A. 60-401(b) defines relevant evidence as evidence having any tendency in reason to prove any material fact. Here, as in State v. Bornholdt, the evidence is not relevant because its connection to the material issue "requires an unrealistic leap of faith." 261 Kan. 644, 660, 932 P.2d 964 (1997).
Finally, it appears the judge was inappropriately applying a negative stereotype in connecting choice of music to refusal to appeal. Judicial bias or prejudice through words or conduct is prohibited by Supreme Court Rule 601B, Canon 2, Rule 2.3(B). And Comment [2] explains "[e]xamples of manifestations of bias or prejudice include . . . negative stereotyping; . . . suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics."
The KSC also found problematic the district court's independent investigation in the case:
The second troubling action taken by the court was its order—apparently issued sua sponte—transmitted electronically by the judge's assistant to the Kansas Department of Corrections (DOC) to produce records of Smith's "tattoos and brands." In particular, the court demanded a "comprehensive list of all described tattoos or brands, along with 11 any photographs of same." This list and photo were provided to the court via email to the judge's assistant within hours of the order's submission to DOC on December 12, 2016— three days after Smith's hearing and three days before the court's denial of his motion to file a late appeal. At oral arguments, counsel for the State candidly conceded she was unable to provide justification or explanation for the lower court's order for this information.
Just as with Smith's taste in music, the record contains no mention of his tattoos or brands during his hearings. As mentioned, under Supreme Court Rule 601B, Canon 2, Rule 2.9(C) "A judge . . . shall consider only the evidence presented and any facts that may properly be judicially noticed." Additionally, nothing in the record reveals the court attempted to meet the substantive requirements of judicial notice.
Nor did the court attempt to meet the procedural requirements allowing it to take judicial notice. K.S.A. 60-412(d) provides that the judge "shall afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed." And as with his music, Smith's tattoos and brands are irrelevant to the credibility determination with which the district court acknowledged it was ordered by this court to perform.
Additionally, although no explanation appears in the record—and none could be supplied by the State at oral arguments—it again appears the judge was inappropriately applying a negative stereotype: people exhibiting such markings are not credible. After reviewing the district court record, we have found only one indication the parties could have been aware that Smith's tattoos and brands were an issue, i.e., when the court order to DOC (together with DOC's attached response listing the tattoos) was filed with the court clerk at 8:56 a.m. on December 14—merely one day before the order denying Smith's motion was filed at 9:20 a.m.
Furthermore, this independent factual research by the court is itself inappropriate. According to Supreme Court Rule 601B, Canon 2, Rule 2.9(C), "A judge shall not investigate facts in a matter independently." The prohibition extends to the judge's staff. Rule 2.9(D) provides "[a] judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control." And finally, Comment [6] makes clear the prohibition covers many types of efforts: "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic."
The KSC concluded that it did not have confidence regarding the district court's credibility finding in this case and especially condemned the improper use of stereotypes that would demonstrate judicial bias. As a result, the KSC remanded for a second hearing with a different district judge.
[Update: after the second remand, the KSC affirmed the finding of the district court that Mr. Smith did not meet the third Ortiz exception. State v. Smith, No. 121,949 (Kan. March 12, 2021).]
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