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: What the Judge Ate for Breakfast

Evidence not fabricated but still tainted, appeals court rules

By Ron Sylvester

Although a Sedgwick County prosecutor didn’t make up evidence, the Kansas Court of Appeals ruled he still shouldn’t have used it.

The most recent opinion (.pdf) is the second time the court ordered a new trial on whether Robert C. Ontiberos should be put in a mental hospital indefinitely as a sexually violent predator.

The Court of Appeals originally made that ruling, partly based on its belief the prosecutor fabricated evidence. But days after the ruling, the missing report was found in the court file.

The Court of Appeals then rescinded its order and agreed to hear the case again.

This time, the appeals judges said that although the evidence existed, it wasn’t properly admitted during cross-examination, so the judges concluded Prosecutor Marc Bennett still committed a foul:

We certainly understand that one of the acceptable techniques of impeachment is cross-examination of a witness about a prior inconsistent statement. But there are rules that must be obeyed…

The court also said Bennett exaggerated the information in the report that was lost, then found. Bennett had originally stated the prison disciplinary report against Ontiberos described him fashioning a weapon by wrapping duct tape around a pen. The court said the infraction was listed by prison officials as “less dangerous contriband.” Bennett had referred to it as a “knife.”

Judge Stephen Hill wrote in the opinion:

This name for the object makes a much more violent impact than the “less than dangerous” contraband conclusion of the authorities who actually dealt with the object.

But the ruling by Hill, with judges Melissa Taylor Standridge and Henry Green, also harshly criticized Ontiberos’ lawyer, Greg Barker. The judges counted 12 times Barker could have objected to Bennett improperly using the documents. But Barker never objected.

Wrote Hill:

… the lack of so many objections demonstrates an unacceptable level of incompetence on the part of Ontiberos’ court-appointed attorney.

Once again, Ontiberos’ latest attorney, Michael Whalen, has won a new trial for his client.

But the Court of Appeals is not the last word. The state can now appeal to the Kansas Supreme Court.

Full post as published by What the Judge Ate for Breakfast on January 31, 2011 (boomark / email).