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Another Pilshaw reversal [NOT FINAL]

By Randall Hodgkinson

I don't regularly blog on probation-revocation appeals, but thought this was timely given Judge Pilshaw's recent and repeated disciplinary record (blogged about here and here). Sean Shores won in State v. Bennett, No. 96,591 (Kan. App. Feb. 29, 2008)(unpublished), reversing a probation revocation finding and remanding f0r a new decision before a different judge. The COA reversed because of a State v. Gary problem (can't use improper acts before probation to revoke probation). But the COA went on to criticize Pilshaw's announcement in court to Bennett's attorney to "Go aheand and make your arguments. I'm finding he's in violation."

Bennett separately argued on appeal that his due process rights were violated by Judge Pilshaw's lack of impartiality. We too have concern when a judge tells a defendant that she has decided the issue before hearing argument. In addition, our review of the transcripts of the sentencing and probation-revocation hearings does not show the dignity of proceedings and level of respect to parties that Kansas citizens rightly expect and deserve from their judges. It is important that those appearing in courts have confidence that a fair hearing is provided to them. We therefore direct that the case be assigned to a different judge on remand.

Bennett had a pretty long underlying sentence (42 months), so he may really benefit from this decision. The vast majority of probation-revocation appeals are moot by the time they are decided.

Full post as published by Kansas Defenders on March 03, 2008 (boomark / email).