Public Defense
Kansas Defenders 
A forum for discussion about issues and appellate decisions of interest to Kansas defenders.
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January 2010 KSC Docket
Posted on November 20, 2009Here are the criminal cases on the KSC docket for January 25-28, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Governor issues pardon
Posted on November 17, 2009Here is a Lawrence Journal World article reporting that the KU Defender Project helped Samuel Jarvis Hunt obtain a pardon of his 1969 Sedgwick County robbery conviction. The article sets out the history and background of the case:For some observers, Hunt's pardon represents a righting of a wrong that highlighted tension in Kansas, and in the country, in the 1960s...
Petitions for Review granted
Posted on November 10, 2009On November 5, 2009, the KSC granted petitions for review in the following criminal cases:State v. Walker, No. 99,457 (Kan. App. Feb. 27, 2009)Issues presented:1. Whether there was reasonable suspicion for police to detain Walker2. Whether the extension of the investigatory stop was an illegal detention...
Speedy acquittal in theft case
Posted on November 02, 2009Lacy Gilmour won recently in State v. Mitchell, getting an acquittal in a Sedgwick County theft prosecution in less than 20 minutes. Here is Lacy's decription of the case. Thanks to What the Judge Ate for Breakfast for the tip.
Permanently incompetent to stand trial
Posted on October 31, 2009Lane Williams and Kirk Lowry from the Disability Rights Center of Kansas won in State v. Johnson, No. 96,526 (Kan. Oct. 30, 2009), affirming Judge Becker's dismissal of a Reno County DUI-manslaughter prosecution. This case has a fairly long history, as described in the opinion...
Restrictions on cross-examination warrant new trial
Posted on October 22, 2009Ron Wurtz, federal PD, won in U.S. v. Robinson, No. 08-3180 (10th Cir. Oct. 20, 2009), obtaining a new trial in a federal felon in possession prosecution. The issue prompting reversal was failure to allow access to an informant's medical records and prohibition on questioning the informant about mental health history:Six days before Robinson?s trial, the government?s star witness?the CI who purchased the gun from Robinson?was involuntarily committed to a mental health facility...
December 2009 KSC Docket
Posted on October 20, 2009Here are the criminal cases on the KSC docket for December 7-11,2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Mandatory drug treatment is mandatory
Posted on October 13, 2009Christina Waugh and Michelle Davis won in State v. Andelt, Nos. 98,699/98,665 (Kan. October 9, 2009), reversing the district court's denial of mandatory drug treatment in each case. Even though the defendant qualified for SB 123 treatment, the district court denied drug treatment in each case because the offenses were committed while the defendant was on parole...
Four trials is enough for Judge Tatum
Posted on October 11, 2009Here is an Olathe News article reporting that Scott Toth won a judgment of acquittal from Judge Tatum in State v. Hudson, finally ending a Johnson County assault on a LEO prosecution after three hung juries and a mistrial based on misconduct.
Melendez-Diaz in Kansas
Posted on October 09, 2009Rachel Pickering won in State v. Laturner, No. 96,086 (Kan. Oct. 9, 2009), obtaining a new trial in a Cherokee County drug prosecution. The appeal involved the constitutionality of K.S.A. 22-3437, which allows the prosecution to admit a lab report in lieu of live testimony...
Improper hearsay requires new trial [NOT FINAL]
Posted on October 09, 2009Carl Folsom won in State v. Kelley, No. No. 100,255 (Kan. App. Oct. 9, 2009), obtaining a new trial in a Sedgwick County rape prosecution. The reversal was based upon the state's admission of hearsay statements on the basis that it was planning to call the declarant, but then failing to call the declarant:To summarize, in a criminal proceeding, the first step in analyzing whether a statement is admissible hearsay is to determine whether the statement was testimonial...
Agg habitual sex offender sentences reversed
Posted on October 09, 2009Shawn Minihan won in State v. Trautloff, No. 100,425 (Kan. Oct. 9, 2009), a Franklin County rape/agg crim sodomy case, remanding one count of sexual exploitation of a child for a new trial and vacating and remanding four life sentences without possibility of parole imposed under the aggravated habitual sex offender provisions of K...
Officers exceeded scope of search for safety purposes [NOT FINAL]
Posted on October 09, 2009Washburn student intern Sean Whittmore and I won in State v. Vicki Johnson, No. 100,728 (Kan. App. Oct. 9, 2009), reversing a Sedgwick County drug conviction. Officers responded to a report of a possible burglary, but quickly learned the the woman involved was the tenant's girlfriend, who was there with permission...
Petitions for Review granted
Posted on October 06, 2009On October 1, 2009, the KSC granted petitions for review for defendants in the following cases:State v. Jones, No. 97,696 (Kan. App. Sept. 19, 2008) (Unpublished)Issues presented: 1) whether defendant?s Confrontation rights were violated when alleged victim?s blood and urine test results were admitted into evidence as business records 2) whether endangering a child conviction is valid when two of the three alternative means are multiplicitous with other charges in the case 3) whether conviction for child endangerment is multiplicitous with convictions for aggravated criminal sodomy and furnishing alcohol to a minor for an illicit purpose4) whether district court erred by failing to instruct the jury on the lesser-included offense of criminal sodomy5) whether the use of defendant's criminal history violates Apprendi (Ivory issue)State v...
Sticking nose inside car constitutes search
Posted on October 05, 2009Federal public defender Stephen P. McCue won in United States v. Montes-Ramos, No. 07-2027 (10th Cir. Oct. 1, 2009)(unpublished), obtaining suppression in a New Mexico federal possession of marijuana with intent to distribute prosecution. The Tenth Circuit addressed two issues: (1) is it a "search" for an officer to stick his nose just a few inches inside a car to see if he can smell drugs and (2) if so, was it unreasonable in this case...
Cruel and Unusual Punishment
Posted on October 05, 2009Here is a blog post from Doug Berman at Sentencing Law and Policy reporting that the Iowa Supreme Court had questions under its state constitution about the legality of a 25 year sentence for statutory rape and remanded for findings as applied to that defendant...
Rape acquittal in Reno County
Posted on October 01, 2009Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Bodine, ending a Reno County rape/agg sex battery prosecution.
Not guilty of felony theft
Posted on September 30, 2009My old public defender colleague Tim Frieden (we started withing a couple weeks of each other at the PD office), won an acquittal in State v. Corona, ending a felony theft prosecution.
Another Gant win [NOT FINAL]
Posted on September 29, 2009Rick Kittel won in State v. Witmer, 100,646 (Kan. App. Sept. 25, 2009)(unpublished), reversing a Riley County drug conviction. The evidence stemmed from a search incident to arrest. The COA noted that, during the appeal, both Arizona v. Gant and State v...
No waiver of jury trial [NOT FINAL]
Posted on September 29, 2009Lydia Krebs won in State v. Bowers, No. 100,805 (Kan. App. Sept. 25, 2009), reversing a Miami County DUI conviction. The issue, apparently not contested by the state, was that the record did not include a personal waiver of the right to jury trial:The district court failed to advise Bowers of his right to a jury trial or to even raise the option...
"As nearly as practicable"
Posted on September 18, 2009Stephen Atherton and Don Krueger won in consolidated cases in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009) affirming Judge Larsons suppression order in this case. There were two issues: whether a stop was valid as a safety stop or, alternatively, whether the officer had reasonable suspicision of a traffic violation justifying the stop...
Downward duration departure upheld [NOT FINAL]
Posted on September 18, 2009Janine Cox won in State v. Henderson, No. 100,885 (Kan. App. Sept. 18, 2009)(unpublished), affirming Judge Dowd's downward durational departure sentence in a Shawnee County rape prosecution. The state claimed that Judge Dowd failed to state on the record the substantial and compelling reasons for its departure...
October 2009 KSC docket
Posted on September 10, 2009Here are the criminal cases on the KSC docket for October 26-30, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Couple of Gant GVRs (sort of)
Posted on September 09, 2009Similar to the practice in the SCOTUS, the KSC granted a couple of petitions for review last week on Gant issues and summarily remanded to the district court for proceedings consistent with Arizona v. Gant. In both cases, the COA had held that the amended K...
A Gant reversal [NOT FINAL]
Posted on September 08, 2009Meryl Carver-Allmond won in State v. Wear, No. 100,442 (Kan. App. September 4, 2009), reversing a Harvey County drug conviction. The state had primarily argued that the search incident to arrest for driving with a suspended license was lawful under Belton, but as the COA explained that rationale doesn't survive Gant, blogged about here...
The answer is "Yes!"
Posted on September 04, 2009The question in the title of my blog post on September 19, 2006 was "Will Layton finally get relief?" The answer according to State v. Layton, No. 98,275 (Kan. June 26, 2009)(unpublished) is yes. Michael Whalen was Mr. Layton's attorney in this latest proceeding...
Recent cert petition filed
Posted on September 04, 2009We recently filed a cert petition in Snow v. Kansas on the issue of whether non-statutory "catch all" aggravating factors (used for an upward durational departure) satisfy the Due Process Clause.We filed a similar petition last year in Green v. Kansas, blogged about here...
Couple of acquittals
Posted on September 03, 2009Here is a Hutch News article reporting that Kelly Driscoll and Lee Timan got an acquittal in State v. Davis, ending a Reno County rape prosecution.Here is an Emporia Gazette article reporting that Trevor Riddle got an acquittal in State v. Petitt, ending a Lyon County vehicular homicide prosecution...
September 2009 KSC docket
Posted on September 01, 2009Here are the criminal cases on the KSC docket for September 14-18, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
No basis for stop or frisk [NOT FINAL]
Posted on August 31, 2009Rick Kittel and KU Defender Project student Thomas Knutzen won in State v. Dean, No. 100,120 (Aug. 28, 2009), reversing a Sedgwick County drug conviction. The COA agreed with Mr. Dean that the officer did not have an objectively reasonable basis to detain:Applying an objective standard, the facts available to Officer Goodman at the moment of the seizure established: (1) Goodman had received a report of an unidentified individual selling crack from an unidentified vehicle in front of a residence where Dean and others lived; (2) no vehicles were parked in front of the residence when Goodman arrived to investigate; (3) Goodman was only generally familiar with the residence and its occupants, including the defendant; (4) during a consensual search of the home, Goodman observed no illegal activity; and (5) when Goodman saw Dean in the kitchen, he thought Dean appeared nervous...
Can't convict of a crime not charged [NOT FINAL]
Posted on August 31, 2009Meryl Carver-Allmond won in State v. Betts, No. 100,887 (Aug. 28, 2009)(unpublished), reversing two counts of sale and two counts of unlawful use of a communication facility in a Seward County drug case. The state unambiguously charged two counts of possession with intent to sell...
Restorative justice
Posted on August 25, 2009Here is a Salina Journal article reporting that criminal threat charges were dismissed after the defendant and victim met and resolved the matter, apparently to the satisfaction of the victims. I just thought this might be noteworthy because you don't see much press about these kinds of dispositions...
Improper impeachment with prior conviction not harmless
Posted on August 21, 2009Rachel Pickering won in State v. Hoskins, No. 99,802 (Kan. App. Aug. 14, 2009), obtaining a new trial in a Montgomery County aggravated intimidation of a witness or victim prosecution. The main issue in the case was the admission of a prior forgery conviction for impeachment purposes...
Acquittal in Douglas County rape prosecution
Posted on August 20, 2009Sarah Swain won an acquittal today in a Douglas County rape prosecution. The jury deliberated for over four hours and returned a not guilty verdict on a charge of rape and the lesser offense of attempted rape. Here is an article on the case from the LJWorld.
Alford plea stipulation to factual basis does not satisfy Apprendi requirements
Posted on August 14, 2009Christina Waugh won in State v. Case, No. 98,077 (Kan. August 7, 2009), reversing a 60-month term of postrelease supervision that was based on the district court?s finding that the defendant?s conviction for aggravated endangering of a child was sexually motivated...
Juvenile jury trial pays off
Posted on August 13, 2009Carl Maughan won an acquittal in the first Sedgwick County jury trial in a juvenile case since the KSC's decision in In re L.M. (holding that juveniles have state constitutional right to a jury trial). According to this Wichita Eagle article, it took the jury only 40 minutes to acquit the defendant of burglary and theft.
Fake victim can support downward departure sentence
Posted on July 31, 2009Janine Cox won in State v. Valenzuela, No. 99,675 (June 26, 2009) (unpublished), affirming a downward durational departure sentence in a Shawnee County State's appeal. Mr. Valenzuela, who had learning disabilities and severe memory loss (due to a series of head traumas), was caught in an internet sting when he went to meet a woman who had been pretending to be a young girl in a chat room...
Juvenile adjudication cannot support lifetime offender registration [NOT FINAL]
Posted on July 31, 2009I won recently in State v. Reese, No. 100,531 (Kan. App. July 31, 2009), reversing an order of lifetime offender registration and an enhanced sentence based on an alleged "persistent sex offender" status. The enhanced penalties had been based on a prior juvenile adjudication...
Age of defendant is still an element of Jessica?s Law offense
Posted on July 27, 2009Rachel Pickering won in State v. Gonzales, No. 99,657 (Kan. July 24, 2009), reversing a life sentence in a Sedgwick County Jessica?s Law prosecution for aggravated indecent liberties with a child. The court affirmed the trial court?s denial of Mr. Gonzales? motion for new trial regarding Mr...
"Hasty generalization" warrants new trial [NOT FINAL]
Posted on July 24, 2009Meryl Carver-Allmond earned her first published win in State v. Smith, No. 99,655 (Kan. App. July 24, 2009), reversing a Douglas County conviction for robbery. The COA held that the district court abused its discretion in denying trial counsel?s motion to withdraw because an irreconcilable conflict existed between trial counsel and Smith...
Cause for stop evaporated
Posted on July 23, 2009Steven C. Staker and Linda M. Barnes-Pointer won in co-defendants' consolidated cases in State v. Diaz-Ruiz, and State v. Diaz-Gomez, Nos. 100,926 and 100,927 (Kan. App. July 17, 2009), affirming Judge Hornbaker's suppression order. A trooper had stopped a vehicle on suspicion that a ladder was not secured:Trooper Nicholas cited only one basis for the stop, i...
PD Blog Star
Posted on July 22, 2009Ron Sylvester, at the excellent What the Judge Ate for Breakfast blog, has started a video series titled "Common Law", which will follow court cases that don't necessarily grab the headlines. Sylvester hopes the series will show the human drama in the daily court cases that have an impact on people?s lives...
PD appointed to Sentencing Commission
Posted on July 21, 2009Gov. Parkinson has appointed Jennifer Roth, a public defender from the Shawnee County PD office, to the Kansas Sentencing Commission. Here is an article from the LJWorld discussing the appointment. Jennifer has done great work the last few years at the legislature on criminal justice issues, and she will undoubtedly be a valuable asset as a member of the Sentencing Commission.
Mandatory drug treatment trumps special sentencing rule [NOT FINAL]
Posted on July 21, 2009In State v. Casey, No. 100,176 (Kan. App. July 17, 2009), the Court of Appeals agreed with my position that SB 123 mandatory drug treatment trumps the special rule allowing imprisonment for an offense that was committed while on felony bond. The court reversed Casey?s sentence and remanded for resentencing...
Age of defendant is an element of Jessica's Law offense
Posted on July 02, 2009Randall Hodgkinson won in State v. Bello , No. 99,225 (Kan. July 2, 2009), reversing a Hard-25 life sentence imposed pursuant to K.S.A. 21-4643 (Jessica's Law). The KSC affirmed Mr. Bello's convictions for aggravated criminal sodomy and aggravated indecent liberties with a child, but reversed the life sentence because the State failed to charge and the trial court failed to instruct the jury that Mr...
Right to refuse to consent to search
Posted on June 27, 2009Here is an article on FourthAmendment.com reporting on a recent Nevada case holding that it is improper for a prosecutor to comment on the refusal to consent to a search, just like it is improper for a prosectuor to comment on the exercise of other constitutional rights...
Gant applied in Kansas
Posted on June 26, 2009Don Lill and Monte Miller (representing co-defendants) won in State v. Henning, No. 98,118 (Kan. June 26, 2009) affirming Judge Wheeler's suppression based on an improper search incident to arrest. The briefing and argument largely discussed the recent amendment to K...
Exposure to communicable disease statute constitutional, but not proven
Posted on June 24, 2009Lydia Krebs won her second KSC case of the day in State v. Richardson, No. 100,445 (Kan. June 19, 2009), reversing two Lyon County convictions for exposing another to a life-threatening disease. The KSC reviewed K.S.A. 21-3435, making it a crime "for an individual who knows oneself to be infected with a life threatening communicable disease knowingly: (1) to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening disease...
Can't use juvenile adjudications for persistent sex offender classification
Posted on June 24, 2009Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. June 19, 2009), vacating an enhanced sentence in a Sedgwick County case under K.S.A. 21-4704(j) based on a prior juvenile adjudication. This was primarily a statutory construction case--the KSC had to decide whether a juvenile adjudication satisifies the part of K...
In limine violation and Doyle violation result in new trial [NOT FINAL]
Posted on June 24, 2009Rick Kittel and KU Defender Project student Sebastien Orosco won in State v. Pruitt, No. 100,039 (Kan. App. June 19, 2009), winning a new trial in a Lyon County attempted burglary prosecution. There were two trial errors that were of concern to the COA: (1) a violation of an in limine order when an officer/witness answered a question implying prior bad acts and (2) a Doyle violation, which was implicitly conceded in the state's brief...
Due Process violation for probation violation delay [NOT FINAL]
Posted on June 23, 2009Lydia Krebs won in State v. Curtis, No. 99,474 (Kan. App. June 19, 2009), reversing a Reno County probation violation finding. The defendant claimed a Due Process violation for a twenty-one month delay between filing of the motion revoke and the decision...
Overbroad non-exclusive possession instruction [NOT FINAL]
Posted on June 23, 2009Merly Carver-Allmond won in State v. Douglas-Keough, No. 100,316 (Kan. App. June 19, 2009)(unpublished), obtaining a new trial in a Reno County drug prosecution. The district court gave a nonexclusive possession instruction based on P.I.K. Crim. 3d 67...
Acquittal in vehicular homicide case
Posted on June 11, 2009Here is a Wichita Eagle article reporting that Steve Mank won an acquittal in State v. Pasteka, ending a Sedgwick County vehicular manslaughter prosecution.We sure are seeing an increase in these cases where accidents are prosecuted as crimes. Good to see a jury recognize that accidents tragically happen.
ICE hold doesn't vitiate statutory right to speedy trial [NOT FINAL]
Posted on June 09, 2009Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. App. May 29, 2009), affirming Judge Wheeler's dismissal of Lyon County drug charges on statutory speedy trial grounds. The issue stemmed from a decision whether an immigration hold kept a person from being held solely by reason of the pending state charges:We conclude the immigration detainer issued to the Lyon County Sheriff's Department merely expressed ICE's intention to seek future custody of Montes-Mata and requested notice from Lyon County prior to terminating Montes-Mata's confinement...
Insufficient evidenc to support accident convictions [NOT FINAL]
Posted on June 09, 2009Kevin P. Sheppard won in State v. Holm, No. 100, 943 (Kan. App. May 29, 2009), reversing a Shawnee County leaving the scene of an accident and failure to report an accident convictions. The COA construed K.S.A. 8-1602 to -1604:A reading of these statutes appears to require remaining at the scene of a noninjury accident only if the property damaged by the damaging driver is attended by another person...
Lesser verdict in Hutch murder case
Posted on June 08, 2009Here is a Hutchinson News article reporting that PD Kelly Driscoll won a verdict of second-degree murder in State v. Williams, a Reno County first-degree murder prosecution. From the article, it sounds like state-of-mind was the big issue.
Lots of great appellate work by defenders
Posted on June 02, 2009We try to track and publish good cases as they come out. Not surprisingly, we are somewhat focused on ADO cases (because we are from the ADO). We try to post on other cases when we know about them, so we pretty regularly post on other defenders' published and unpublished reversals, which we can track...
State must prove adult's inability to consent [NOT FINAL]
Posted on June 02, 2009Matthew J. Edge won in State v. Wylie, No. 99,580 (Kan. App. May 22, 2009)(unpublished), reversing a Lyon County rape conviction. The state charged Mr. Wylie with alternative counts of rape by force and rape of a woman unable to give consent due to a mental disability...
Reversal for failure to give lessers [NOT FINAL]
Posted on June 02, 2009Rick Kittel won in State v. Hawkins, No. 98,459 (Kan. App. May 22, 2009)(unpublished), getting a new trial in a Montgomery County felony theft and fleeing and eluding prosecution. The COA reversed and remanded on each count based on failure to give lesser-included offense instructions...
Not guilty on battery on a co
Posted on May 29, 2009Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Hubbard, ending a Reno County battery on a correctional officer prosecution.
Captial murder charges dismissed
Posted on May 19, 2009The State has dismissed capital murder charges against Jason Strand and Kendrick Shears, two Hutchison Correctional Facility inmates accused of the murder of fellow inmate David Warren. Tim Frieden and Jeff Wicks represented Mr. Shears, and John V. Wachtel and Roger L...
Can't use uncounseled misdemeanors for enhancement
Posted on May 08, 2009Michelle Davis won in State v. Youngblood, No. 96,850 (Kan. May 8, 2009), reversing a Harvey County conviction for second-time possession of a hallucinogenic drug. The critical issue was whether the distrrict court could use a prior municipal conviction for enhancement purposes...
Attempted Jessica's Law is a grid offense
Posted on May 08, 2009E. Jay Greeno won in State v. Horn, No. 100,373 (Kan. May 8, 2009), obtaining remand for new sentencing in a Butler County attempted criminal sodomy case. The KSC construed two different provisions noting that Jessica's Law purports to cover listed offenses and attempts to commit those listed offenses, but that the sentencing guidelines provides that attempt to commit an off-grid offense is a severity level 1 offense...
May 2009 KSC docket
Posted on May 04, 2009Here are the criminal cases on the KSC docket for May 11-15, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Second hung jury in Salina murder case
Posted on May 04, 2009Here is the Salina Journal article reporting that, for the second time, a Saline County second-degree murder prosecution has ended in a hung-jury. The article indicates that the prosecutor will decide whether to try, try again. Nice job to Julie McKenna for her great work in the case.
In-laws connection insufficient for probable cause
Posted on May 04, 2009The Tenth Circuit decided Poolaw v. Marcantel, No. 07-2254 (10th Cir. May 4, 2009), a 1983 case, where officers searched a suspect's in-law's property and stopped a suspect's sister-in law mostly because they were the suspects' in-laws. The Court held that familial relationship, by itself, is insufficient for probable cause:Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual?s reasonable expectation of privacy...
When all else fails, see if you can get the defense attorney to testify
Posted on May 01, 2009Here is a Hutch News article reporting that Judge McCarville has found public defender Sarah Sweet-McKinnon in contempt for refusing to testify regarding confidential client communications in a Reno County murder prosecution. I thought it was sort of interesting that the prosecutor says that this "is a murder case, and the sole goal is to find the truth...
Acquittal in Reno County
Posted on April 29, 2009Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Dirkson, ending a Reno County agg battery prosecution.
Acquittal in murder case
Posted on April 27, 2009Here is a Hutch News article reporting that Phillip White (my old public defender colleague) won an acquittal in State v. Salas, ending a Sedgwick County first-degree murder prosecution. As the article relates, investigators never found a body.
Just because you might get to leave later doesn't mean you feel free to leave now
Posted on April 27, 2009John Moon of Albequerque won in U.S. v. Fred, No. 08-2052 (10th Cir. April 20, 2009)(unpublished), obtaining suppression of statements under Miranda. The main question was whether Mr. Fred was in custody. The Tenth Circuit underwent a detailed analysis of the district court's findings, holding that some were supported and some were clearly erroneous...
Not guilty in arson case
Posted on April 24, 2009Here is a Lawrence Journal-World article reporting that Charles Whitman won an acquittal in State v. Toussaint, ending a Douglas County arson prosecution.
Branded [NOT FINAL]
Posted on April 24, 2009Carl Folsom won in State v. Schad, No. 99,445 (Kan. App. April 24, 2009) reversing several conditions of probation imposed in a Stafford County aggravated indecent solicitation case. As a condition of probation, the district court placed Mr. Schad on house arrest for the entirety of the sixty-month probation, with permission to leave only to meet with his probation officer, attend sex offender treatment, and to attend medical appointments...
Improper response to jury question prompts reversal [NOT FINAL]
Posted on April 23, 2009Carl Folsom won in State v. Jones, No. 97,976 (Kan. App. April 17, 2009), obtaining a new trial in a Johnson County aggravated robbery prosecution. During deliberations, the jury asked "Were there identified fingerprints on the gun?" The district court responded that "no evidence was presented about fingerprints on the gun...
Robbery definitions [NOT FINAL]
Posted on April 23, 2009Carl Folsom won in State v. Soule, No. 98,702 (Kan. App. April 17, 2009)(unpublished), getting a new trial in a Sedgwick County aggravated robbery prosecution. The COA held that sufficient evidence supported the aggravated robbery prosecution, but agreed that Mr...
Arizona v. Gant limits automobile searches incident to arrest
Posted on April 21, 2009The US Supreme Court issued its opinion in Arizona v. Gant (07-542) on warrantless automobile searches incident to arrest. The Court held that, ?Belton does not authorize a vehicle search incident to a recent occupant?s arrest after the arrestee has been secured and cannot access the interior of the vehicle...
Article on death penalty litigation in Kansas
Posted on April 20, 2009Here is a Wichita Eagle article reporting on the possible impact of the (relatively) recent Marsh ruling with regard to pending capital cases.
Recent KSC actions
Posted on April 20, 2009The KSC has acted on a number of cases that had petitions for review pending. Here is a complete list of the court's actions on April 7, 2009.Thanks to Rachel Pickering for the tip.
Not guilty of criminal threat
Posted on April 15, 2009Here is a Salina Journal article reporting that Roger Struble won an acquittal in State v. Olson, ending a Saline County criminal threat prosecution.
Apprendi at juvenile certification hearings
Posted on April 12, 2009Here is a blog entry at Sentencing Law and Policy reporting about a paper discussing some ramifications of applying Apprendi to juvenile certification hearings. I made that argument a long time ago (unsucessfully) in state court. It has had more success in other jurisdictions...
Improperly expanded stop [NOT FINAL]
Posted on April 11, 2009Sam Kepfield won in State v. Heath, No. 98,974 (Kan. App. April 3, 2009)(unpublished), obtaining reversal of a Harvey County drug conviction. The COA applied the recent case of State v. Smith (blogged about here):The [Smith] court then concluded: ?[W]e continue to adhere to our longstanding rule that consensual searches during the period of a detention for a traffic stop are invalid under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights...
Two weeks ago isn't "on or about." Neither is six months ago.
Posted on April 10, 2009Pat Dunn won in State v. Murr, No. 98,231 (Kan. App. March 4, 2009)(unpublished), reversing a Crawford County manufacture conviction and obtaining a new trial on conspiracy and possession conviction. The COA agreed that evidence of manufacture occurring weeks prior was insufficient to prove manufacture "on or about January 12, 2005" as charged:We acknowledge that in Kansas, it is not necessary for the State to prove the exact date upon which an offense was committed...
Life
Posted on April 05, 2009Here is the Wichita Eagle article reporting that Michael Marsh pleaded to felony murder, ending the Sedgwick County capital murder prosecution that was the subject of the United States Supreme Court case a few years ago (here is early blog reporting on the subject)...
Justice Delayed is Justice Denied
Posted on April 05, 2009Charles A. O'Hara won in State v. Pickerill, Case No. 100,189 (April 3, 2009), affirming the district court?s dismissal of charges with prejudice and the denial of the State?s motion to continue the preliminary hearing.At the preliminary hearing, the State requested a continuance or, in the alternative, a bifurcated hearing because the assigned prosecutor had been called out of state for family medical reasons, and the State's primary witness was training out of state and was not present to testify...
The difference between objecting and not objecting [NOT FINAL]
Posted on April 03, 2009Rick Kittel and KU Defender Project student Danny Moskowitz won in State v. Page, No. 98,153 (Kan. App. April 3, 2009), obtaining a new trial in a Butler County rape proseuction. Readers remember that we blogged (here) a few weeks ago about a "zone of victory" win for Rick in State v...
Have to prove age for domestic battery [NOT FINAL]
Posted on April 01, 2009Rick Kittel and KU Defender Project student intern Amanda Sheridan won in State v. Perez-Rivera, No. 99,308 (Kan. App. March, 27, 2009), reversing a Barton County domestic battery conviction. The COA noted that the statute clearly defines "family or household member" as a listed person 18 years of age or older:Clearly, the plain language of K...
Not guilty in high profile abortion case
Posted on March 28, 2009Here is a Wichita Eagle article reporting that Dan Monnat, et al. won acquittals in several misdemeanor cases in State v. Tiller, ending a Sedgwick County prosecution for improperly performing abortions without going through the proper procedures.
Proportionality Challenge to Lifetime Postrelease
Posted on March 26, 2009Recently, the ADO has challenged the constitutionality of the lifetime postrelease supervision term for ?sexually violent offenses? mandated by K.S.A. 22-3717(d)(1)(G). The argument is that the lifetime postrelease is a life sentence, and under the facts of the case, may be disproportionate punishment and thus cruel and unusual punishment under Section 9 of the Kansas Constitution Bill of Rights and/or the Eighth Amendment of the U...
Acquittal in 17 minutes.
Posted on March 23, 2009I received a report that Lee Timan in the Reno County Public Defender Office recently won an acquittal in State v. Teter, ending a Reno County failure to register prosecution. Apparently, the verdict only took the jury about 17 minutes. Nice.
State didn't prove old burglary conviction was of a dwelling
Posted on March 18, 2009Washburn student intern Stacey Schlimmer and I won in State v. Roose, No. 98,798 (Kan. App. March 13, 2009), reversing a Shawnee County criminal possession of a firearm conviction. The predicate offense was a 1978 burglary conviction. The COA held that the state had failed to prove that the building involved in the prior burglary was a "dwelling" as contemplated under today's burglary statute...
Mandatory minimum fines could be in dispute
Posted on March 12, 2009For anyone that has a client that is subject to a ?mandatory minimum fine?- which should be about everyone, the Kansas Supreme Court has granted my petition for review in State v. Raschke, (Case No. 98861) that asks the court to overrule State v. Shuster, 17 Kan...
You can't be un-arraigned [NOT FINAL]
Posted on March 06, 2009Washburn student intern Julia Mowers and I won in State v. Douglas, No. 99,651 (Kan. App. March 6, 2009)(unpublished), affirming Judge Miller's dismissal order on statutory speedy trial grounds. The claim arose after the parties had negotiated a plea agreement and Mr...
Coach not guilty
Posted on February 25, 2009Here is a Topeka Capital-Journal article reporting that Boby Eye won an acquittal in State v. Bales, a Shawnee County aggravated indecent liberties prosecution.
March 2009 KSC docket
Posted on February 25, 2009Here are the criminal cases on the KSC docket for March 23-26, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Don't confuse premeditation with foreseeability
Posted on February 14, 2009Michelle Davis won in State v. Overstreet, No. 95,682 (Kan. Jan. 30, 2009), obtaining a new trial in a Sedgwick County attempted first-degree murder conviction. The KSC relied on three separate grounds for reversal: clear error for a giving a foreseeablility instruction in a premeditated murder case, clear error regarding an improper supplemental instruction given to the jury during deliberations after the jury indicated it was split on one count, and ineffective assistance of trial counsel for failure to subpoena key witnesses...
Actually, you can sequester witnesses
Posted on February 14, 2009Patrick H. Dunn won in State v. Brinklow, No. 96,231 (Kan. Jan. 30, 2009), obtaining a new trial in a Pratt County aggravated indecent liberties prosecution. The KSC agreed that the district court's failure to exercise it's discretion regarding sequestration of witnesses required a new trial:The mother was present during A...
Acquittal in Salina
Posted on February 13, 2009Here is a Salina Journal article reporting that C. Richard Comfort won an acquittal in State v. Hulsey, ending a Saline County indecent liberties prosecution.
Acquittal in exposure to HIV case
Posted on February 12, 2009Here is a Hutch News article reporting that Kelly Driscoll won an acquittal in State v. Bailey, a Reno County intentional exposure to HIV prosecution.
Probation is possible under original Jessica's Law
Posted on February 11, 2009Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica's Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, "[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K...
Must know it's there to knowingly remove it [NOT FINAL]
Posted on February 04, 2009Reid Nelson won in State v. Davison, No. 99,229 (Kan. App. Jan. 30, 2009), reversing a Shawnee County removal of a theft detection device conviction. The COA quickly dismissed the state's claim that this appeal was moot because of Mr. Davison's death and held that the statute in question requires knowledge of the theft detection device and intent to facilitate theft...
Probationers have some liberty interests
Posted on February 04, 2009Patrick H. Dunn won in State v. Bennett, No. 98,038 (Kan. Jan. 30, 2009), holding that a probation condition subjecting probationers to searches for no reason is unconstitutional under the Fourth Amendment and the Kansas Constitution. (Here is the previous blog entry on this case)...
Attention Jessica's Law attorneys
Posted on February 02, 2009Recently, the ADO has been trying to get the KSC to consider the issue of whether a Jessica's law sentence is a cruel or unusual punishment under Section 9 of the Kansas Bill of Rights (and/or the Eighth Amendment of the US Constitution). The argument is based on State v...
Suppression and change of venue in Emporia murder case
Posted on January 29, 2009Here and here are a couple of Emporia Gazette articles reporting that Judge Wheeler granted a motion for change of venue and also substantially restricted the state's evidence in a Lyon County felony murder prosecution after remand from the Kansas Supreme Court in State v...
Just because you don't absolutely have to doesn't mean you shouldn't [NOT FINAL]
Posted on January 23, 2009Washburn student intern Star Jones and I won in State v. Branstetter, No. 98,884 (Kan. App. Jan. 23, 2009), reversing some Sedgwick County drug convictions on Fourth Amendment grounds. The case involved whether state proved the legality of an impoundment search...
Misconduct leads to dismissals
Posted on January 23, 2009Here is a Hutch News article reporting that the new Cherokee County prosecutor dropped some felony charges filed by his predecessor, who was being investigated for misconduct.
Not guilty in agg kidnapping
Posted on January 23, 2009Here is a Hutch News article reporting that three defendants were acquitted in a Reno County aggravated kidnapping prosecution. More details if/when they come out or are forwarded to me.
Ventris argument
Posted on January 21, 2009Kansas v. Ventris was argued this morning. The Court was somewhat cold, and it was hard to judge how the Court is leaning (I don't think Souter or Kennedy asked a question). The transcript is available by now, but my quick thought is that the important point is whether the Sixth Amendment violation occurs during the illegal interrogation (by the snitch) or if the violation is when the evidence is admitted at trial for impeachment...
Kansas Defenders goes to Washington
Posted on January 18, 2009Washington DC is the place to be this week, and Kansas Defenders will be there. Matt Edge (ADO) will argue in the Supreme Court in Kansas v. Ventris, and there is the historic inauguration of Barack Obama.Randall is already in DC, as he will be second chair in Ventris...
On the road. . .
Posted on January 18, 2009As blogged below, Kansas Defenders will be in Washington DC this week for the Ventris argument and Obama's inauguration. This post details my odyssey on the bus from Lawrence, KS to Washington.Part 1St. Louis 6:00 pm SundayThis is the line to transfer buses in St...
I'm 68% sure this case is right. [NOT FINAL]
Posted on January 17, 2009Shawn Minihan won in State v. Shadden, No. 97,457 (Kan. App. Jan. 16, 2009), getting a new trial in a Johnson County DUI case. The COA held that an officer cannot use relate NHTSA guidelines estimating level of intoxication based on field test observations:The danger inherent in officer testimony that establishes a correlation between a driver's performance during a given field sobriety test and a specific level of intoxication is the possibility that the jury will give the test results undeserved weight as "scientific evidence" when the reliability of the test results has not been established under Frye...
Prior bad acts case
Posted on January 17, 2009Kerry E. McQueen and Stephen C. Griffis won in State v. Prine, No. 93,345 (Kan. Jan. 16, 2009), obtaining a new trial in a Finney County statutory rape case. The KSC reversed because of improper admission of prior bad acts pursuant to K.S.A. 60-455. The KSC held that intent nor absence of mistake or accident were not at issue in the statutory rape case and therefore the prior bad acts could not be admitted on those bases...
Governor issues first pardon in Kansas state case in more than a decade
Posted on January 15, 2009Here is a Topeka Capital-Journal article noting that the governor issued a pardon in a DUI case, allowing a businessman to travel to Canada. The article indicates this is Sebelius' first pardon. I do not think Graves ever granted a pardon or commutation petition.
Shawnee County asks AG to investigate Hecht
Posted on January 15, 2009The Shawnee County Commission is asking the Attorney General to investigate outgoing-DA Robert Hecht for the way that he has been paying himself for appellate work. Here is an article from the Topeka Capital-Journal. The article states that Hecht made $245,231...
Inmate cleared in HCF stabbing case
Posted on January 08, 2009Here is a Hutchinson News article reporting that Sarah McKinnon won in State v. Gadelkarim, a Reno County attempted murder prosecution involving a HCF inmate.
Sebelius picks Biles for KSC
Posted on January 07, 2009Dan Biles of Overland Park was picked today to become the newest member of the Kansas Supreme Court. Gov. Sebelius made the announcement at an 11:00 press conference. Here is the LJ World's coverage of the governor's selection.Biles is best known for representing the State Board of Education in a lawsuit that forced an increase in school funding...
Must confirm jury verdict in open court [NOT FINAL]
Posted on December 31, 2008Washburn student intern David Becker and I won in State v. Johnson, No. 99,102 (Kan. App. Dec. 31, 2008) reversing and remanding a Cheyenne County DUI conviction for a new trial due to failure confirm the jury's verdict in open court. The circumstances are probably pretty rare, but all lined up to cause the COA to question whether there was a unanimous verdict in the case...
Ninth Circuit holds 28-year failure to register sentence disproportionate
Posted on December 31, 2008I don't regularly blog about other rulings from other jurisdictions, but did want to note this blog entry highlighted on Sentencing Law and Policy here. The Ninth Circuit held that a 28-year sentence for failure to register was grossly disporportionate...
Charges dismissed
Posted on December 24, 2008Here is an Olathe News article reporting that prosecutors dropped charges without prejudice in State v. Hudson, a Johnson County assault and battery on a LEO prosecuction. The article notes that the state will be trying Ms. Hudson for the third time for a separate allegation of assault on a LEO.
Bush pardons another Kansan
Posted on December 24, 2008Here is an Emporia Gazette article reporting that President Bush pardoned a Lyon County man for a 43-year old federal conviction for forging an endorcement on a treasury check. The pardon, along with other granted that day were noted here at Pardon Power, a great blog for anyone who is interested in issues and news about state and federal pardons and commutations...
New Wichita PD perseveres
Posted on December 23, 2008Here is a nice article from the Wichita Eagle sharing the story of Latina Alston, a new PD in Sedgwick County. After reading her story, it seems very fitting that Latina has chosen to help the less fortunate by becoming a public defender.
Ineffective assistance in capital trial?
Posted on December 22, 2008a href="http://cjonline.com/stories/122208/loc_370073779.shtml"Here/a is a Topeka Capital-Journal article reporting some details of the remand hearing granted by the KSC in emState v. Cheatham/em, a Shawnee County capital appeal. I'll leave the conclusions for you the reader to draw.
No corroborating evidence [NOT FINAL]
Posted on December 19, 2008Meryl Carver-Allmond notched her first ADO win in State v. Cibrian, No. 99,812 (Dec. 19, 2008)(unpublished), reversing a Saline County possession conviction on Fourth Amendment grounds. The issue involved whether the arrest was illegal:in the present case, little evidence was presented concerning [informant's] and his girlfriends' veracity and reliability, as they clearly had motivation to place blame on others...
Dismissal in JoCo Sodomy prosecution
Posted on December 17, 2008John DeMarco won a dismissal in State v. Wheeler, a Johnson County sodomy prosecution. The case involved an alleged sex act between a nurse's aide (Wheeler) and a patient at a rehabilitation center. The State agreed to dismiss the case after the State's doctor changed his opinion on the alleged victim's capacity to consent...
You can't be the offender and the victim in the same case [NOT FINAL]
Posted on December 17, 2008Paul Shipp over at a href="http://inrelm.blogspot.com/"Inre LM/a, noted that he recently won in a href="http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081212/100197.htm"In re E.R./a, No. 100,197 (Dec. 12, 2008), reversing a Finney County juvenile adjudication for a violation of Romeo and Juliet law...
Eleventh hour dismissal
Posted on December 15, 2008Here is an Emporia Gazette article reporting that the state dismissed attempted intentional second-degree murder charges in State v. Swafford, a Lyon County prosecution. Another newspaper article noted that the prosecutor indicated that it was likely that Mr...
New Judge in Douglas County
Posted on December 12, 2008Sally Davis Pokorny of Lawrence has been appointed by the governor to be a district court judge in Douglas County. She will fill the vacancy created by the retirement of Judge Jack Murphy, who is leaving Jan. 12. Here is coverage of the selection by the LJ World.
When the defendant objects to criminal history, prior PSI no longer sufficient proof
Posted on December 12, 2008Reid Nelson won in State v. Schow, No. 96,820 (Kan. Dec. 12, 2008), reversing Mr. Schow's sentence and remanding for to the district court for resentencing and reconsideration of his motion to withdraw plea. In reversing the sentence, the KSC held that it was improper for the sentencing court to place the burden on the defense to disprove alleged prior convictions that were listed in a prior, unobjected-to PSI:[W]e find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence...
Human rights, right here.
Posted on December 11, 2008Yesterday was the 60th Anniversary of the passage of the Universal Declaration of Human Rights. Here is a link to a site reporting on the anniversary, and here is a link to the UN web site including the text of the Declaration. For those who don't know (like me before yesterday), the UDHR was created by the international community in response to the atrocities committed during World War II...
Fifth Amendment challenge to rebuttable presumption for adult prosecution
Posted on December 10, 2008The Nevada Supreme Court held in In re William M, that is system of presumptive adult prosecution for certain age children accused of certain crimes, violates the Fifth Amendment. I think the case may be distinguishable from Kansas in some respects, because the Nevada scheme sets up a certain requirement for rebuttal that would include requiring the juvenile to admit guilt (thus violation the Self-Incrimination Clause)...
Sedgwick County PD stops taking new cases for now
Posted on December 09, 2008Here is a Wichita Eagle article reporting that the Sedgwick County PD's office will stop taking cases for a few weeks because of caseload issues. The article indicates that cases will start being assigned to private attorneys, who will be reimbursed by the state...
Lesser in juvenile case
Posted on December 09, 2008Marc Schultz won in In re A.W., a Shawnee County juvenile robbery prosecution. The jury took less than an hour to come back with a lesser verdict for misdemeanor theft. I guess jury trials can work in juvnile cases!
Prior drug use is not automatically admissible in possession case
Posted on December 05, 2008Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. Dec. 5, 2008), getting a new trial in a McPherson County drug prosecution. Here is our previous blog entry on this case. The KSC agrees with the COA that evidence of prior drug use was not relevant to his possession case...
You don't have to acquit to consider a lesser [NOT FINAL]
Posted on December 05, 2008Lydia Krebs won today in State v. Espinales, No. 98,193 (Kan. App. Dec. 5, 2008)(unpublished), getting a new trial in a Douglas County murder prosecution. Mr. Espinales was originally charged with first-degree murder and district court gave lesser-included offense instructions for second-degree murder and voluntary manslaughter...
State has to prove obstruction as charged [NOT FINAL]
Posted on December 05, 2008Matthew J. Edge won in State v. Ochoa, No. 98,922 (Kan. App. Dec. 5, 2008)(unpublished), reversing a Wyandotte County obstruction conviction. The state charged Mr. Ochoa with obstructing Officer Bussell with relation to arrest on a automobile burglary...
Acquittal in less than an hour
Posted on December 04, 2008Here is a Hutchinson News article reporting that Janis Knox won an acquittal in State v. Schutte, ending a Reno County child abuse prosecution.
January 2009 KSC docket
Posted on December 04, 2008Here are the criminal cases on the KSC docket for January 26-28, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Look for the expiration date [NOT FINAL]
Posted on December 04, 2008We had a couple of probation violation appeals in the last couple of weeks that I thought might be worth mentioning.Patrick H. Dunn won in State v. Snapp-Woods, No. 98,765 (Kan. App. Nov. 21, 2008)(unpublished); the COA reversed and remanded for discharge because a "Consent and Order to Extend Probation" was filed two days after expiration of the probation term...
Nice article on public defender pay discrepancies
Posted on November 29, 2008Here is a Wichita Eagle article reporting on pay discrepancies between Sedgwick County prosecutors and public defenders, and some of the implications of that salary gap. I think the discrepancies are even bigger in Johnson County (and are probably less in some other districts, although I would guess that prosecutors get paid more than public defenders in every county that has a district attorney)...
My trash isn't public! [NOT FINAL]
Posted on November 29, 2008Roger Falk won in State v. Hoffman, No. 99,755 (Kan. App. Nov. 26, 2008), affirming Judge Frederick's suppression order in a Greeley County drug prosecution. The COA majority decided the case turned on whether the owner retained a sufficient expectation of privacy in some trash...
Is the Intoxilyzer 5000 racist?
Posted on November 28, 2008Connecticut DUI lawyer James O. Ruane claims that the Intoxilyzer 5000 is racially biased. In a recent case, Ruane filed a motion to suppress the results of the Intoxilyzer. He stated: the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men?s test results vary from the sobriety standard set by the device...
You can't attempt to solicit [NOT FINAL]
Posted on November 25, 2008James Pratt won in State v. Rexroat, No. 99,432 (Kan. App. Nov. 21, 2008)(unpublished), affirming Judge Frederick's dismissal of a Finney County attempted indecent solicitation prosecution. Lucille Douglass was the defense attorney at the district court level...
Judge ordered to desist
Posted on November 22, 2008Shawnee County District Court Judge Mitchell received a cease and desist order from the Judicial Qualifications Commission for testifying as a character witness in a case, which judges are not allowed to do. Here is the Topeka Capital-Journal reporting on the disciplinary action.
Dismissal of Western Kansas murder case
Posted on November 21, 2008Here is What the Judge Had For Breakfast's report that the state will dismiss without prejudice murder charges that have resulted in two hung juries. The dismissal order indicates that the parties anticipate that it will be final unless the state discovers some new evidence in the future that "materially strengthens" its case...
Prosecutorial misconduct [NOT FINAL]
Posted on November 21, 2008Rachel Pickering won today in State v. Morris, No. 97,785 (Kan. App. Nov. 21, 2008), obtaining a new trial in a Pottowatomie County aggravated indecent liberties with a child prosecution. The COA observed that the misconduct sort of ran the gamut:The prosecutor's examination questions to witnesses and remarks in closing argument to the jury, which stated the prosecutor's personal opinion of witnesses' credibility; suggested to the jury that it should abandon its common sense when considering these kinds of cases; expressed the prosecutor's personal belief on matters outside the evidence; vouched for the State of Kansas; referred to matters not in evidence; vouched for the credibility of the State's witness; solicited testimony from the defendant on the credibility of another witness; buttressed the credibility of the State's witness; and appealed to the passion and prejudice of the jury, were improper and constituted prejudicial error because the questions and remarks called the jurors' attention to matters that would not have been proper for them to consider in arriving at their verdict...
Short list for KSC
Posted on November 14, 2008Here is the news release announcing the short list for the upcoming vacancy on the Kansas Supreme Court: Overland Park attorney Dan Biles, Douglas County Chief Judge Robert W. Fairchild and Court of Appeals Judge Tom Malone.The governor has a lot of pending judicial appointments at a time when there is a lot of speculation whether she will even be governor 60 days from now!
Explaining late appeals
Posted on November 14, 2008Autumn Fox and Doug Thompson won today in State v. Patton, No. 95,860 (Nov. 14, 2008) getting a late appeal for their client. Along the way, the KSC felt the need to refine the substance and procedure for late appeals under State v. Ortiz:We need not repeat the rest of our Kargus discussion here...
Short list for district judge in Lawrence
Posted on November 14, 2008Here is the announcement of the short list to fill a vacancy in the Seventh Judicial District, including former ADO B. Kay Huff; and Sally Davis Pokorny, a Lawrence attorney, and Kenneth M. (Mike) Warner, an assistant U.S. district attorney in the Western District of Missouri.
Second short list in First district
Posted on November 14, 2008Having just filled the first of two vacancies in the Northeast Kansas judicial district, here is the announcement of the second short list of district court nominees, including Gerald R. Kuckelman, Atchison County Attorney; Michael F. Willcott and Danny K...
Not guilty in Lyon County rape case
Posted on November 11, 2008Here is an Emporia Gazette article reporting that a Lyon County jury ended a week-long Lyon County rape prosecution with acquittals on all counts. Anybody know who the defense attorney was?
New judge in 1st district
Posted on November 07, 2008Here is the governor's press release announcing that she has appointed Michael Gibbens to be a district judge in Leavenworth and Atchison Counties.
Judicial elections results
Posted on November 05, 2008Here is a Wichita Eagle article reporting on some of the contested judicial elections in Sedgwick County. Of note, J. Patrick Walters won over incumbent district judge Rebecca Pilshaw, who has had several disciplinary issues in the past few years. Incumbent districrt judge Warren Wilbert, who had a disciplinary matter of his own, appears to have narrowly defeated former district judge Karen Langston...
December 2008 KSC Docket
Posted on October 31, 2008Here are the criminal cases on the KSC docket for December 2-4, 2008. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
16 apply to be Douglas County judge
Posted on October 24, 200816 Douglas County attorneys have applied to fill the vacancy created by Judge Jack Murphy's upcoming retirement. Here is an article from the LJ World on the subject. If you have any input regarding the candidates, be sure to contact the Nominating Commission as soon as possible.
Judicial elections around the corner
Posted on October 21, 2008Here is a Wichita Eagle article reporting on a couple of contests for open judicial seats in Sedgwick County. Elections are just two weeks away!
Lesser verdict in Salina
Posted on October 21, 2008Here is a Salina Journal article reporting that Julie McKenna won acquittal on felony charges in a Saline County drug prosecution.
Only eight apply for KSC
Posted on October 17, 2008Here is a press release naming the eight persons that submitted their names for the upcoming vacancy on the Kansas Supreme Court, including Court of Appeals Judges Thomas Malone and Steve Leben and District Judge Robert Fairchild. The list also includes former democratic AG candidate and current Securities Commissioner Chris Biggs and former state representative Ward Loyd...
Acquittal in Lawrence
Posted on October 17, 2008Here is a Lawrence Journal-World article reporting that Michael Clarke won an acquittal on the primary charges in a Douglas County attempted aggravated criminal sodomy prosecution. The article is deliberately sketchy about the details, so I don't know much more...
Maybe speedy trial clock doesn?t always start at arraignment
Posted on October 15, 2008As everyone knows, K.S.A. 22-3402 sets forth a defendant?s statutory right to a speedy trial in Kansas. The statute explicitly states that the speedy trial clock starts on the day of arraignment. However, I have recently argued that the speedy trial clock should start on the day the defendant was supposed to have his or her arraignment...
SCOTUS grants cert petition in Ventris
Posted on October 13, 2008For those of you who haven't heard, SCOTUS granted the State?s petition for writ of certiorari in State v. Ventris, No. 94,002 (KSC Feb. 1, 2008). The KSC had reversed Mr. Ventris? convictions for aggravated robbery and aggravated burglary because the district court admitted impeachment testimony from a jailhouse informant who had been surreptitiously planted in his jail cell by the State (after Mr...
Accidents happen [NOT FINAL]
Posted on October 10, 2008Washburn student intern Krystle Dalke and I won in State v. Hernandez, No. 98,968 (Kan. App. Oct. 10, 2008), affirming Judge Young's dismissal of a Saline County aggravated child endangerment prosecution. The case stemmed from an accident where Ms. Hernandez' child wandered from his house and fell into a pond created by the heavy rains in May 2007...
Acquittal in high profile Shawnee County murder case
Posted on October 09, 2008Here is a Topeka Capital-Journal article reporting that Kathleen Ambrosio won an acquittal in a State v. Netherland, a high profile Shawnee County first-degree murder prosecution. You can read about the eight-day trial here, here, here, and here. I think there was a lot of issues surrounding false confessions in this case.
Jurors seem satisified with appointed judges
Posted on October 09, 2008Here is an Olathe News article reporting that jurors surveyed indicated a very favorable opinion of the appointed district judges in Johnson County. The article indicates that there is a measure on the ballot in Johnson County regarding a change from appointed to elected judges...
Couple of district court vacancies
Posted on October 09, 2008Here are the press releases announcing judicial vacancies in the Seventh Judicial District (Douglas County) and the Tenth Judicial District (Johnson County). If you think you would be a good judge, get your application in now!
Fifteen apply for district court in 1st District
Posted on September 29, 2008Here is the news release announcing that fifteen lawyers, including several prosecutors, applied for the impending vacancies in the First Judicial District covering Leavenworth and Atchison Counties. If you have any input on these attorneys, be sure to get it to the Nominating Commission as soon as possible.
Suppression order upheld [NOT FINAL]
Posted on September 29, 2008Richard E. Jones won in State v. Solis-Munoz, No. 99,632 (Kan. App. Sept. 26, 2008), affirming Judge Jeuenberger's supprssion of involuntary statements to police in a Shawnee County second-degree murder prosecution. The COA quickly held that it had jurisdiction over the interlocutory appeal, but went on to find that substantial competent evidence supported the suppression order:Neither the State nor Solis-Munoz dispute the essential facts pertaining to the issue of whether the statement was voluntary...
Reversal based on improper shackling before jury [NOT FINAL]
Posted on September 27, 2008Washburn student intern Patrick Turner and I won in State v. Anderson, No. 96,602 (Kan. App. Sept. 26, 2008), remanding a Cloud County criminal threat prosecution for a new trial. The only issue addressed in the opinion was the district court's refusal to allow Mr...
That's why you need to confront
Posted on September 27, 2008I saw a couple of related posts this morning. First was this nice post on the Kansas Federal Defender blog reporting on the closing of a Detroit police lab for, at least, incompetence. Professor Friedman also commented on the closure in this post on the Confrontation Blog, noting that it provides ample evidence of the need for cross-examination of what proseuctors want to call "routine" lab reports.
He looks pretty alive to me [NOT FINAL]
Posted on September 26, 2008Washburn student intern Laurie Blanton and I won in State v. Shafer, No. 98,016 (Kan. App. Sept. 29, 2008)(unpublished), reversing a Saline County possession conviction. Officers were called to investigate Mr. Shafer who had been reported slumped over in his vehicle in a driveway...
New district judge in Johnson County
Posted on September 25, 2008Here is the governor's press release announcing the appointment of Thomas Kelly Ryan to the district bench in the Tenth Judicial Circuit. The press release indicates that Ryan practices in the area of criminal defense, so some of you may know him.
Nominating commission gets busy to fill spot on KSC
Posted on September 16, 2008Here is a news release announcing that the Supreme Court Nominating Commission is accepting nominations to fill the vacancy on the Kansas Supreme Court that will result from Chief Justice McFarland's retirement this upcoming January. Applications are due in the Clerk's office October 17, 2008.
Two vacancies in First
Posted on September 16, 2008Here is a news release reporting that the First District Judicial Nominating Commission (covering Leavenworth and Atchison Counties) will be busy with the impending retirement of Judge Lacey and Judge Stewart. Nominations are due September 25, 2008, so if you are interested in being a district judge, or know someone that should be a district judge, get busy!
Short list in Johnson County
Posted on September 16, 2008Here is the news release announcing that the Johnson County Judicial Nominating Commission forwarded three names to the governor to fill the district judge position being vacated by Judge Isenhour. The nominees are Thomas Kelly Ryan, Neil Foth, and magistrate judge James Phelan...
Long road to IAC finding
Posted on September 15, 2008Alice White at the KU Defender Project won a new trial in Saleem v. State, No. 06-CR-1843 (K. Dist. Ct. Sept. 5, 2008). Mr. Saleem was convicted of murder in 1997 and lost his direct appeal in 1999 (here). Mr. Saleem filed an initial 1507 petition, which was denied in 2000...
Juvenile adjudication doesn't trigger persistent sex offender penalty [NOT FINAL]
Posted on September 13, 2008Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. App. Sept. 5, 2008), reversing a Sedgwick county enhanced persistent sex offender sentence. The COA reviewed the statutory scheme and concluded that it only applies to convictions, not juvenile adjudications:K...
A little cash in your pocket isn't probable cause
Posted on September 13, 2008Kristen Patty and Kurt Kerns won in State v. Fitzgerald, No. 95812 (Kan. Sept. 12, 2008), reversing a Sedgwick County possession with intent convicition. The case stemmed from a valid vehicle stop:Fitzgerald was pulled over while traveling by himself in his girlfriend's truck in the late afternoon...
Acquittal in Reno County kidnapping case
Posted on September 12, 2008Sarah Sweet-McKinnon won an aquittal in State v. Curtis, ending a Reno County kidnapping and aggravated burglary case. Here is the Hutch News article reportingon the case. Nice job Sarah!
Mental Health Courts
Posted on September 11, 2008Ron Sylveseter, at What the Judge Ate for Breakfast, reports that the City of Wichita has received federal funding for a mental health court. According to Hon. Matthew D?Emic, there were over 150 mental health courts in the U.S. as of last fall...
October 2008 KSC docket
Posted on September 09, 2008Here are the criminal cases on the KSC docket for October 14-17, 2008. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
PD runs for US Senate!
Posted on September 08, 2008Well, at the risk of being accused of self-promotion, I did want to announce to all blog readers that I will be on the ballot this year as the Libertarian candidate for US Senate in Kansas.For the past seven years, I have been more and more frustrated with the current administration's gutting of the Rule of Law...
Speedy sentencing right
Posted on September 02, 2008I saw this blog post on Sentencing Law and Policy reporting that the Delaware Supreme Court vacated a conviction based on a constitutional speedy trial violation stemming from a delayed sentencing proceeding. We have previously blogged about such a claim here and I have filed a sentencing issue based on the Speedy Trial Clause in the last year...
Couple of cert petitions filed
Posted on September 02, 2008We filed a couple of cert petitions last week.The first was Denny v. Kansas, seeking review of (1) the prior conviction exception left intact after Apprendi and (2) whether juvenile adjudications fall into the prior conviction exception. We have filed a couple dozen cert petitions on these issues since Apprendi in 2000, and although the SCOTUS has ordered responses in a couple of them, none have been granted...
Outside the scope [NOT FINAL]
Posted on September 02, 2008Mark Schoenhofer won in State v. Morlock, No. 97,447 (Kan. App. Aug. 29, 2008), reversing a Sedgwick County possession with intent conviction. The conviction stemmed from evidence obtained during a car stop. The COA majority held that questioning by officers about Mr...
Downward departure affirmed
Posted on August 30, 2008Janine Cox won in State v. Stanley, No. 98,261 (Kan. App. July 25, 2008), affirming a downward durational depature sentence imposed by Judge Nafziger in a Jackson County aggravated indecent liberties with a child prosecution. The district court imposed a 60-month prison sentence rather than the 102 month presumtive sentence based on two factors: (1) the victim's comments that she encouraged the relationship, and (2) the age difference between Stanley and the victim was ?not significantly different...
And the survey says . . .
Posted on August 29, 2008Here is a link to the newly reported judicial evaluations issued by the newly created Commission on Judicial Performance. The reports recommend that all of the appellate judges up for retention be retained. There appears to be some glitches to be worked out of this system, particularly with regard to the attorney evaluations...
Acquittal in Hutchinson
Posted on August 28, 2008Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Jones, ending a Reno County possession prosecution.
Municipal judge named district judge
Posted on August 28, 2008Here is the Topeka Capital-Journal article reporting that the governor appointed Cheryl Rios Kingfisher district judge in Shawnee County. The article indicates that she will become the fourth woman on the fifteen member bench and the first Hispanic judge on the Shawnee County bench.
History in the making
Posted on August 27, 2008Here is What the Judge Ate for Breakfast's coverage of the historic panel held in Wichita this week. As Ron Sylvester notes, this is the first time that three women (who are regular members of the court) have sat on a panel together.Carl was before this panel, but he was not the one who called a judge "Ma'am...
But, he's a crackhead!
Posted on August 25, 2008Randall Hodgkinson won in State v. Hughes, No. 95,256 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder and aggravated burglary. Julia Spainhour won in the companion case, State v. Carapezza, No. 95,233 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder, aggravated burglary, aggravated robbery, and misdemeanor theft...
Uh guys . . . the report says negative
Posted on August 23, 2008Here is a Hutch News article reporting that Judge McCarville dismissed a Reno County trafficking prosecution (on the prosecutor's motion) after noticing that the KBI report turned up negative for meth on the substance found in the jail cell. Judge McCarville noticed that fact during the preliminary hearing, even though neither attorney apparently did...
Free Immigration Law CLE
Posted on August 19, 2008For those of you who don't read the Kansas Federal Defender blog (you should, btw), there will be a free immigration/criminal law CLE in KCMO on September 18, 2008. The list of speakers is quite impressive. Here is the information about the CLE and how to sign up...
Flashing lights mean stop [NOT FINAL]
Posted on August 18, 2008Lydia Krebs won in State v. Mollett, No. 97,999 (Kan. App. Aug. 15, 2008), reversing a Sedgwick County burglary conviction and remanding for new trial. The COA majority concluded that by turning on lights, officers seized Mr. Mollett:Relying on our Supreme Court's decisions in Morris and Greever, we find that Mollett's initial encounter with Sergeant Espinoza was not voluntary, but occurred under a show of authority...
Acquittal on agg battery
Posted on August 14, 2008Here is a Hutch News article reporting that Sam Kepfield won an acquittal in a Reno County aggravated battery prosecution. The jury convicted of theft, but apparently didn't find the state's case persuasive on the person felony charged.
Not guilty in ten minutes
Posted on August 14, 2008Kip Elliot won an acquittal last week in State v. Sanders, ending a Shawnee County drug and trafficking prosecution. Kip said the jury was out about ten minutes. Short and sweet.Haven't heard much about verdicts lately from the field. Keep us up to date so we can keep everyone else up to date!
If you complete it, it's not an attempt [NOT FINAL]
Posted on August 13, 2008Carl Folsom won in State v. Gonzales, No. 97,572 (Kan. App. Aug. 8, 2008), reversing a Finney County attempted aggravated sexual battery conviction. The COA agreed that the record contained no evidence that the crime was not completed, which is an element of attempt...
Nice article about DNA testing
Posted on August 07, 2008Here is a Lawrence Journal-World article reporting on a case where the KU Defender Project in conjunction with the Innocence Project, is getting some DNA testing in a decades-old rape case.
Judicial election results
Posted on August 06, 2008Here is a Kansas City Star article reporting that incumbent district judge Muriel Harris lost her primary race to assistant district attorney Constance Alvey.Here is a Wichita Eagle article reporting that incumbent district judge Rebecca Pilshaw narrowly won her primary contest against Ross Alexander...
Prosecutorial election results
Posted on August 06, 2008Several sitting prosecutors lost primary elections last night. Here is a Topeka Capital-Journal article reporting on a high profile race here in Shawnee County, where Eric Rucker easily defeated incumbent D.A. Robert Hecht. Rucker will face Chad Taylor in the general election...
You can pick your judge . . .
Posted on August 05, 2008In a couple of related articles, What the Judge Ate For Breakfast is soliciting comments on views about elected vs. selected judges here. And this is a Hutch News/AP article reporting that the Commission on Judicial Performance will be issuing its report on appellate and district judges subject to retention elections this cycle on August 29...
Applicants for district judge in Johnson County
Posted on August 04, 2008Here is the court's press release naming the sixteen applicants for district judge in Johnson County. The nominating commission gets to work on these applicants on August 11, 2008, so if you have comments, be sure to submit them asap. Here is coverage of the nomination process in the Olathe News.
But you didn't charge the big screen! [NOT FINAL]
Posted on August 02, 2008Washburn student intern Julia Mowers and I won in State v. Wilson, No. 98,154 (Kan. App. Aug. 1, 2008) (unpublished), getting a new trial in a Wyandotte County felony theft prosecution. Basically, client was charged with stealing several items from a house, including two small TVs...
Conflict office in Wichita
Posted on July 31, 2008Here is a short What the Judge Ate For Breakfast article reporting on the opening of a new conflict office in Wichita.
New judge in Wyandotte County
Posted on July 30, 2008Here is a Topeka Capital-Journal article reporting that the governor appointed Wes Griffin to be a district judge in Wyandotte County to finish the term of retiring Judge Sieve.
Nice article about Defender Project
Posted on July 25, 2008Thanks to Shawn Minihan for tipping me on this nice lawrence.com article on the KU Defender Project, including memories of Jana Mackey, a Defender Project student that was killed earlier this month.
Judges blogging?
Posted on July 25, 2008As we recently noted here, Judge Pilshaw recently entered the blogosphere with this initial entry reporting on a sentencing case she had completed a day or two before. When I talked about this with most of my colleagues, almost uniformly the first reaction was "Can a judge do that?"An anonymous response asked the same question on Judge Pilshaw's blog and her response was:I am perfectly free to discuss this case...
New judge and new short list in Topeka
Posted on July 25, 2008Here is the Topeka Capital-Journal article reporting that the governor appointed David Debenham to fill an upcoming vacancy on the district court. That appointment prompted the Shawnee County Nominating Commission to produce a new short list to fill a second upcoming vacancy...
Lost in Translation
Posted on July 23, 2008There is an interesting article in the Summer 2008 edition of the Criminal Justice Magazine (Vol. 23/ No. 2) that raises some important points on Miranda warnings. The article discusses ?Myths, Methods, and Model Solutions? to some common Miranda problems...
Judge Pilshaw Blogs
Posted on July 21, 2008Judge Pilshaw has started a blog so she can help voters get to know who she is as a person and a judge. Here is the link.
September 2008 KSC docket
Posted on July 21, 2008Here are the criminal cases on the KSC docket for September 2-5. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Judges rated in Sedgwick County
Posted on July 20, 2008Here is the long awaited Wichita Eagle/Wichita Bar Association survey lawyers regarding judges, including several judges running in contested elections this year. Judge Pilshaw again rated low, as did Judge Brooks and Judge Wilbert.
County attorney races
Posted on July 18, 2008Here 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.
New blog on juvenile right to a jury trial
Posted on July 16, 2008Paul Shipp, who recently won in In re L.M., (as blogged about here) establishing the right to a jury trial for juvenile defendants in Kansas, has apparently gotten a lot of questions and decided to start a blog to help foster discussion. Give it a look...
Don't argue with yourself [NOT FINAL]
Posted on July 12, 2008Monique K. Centeno, Lawrence W. Williamson, Jr., and Sean Shores won in State v. Toney, No. 97,326 (Kan App. July 11, 2008), remanding for a new hearing on Mr. Toney's motion to withdraw his plea in a Sedgwick County burglary prosecution. The claim on appeal was that Mr...
Fifteen apply for Dowd's seat
Posted on July 12, 2008Here is a Topeka Captial-Journal article reporting that fifteen applied for the district judge vacancy to be created by Judge Dowd's upcoming retirement. The list includes the attorneys who were on the most recent short list blogged about here. If you have comments that would be useful to the nominating commission, get them in soon...
Limits on candor to court
Posted on July 07, 2008Patrick Dunn won in State v. Hemphill, Nos. 95,209 and 95,210 (Kan. July 3, 2008). The KSC reversed the district court's denial of Hemphill's motions to appeal out of time (one for his sentence and one for his motion to withdraw his plea). The KSC ordered a new plea withdrawal hearing under Kargus v...
Inconsistent verdicts?
Posted on July 07, 2008I noted that the Maryland Court of Appeals recently abandoned its long-standing common law precedent allowing inconsistent verdicts in criminal cases. In Price v. State, the Maryland high court acknowledged that many other jurisdictions permit such verdicts and that it had long allowed such verdicts...
Out with the new, in with the old
Posted on July 07, 2008I guess I knew that when somebody takes the Colorado Bar Exam, it's probably not to enhance her resume at the ADO.Sarah Morrison left the ADO late last month to move to Colorado to join a small firm there. A lot of Sarah's family is in the Denver area, so it really wasn't a big surprise...
Murder conviction reversed for failure to give lesser
Posted on July 03, 2008Janine Cox won in State v. Scaife, No. 97,183 (Kan. July 3, 2008), getting a new trial in a Wyandotte County premeditated murder case (the KSC affirmed convictions for attempted first-degree murder and aggravated robbery). The prosecution was a "combined" premeditated/felony murder case...
Involuntary statements
Posted on July 03, 2008Pantaleon Florez, Jr. won in State v. Karin Morton, No. 97,848 (Kan. July 3, 2008), affirming Judge James Smith's suppression of statements in a Franklin County making a false information prosecution. The KSC affirmed the COA's holding that Ms. Morton was not in custody and therefore there was no Miranda violation...
District judge accused of sexual misconduct
Posted on July 02, 2008Here is a Lawrence Journal-World article reporting that District Judge Frederick Stewart, from Leavenworth County is facing disciplinary charges stemming from alleged sexual misconduct with a member of his staff.
No true bill
Posted on July 02, 2008Here is a Wichita Eagle article reporting that the grand jury investigating abortion crimes in Sedgwick County returned no true bill. Remember that a Johnson County grand jury already reached a similar result earlier this year (as blogged about here)...
IAC in murder case
Posted on June 30, 2008Jean Gilles Phillips and student interns Ashley Epperly and Sarah Pfieffer at the KU Defender Project won in Bledsoe v. Bruce, No. 07-3070-RDR (D. Kan. June 23, 2008), a federal 2254 petition. Mr. Bledsoe's murder conviction was affirmed by the KSC (here) in 2002 and denial of his 1507 motion claiming IAC was affirmed by the KSC (here) in 2007...
New blog about courts in Wichita
Posted on June 29, 2008At least new to me. Here is a link to What the Judge Ate for Breakfast, a blog by Ron Sylvester, the court beat reporter for the Wichita Eagle. He has several interesting entries on stories happening in Wichita courts. Sylvester has always seemed to be a pretty even-handed reporter, so I will be checking his blog often!
Pilshaw censured
Posted on June 29, 2008Here is the judicial discipline decision in In re Pilshaw, No. 100,060 (June 27, 2008), climaxing the disciplinary proceedings against her previously blogged about here and here. The KSC publicly censured Judge Pilshaw for yelling at prospective jurors:The aim of judicial discipline is "the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual...
Short list and another vacancy in Topeka
Posted on June 25, 2008Here is Topeka Capital-Journal article reporting on the short list to fill the district court vacancy created by Judge Conkin in Shawnee County. The short list is Dave Debenham, Ruth Graham, and Cheryl Rios Kingfisher. If you have comments about these nominees, let the governor know...
Former ADO applies for district judge
Posted on June 25, 2008Mary Prewitt, who spent a short time in the ADO, is on the list of attorneys applying for the district judge position in the 2d Judicial District. Here is a link to a Lawrence Journal-World article reporting Mary's background and on the other six applicants as well...
Not guilty in double murder case
Posted on June 25, 2008Steve Rosel won an acquittal in State v. Hopper, a Sedgwick County double first-degree murder prosecution. Here is coverage in the Topeka Capital-Journal.
Juveniles have right to a jury trial
Posted on June 20, 2008Paul Shipp won in In re L.M., No. 96,197 (Kan. June 20, 2008), reversing a Finney County juvenile prosecution and overruling Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984), the twenty-four year old precedent holding that juveniles are not entitled to a jury trial...
Adult sentence can't be consecutive to juvenile sanction
Posted on June 19, 2008Rachel Pickering and Sarah "The Kid" Morrison won in State v. Crawford, No. 98,312 (Kan. App. June 13, 2008), reversing the district court?s denial of a motion to correct illegal sentence. Crawford claimed the sentencing court erred in ruling his adult sentences consecutive to his juvenile adjudications...
Public safety stop comes up short [NOT FINAL]
Posted on June 16, 2008Carl Folsom won in State v. McCaddon, No. 96,051 (Kan. App. June 13, 2008), reversing a Saline County DUI conviction. The COA held that the basis for concern when investigating an anonomyous tip regarding a domestic dispute was insufficient to justify a public safety stop:Public safety stops fall under the police's community caretaking function, which expands beyond the police's role in investigating crime...
Suspicionless probation search condition unconsitutional [NOT FINAL]
Posted on June 13, 2008Pat Dunn won in State v. Bennett, No. 98,038 (Kan. App. June 13, 2008) and three other Dickinson County cases vacating a probation condition requiring probationers to submit to suspicionless searches:While no specific standard has been set forth by the United States Supreme Court or Kansas courts, the Tenth Circuit Court of Appeals has analyzed Kansas law with respect to whether suspicionless parolee searches are valid and has thus shed some light on this issue...
IAC win in district court
Posted on June 12, 2008Kevin Shepherd won at an IAC remand hearing in State v. Justin Elnicki, 01CR 1828 (Kan. Dist. June 5, 2008), obtaining a third trial in a Shawnee County rape prosecution. This is the same case as the 2005 ADO case of the year, where Pat Dunn got a reversal based on inappropriate comments on credibility included in a videotape interrogation being shown to the jury...
Can't use post-probation acts for probation violation
Posted on June 12, 2008Alice C. White of the Kansas Defender Project won in State v. Skolaut, No. 97,401 (Kan. May 16, 2008), substantially affirming Judge Kaufman's refusal to violate Mr. Skolaut's probation based on acts occuring after the probation period had expired. The KSC held that a district court can take such acts into account when determining disposition after violation, but not for the violation finding itself...
One judge position filled, one to go
Posted on June 10, 2008Here is the Governor's press release announcing the appointment of David W. Hauber as District Judge for the 10th Judicial District (Johnson County). This fills the position created by Judge Russell's retirement. It doesn't look like Mr. Hauber has a lot of criminal law experience...
How much investigation does it take to give a parking ticket? [NOT FINAL]
Posted on June 10, 2008Washburn student intern (now Salina PD) Andrew Parmenter and I won in State v. Gross, No. 97,444 (Kan. App. June 6, 2008), reversing a Sedgwick County drug conviction. Officers saw a car stop too close to a drive way and saw the driver start to walk away...
Statutory speedy trial [NOT FINAL]
Posted on June 09, 2008Sarah Morrison and Korey Kaul won in State v. Gore, No. 97,380 (Kan. App. June 6, 2008), reversing a Sedgwick County aggravated criminal sodomy conviction. On a record the COA found unclear, it held that the record was insufficient to support the district court's allocation of time to the defense:First, the fact that the trial court had known Ladner for a longer period of time than it had known defense counsel is not very helpful...
Character evidence win
Posted on June 06, 2008Robert R. Nigh, Jr. and Clark O. Brewster won in U.S. v. Yarbrough, No. 06-5229 (10th Cir. June 3, 2008), getting a new trial in a Oklahoma federal prosecution for obstructing an official proceeding and providing unlawful notice of a search or seizure warrant...
Willie Aikens Released
Posted on June 04, 2008Since I joined this blog roughly a month ago, I have been trying to figure out a way to link my love for baseball, and the Kansas City Royals, to a relevant topic regarding criminal defense. Well, today I found it. Willie Aikens, a key member of the 1980 Kansas City Royals (who beat the Yankees to go to the World Series), is to be released from federal prison today...
Scope limited during investigatory detention
Posted on June 02, 2008Larry Schwartz won in State v. Lacey Smith, No. 96,189 (Kan. May 30, 2008), upholding Judge St. Peter's suppression order in a Cowley County drug prosecution. The KSC succinctly summarized its opinion in its opening paragraphs:In Muehler v. Mena, 544 U...
Judicial candidates lining up in Sedgwick County
Posted on May 31, 2008Here is a Wichita Eagle article reporting that State Senator Phil Journey is running for district judge in Sedgwick County along with a lot of other people. Keep me up to date on any judicial election news around the state this election cycle so that I can pass it along!
Life sentence in capital case
Posted on May 31, 2008Sorry for the belated report. Gary Owens and Mark Manna won a life sentence in State v. Burnett, a Sedgwick County capital case. Here is the Wichita Eagle article reporting on the verdict.
Drug treatment statute does not affect length of probation
Posted on May 30, 2008On May 28, the COA granted the ADO's motion to publish in State v. Holt, No. 95,278 (Kan. App. July 13, 2007), giving some much needed love to former Apellate Defender Jay Witt.The Holt decision clarifies that the presumptive term of probation for a severity level 4 drug offense is 12 months- regardless of whether the court can impose a longer term for drug treatment...
Persistent Sex Offenders and Due Process
Posted on May 29, 2008Under K.S.A. 21-4704(j), if a defendant qualifies as a ?persistent sex offender,? their presumptive guidelines sentence is double the maximum duration they would normally receive under the Kansas Sentencing Guidelines. In other words, take the top of the presumptive guidelines box for the defendant?s offense, and double that...
Another Jessica's Law acquittal
Posted on May 28, 2008I 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...
Acquittal in Lyon County
Posted on May 27, 2008Here is a Hutch News article reporting that Sarah McKinnon and Kelly Driscoll won complete acquittal on ten counts of rape and twenty other charges in State v. Gregory out of Lyon County. Sarah did a good job of giving credit to the small-town jury in this article.
Threat to take away kids is coercive
Posted on May 16, 2008Jennifer 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...
Have to prove "inevitable" at hearing
Posted on May 16, 2008Michelle Davis won in State v. Stowell, No. 96,091 (Kan. May 16, 2008), reversing a Reno County drug conviction. In a short decision, the KSC finds that the COA correctly refused to apply the inevitable discovery rule to cure an otherwise clear illegal search and seizure:We need not decide if the majority's conclusion about Stowell's imminent bonding out was speculative...
In "custody" for habeas purposes [NOT FINAL]
Posted on May 16, 2008A pro se client won in Rawlins v. State, No. 97,260 (Kan. App. May 16, 2008), getting an order allowing her 1507 petition to go forward. Ms. Rawlins had been convicted and put on probation. After the convicton was affirmed on direct appeal, but while still on probation, Ms...
Scott?s Death Sentence Reversed
Posted on May 16, 2008Rebecca E. Woodman and Steven R. Zinn won today in State v. Gavin Scott, No. 83,801 (May 16, 2008). The court affirmed most of Scott's convictions (including capital murder), but reversed his conviction for premeditated murder, and reversed his death sentence...
Slow down, you move too fast . . .
Posted on May 14, 2008Lawrence Chacon won in U.S. v. Valadez-Valadez, No. 06-2341 (10th Cir. May 12, 2008), reversing a federal conviction for transporting illegal aliens out of New Mexico. The Tenth Circuit held that driving ten m.p.h. below speed limit does not provide a sufficient basis for a traffic stop for impeding traffic:The obvious candidate for the victim of Mr...
Pattern Instruction for Cross-Racial Eyewitness Identifications
Posted on May 12, 2008Below, you will find a model instruction on cross-racial eyewitness identifications that was proposed by the Criminal Justice Section of the American Bar Association?s Committee on Rules of Criminal Justice, Evidence, and Police Practices. In January, the committee adopted a resolution to encourage judges to give the following model jury instruction in cases where an eyewitness and the defendant are not the same race:In this case, the defendant, _______________ (insertname), is of a different race than ________________(insert name of identifying witness), the witnesswho has identified [him] [her]...
They wouldn't go away!
Posted on May 08, 2008Thanks (again) to Paige Nichols for tipping me off to this Tenth Circuit case. John T. Carlson, a federal public defender in Denver, won in U.S. v. Reeves, 07-8028 (10th Cir. May 7, 2008), reversing a Wyoming drug conviction based on an illegal seizure of Mr...
Welcome Carl!
Posted on May 08, 2008I'm glad to announce that Carl Folsom, my colleague at the ADO, has agreed to join me as co-contributor to this blog. Carl came to the ADO after graduating from KU and the Kansas Defender Project. He is interested in focusing on potential new issues in this blog a little more...
Judicial vacancy in Shawnee County
Posted on May 07, 2008Here is the news release seeking nominations for an upcoming vacancy on the Shawnee County District Court. Applications are due June 6, 2008, so get on it Shawnee County judicial wannabees! The vacancy will occur due to Judge Conklin's upcoming retirement.
Kansas Death Penalty Focus blog shuts down (for now)
Posted on May 05, 2008Sad to see that Kansas Death Penalty Focus decided to call it a day for now. I certainly understand the reasoning, but was glad to have a Kansas blog out there sort of devoted to that area. I hope that they decide to re-focus sometime in the not too distant future.
Keep me up to date
Posted on May 02, 2008You may have noticed an upsurge in verdict reports. Please keep me up to date if you get a good verdict or other litigation result (i.e. suppression order, dismissal, 1507 result, whatever). Let me know the case caption, county, and any funny/disturbing facts about the case and I will let everyone else that reads this blog (all five of you) know...
Lesser on agg robbery
Posted on May 02, 2008Mark Orr won a great verdict in State v. Gould, a Sedgwick County aggravated robbery prosecution. Client admitted theft, but denied robbery. Jury returns verdict of guilty of misdemeanor theft, given as lesser.
Not guilty in Lawrence
Posted on May 01, 2008Branden Bell won in State v. Ediger, getting an acquittal in a Douglas County aggravated battery prosecution. The jury took less than an hour to acquit after a day-long trial.
Jury hangs on main charge in Reno County
Posted on May 01, 2008Here is a Hutchinson News article reporting that a jury hung on four drug charges, including possession with intent to sell within 1000 feet of a school, only convicting of one count of obstruction. It was State v. McCoy, a Reno County case. Janis Knox, from the public defender office was the defense attorney...
I'm ineffective!
Posted on April 30, 2008Alice White from the Kansas Defender Project won a 1507 motion in Mattox v. State, 07 C 816 (April 23, 2008) on grounds of ineffective assistance of appellate counsel. I represented Mr. Mattox on his direct appeal, which included a couple of statement suppression issues...
If at first you don't succeed . . .
Posted on April 30, 2008Here is a AP article in the Topeka Capital-Journal reporting that a second jury hung on murder charges in a Stanton County murder prosecution. The article reports that the jury was split this time 7-5 (not saying which way). Kurt Kerns and Dan Monnat represent the co-defendants...
Why can't a jury acquit on greater and hang on the lesser, part II
Posted on April 29, 2008Thanks to Paige Nichols, who alerted me to the fact that Jean Gilles Phillips of the Kansas Defender Project won a 2254 petition in Tomlin v. McKune, 516 F.Supp.2d 1224 (D. Kan. Sep 25, 2007). I had blogged about this case in state court long ago here...
Acquittal in Sedgwick County
Posted on April 24, 2008Chrystal Krier and Monique Centeno won in State v. Collins, getting acquittals on two counts of agg assault on a LEO. Apparently, the facts of the case involved Mr. Collins attacking a great dane with a knife (who had viciously attacked him first). Mr...
Long list for Johnson County judge
Posted on April 23, 2008Here is an Olathe News article reporting on the applicants for the district judge vacancy to be created by Judge Russell's impending retirement. I don't really know any of these applicants, but if you do, and if you have an opinion about them, you should write to the nominating commission asap!
No exigent circumstances [NOT FINAL]
Posted on April 23, 2008Kathleen Neff and William K. Rork, Wendie C. Bryan, and Kenneth B. Miller, won for co-defendants in State v. Mell, No. 98,725 (Kan. App. April 18, 2008), partially affirming Judge Sachse's suppression order in a Franklin County cultivation prosecution...
SW Kansas acquittals
Posted on April 16, 2008In response to my inquiry, Lynn Koehn reports from the Garden City PD's office that she has been busy winning cases: In State v. Garcia, a Seward County agg robbery/agg burglary/agg assault/theft/crim damage prosection 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)...
Fourth Amendment win [NOT FINAL]
Posted on April 16, 2008Jennifer Conkling won in State v. Miller, No. 98,230 (Kan. App. April 11, 2008)(unpublished), reversing a Lyon County drug prosecution. Ms. Miller was a passenger in a car that was stopped for an expired tag. The car belonged to a "person of interest" in a drug investigation...
Lots of success in Shawnee County
Posted on April 11, 2008Here 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...
Jury finds against Sedgwick County jail
Posted on April 08, 2008Here is a Wichita Eagle article reporting that Mark Schoenhofer won a civil verdict against the Sedgwick County jail stemming from claims of excessive force. Are there other such verdicts against the Sedgwick County jail or other jails?
Judicial elections on the horizon
Posted on April 07, 2008Here is a Wichita Eagle article reporting on some of the filings for candidates who will be running for district court judge in Wichita this fall. I was sort of wondering if there was any buzz in Sedgwick County and apparently the answer is yes. The filing deadline is still a way off, so expect more candidates.
Twenty five minutes to acquittal
Posted on April 04, 2008Here is a Hutch News article reporting that Sarah McKinnon won an acquittal in a Reno County rape prosecution. The jury only took twenty-five minutes to reach a verdict after a two day trial. Judge Chambers had already granted a judgment of acquittal on an aggravated kidnapping charge...
Fourth Amendment claim is fundamental
Posted on April 04, 2008Shawn Minihan won in State v. Poulton, No. 95,353 (Kan. April 4, 2008), reversing and remanding for further hearings on Mr. Poulton's Fourth Amendment claims. There were two searches that were considered in this appeal. The COA had already reversed convictions stemming from one of the searches (here is my blog entry on that case)...
Murder conviction overturned based on lack of jurisdiction
Posted on April 03, 2008Lydia Krebs won in State v. Breedlove, No. 96,608 (Kan. March 28, 2008), vacating a Sedgwick County murder conviction based on lack of jurisdiction. In 1997, the state prosecuted Mr. Breedlove as an adult for felony murder for acts that occurred when Mr...
State really loses on interlocutory appeal
Posted on April 03, 2008William Mahoney won in State v. Mitchell, No. 98,512 (Kan. March 28, 2008), affirming Judge McNally's order refusing to admit evidence surrounding a prior adjudication in a Wyandotte County criminal possession of a firearm prosecution, which was the tail wagging a fiirst-degree murder prosecution...
Teen to be tried as juvenile
Posted on April 03, 2008Here is the Kansas City Star article reporting that Debra Vermillion won at a adult certification hearing in a Johnson County manslaughter prosecution. Judge Cameron order that the case will proceed in juvenile court, not adult district court.I'm frequently on the wrong side of these hearing (client certified for adult prosecution in murder cases)...
Can prior inconsistent statement be used as substantive evidence?
Posted on April 02, 2008I saw this entry over at Appellate Review noting a split of authority on whether prior inconsistent statements can be used as substantive evidence. This issue comes up periodically in Kansas and I even saw it just in the last few weeks on some discussion boards...
When you find the drugs, probably not a voluntary encounter anymore [NOT FINAL]
Posted on April 02, 2008Tom Lemon won in State v. Schultz, No. 98,727 (Kan. App. March 14, 2008)(unpublished), affirming Judge Braun's suppression order in a Shawnee County drug prosecution. The district court denied suppression of evidence and statements made before discovery of a large amount of marijuana, but suppressed statements made after the discovery based on lack of Miranda warnings...
No arrest, so no search incident [NOT FINAL]
Posted on April 02, 2008Jessica Glendening of the Johnson County Public Defender Office won in State v. Murphy, No. 99,058 (Kan. App. March 21, 2008)(unpublished), affirming Judge Anderson's suppression order in a Johnson County drug prosecution. The case turned on a detailed analysis of whether Mr...
KSC rejects John Doe warrant
Posted on April 02, 2008Rebecca Woodman won in State v. Belt, No. 95,575 (Kan. March 28, 2008), affirming dismissal orders in three counties involving "John Doe" warrants, warrants based on DNA. These orders ended sexual assult prosecutions in each county. Although the KSC accepted that such warrants could be valid, the "mere listing of DNA loci in the warrant or in a supporting affidavit cannot" identify a defendant with reasonable certainty:These cases from California and Wisconsin support the proposition that a warrant identifying the person to be arrested for a sexual offense by description of the person's unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional and statutory particularity requirements...
May KSC docket
Posted on April 01, 2008Here are the criminal cases on the KSC docket for May 12-15. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
New judge in Douglas County
Posted on April 01, 2008Here is the Governor's press release announcing her appointment of Peggy Carr Kittel to be district judge in Lawrence. Here is the Lawrence Journal-World article reporting on the appointment. She has been a pro tem district judge there for several years and fills the vacancy created by Stephen Six becoming Attorney General.
Tenth Circuit troubled by possible perjury
Posted on March 27, 2008In U.S. v. Rangel, the Tenth Circuit took the unusual step of abating an appeal from a New Mexico drug prosecution so that Mr. Rangel could proceed on a 2255 petition dealing with allegations of perjured testimony. The Court acknowledged that such a procedure is "extraordinary...
Bush issues pardon in Kansas case
Posted on March 26, 2008Here is a Topeka Capital-Journal article reporting that President Bush pardoned a White City farmer, who had pleaded guilty to federal fish and game violations in 1998 and received probation.There has sort of been a lot of recent comment on pardon practice recently around the blogosphere...
No attenuation [NOT FINAL]
Posted on March 24, 2008Charles O'Hara won in State v. Wagner, No. 97,643 (Kan. App. March 21, 2008), reversing some Lyon County burglary convictions based on Fourth Amendment violations. Officers had stopped a car without probable cause and later obtained some confessions to the burglaries...
Reduced charges at prelim
Posted on March 20, 2008Kay Huff and Kip Elliot had some success during preliminary hearing in a Douglas County homicide prosecution. Here is the Lawrence Journal-World article reporting that the two clients were facing intentional second-degree murder charges, that the state asked to bind over on felony murder, but that Judge Fairchild would only bind over on reckless second-degree murder.
No jury waiver [NOT FINAL]
Posted on March 07, 2008Washburn student intern Staci Lane and I won in State v. Neria, No. 97,050 (Kan. App. March 7, 2008), reversing a conviction in a Shawnee County drug prosecution. Although we lost on a suppression issue, the COA reversed the bench trial conviction due to failure to ever get a jury trial waiver on the record...
What's the hurry? [NOT FINAL]
Posted on March 07, 2008B. Joyce Yeager won in State v. Huntley, No. 97,338 (Kan. App. March 7, 2008), getting a new trial in a Wyandotte County rape and aggravaed criminal sodomy prosecution. The COA reversed because the district court refused to grant a continuance to allow hiring an expert to evaluation the child witness' testimony:With regard to the district court's stated ground for denying the continuance because the expert assistance or testimony would be inadmissible because such matters are things "jurors normally know" or "are common sense" and would be inadmissible, we respectfully disagree...
Grand jury thinks it shouldn't have been called
Posted on March 06, 2008Here is the Olathe News article reporting that when the grand jury called by petition in Johnson County to investigate possible abortion crimes returned no indictment, it also called for review of the statute by which it was called. In fact, there is no showing required to call a grand jury by petition under K...
Short list in Douglas County
Posted on March 03, 2008Here is news release announcing the short list to fill the district court vacancy created by Stephen Six becoming attorney general a month ago: Pro Tem Judge Peggy Carr Kittel; Topeka attorney Justice King; and legal counsel for the Board of Tax Appeals, Trevor Wolhford...
Another Pilshaw reversal [NOT FINAL]
Posted on March 03, 2008I 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...
Improper reference to homosexuality is prosecutorial misconduct [NOT FINAL]
Posted on February 29, 2008Rachel Pickering won in State v. Bloomquist, No. 95,995 (Kan. App. Feb. 29, 2008), getting a new trial in a Anderson County aggravated indecent liberties/criminal sodomy prosecution involving 78-counts. The COA reversed for cumulative error, but primarily focused on improper argument regarding Mr...
Improper restriction on cross-exam violates Confrontation Clause [NOT FINAL]
Posted on February 29, 2008Reid Nelson from the Capital and Conflicts Appeals Office won in State v. Darrell Jackson, No. 94,578 (Kan. App. Feb. 29, 2008), obtaining a new trial in a Harvey County criminal sodomy/aggravated indecent liberties prosecution. During trial, the district court refused to allow the defense to cross-examine regarding the vicitim's sexual history...
IAC finding affirmed [NOT FINAL]
Posted on February 29, 2008Linda Barnes-Pointer won in McHenry v. State, No. 97,202 (Kan. App. Feb. 29, 2008), affirming Judge Tuggle's grant of a K.S.A. 60-1507 motion and ordering a new trial in a Mitchell County rape/indecent liberties/sodomy case. The COA applied the same standard as it would to review of a denial of habeas relief--substantial competent evidence--and held that Judge Tuggle's findings regarding defense counsel's complete failure to investigate the state's witnesses or witnesses named by Mr...
Misdemeanor verdict in manslaughter prosecution
Posted on February 29, 2008Here is a Topeka Capital-Journal article reporting that Michael Francis won a vehicular homicide verdict in a Shawnee County DUI-Manslaughter prosecution.
PD re-elected to district nominating commission
Posted on February 25, 2008Here is the court's press release announcing that ADO Janine Cox won re-election to the Douglas County (Seventh Judicial District) Judicial Nominating Commission. This will be her second term. My only regret is that I live in the wrong county and therefore couldn't vote for her!
Commission recommends Pilshaw's censure
Posted on February 23, 2008Here is the Wichita Eagle article reporting the the Commission on Judicial Qualifiactions has recommended public censure for Judge Pilshaw for misconduct stemming from a mur$der case. The article includes a link to a copy of the Commission's findings and conclusions...
Evidence of bias [NOT FINAL]
Posted on February 22, 2008Rick Kittel and KU student Amy Hall won in State v. Scott, No. 96,879 (Kan. App. Feb. 22, 2008), gettting a new trial in an Atchison County prosecution for sale within 1000' of a school. Although the COA found sufficient evidence to support a conviction, the COA held that the district court improperly excluded some defense testimony:Scott contends that the trial court erred when it refused to admit testimony at trial that Soden [state's witness] was being criminally investigated for forging Scott's checks...
Improper pat-down [NOT FINAL]
Posted on February 22, 2008Christina Waugh won in State v. Carson, No. 97,185 (Kan. App. Feb. 22, 2008)(unpublished), reversing a Lyon County drug conviction on Fourth Amendment grounds. Although the COA rejected claims regarding an improper car stop, improperly extended stop, and involuntary search of the vehicle, the COA held that the officer lacked reasonable suspicion to conduct a pat-down:In Carson's case, it is undisputed that the stop took place in warm weather,which meant that Carson was not wearing bulky clothing which could have concealed a weapon...
Lesser verdict in Lawrence
Posted on February 12, 2008Here is a Lawrence Journal-World article reporting that Tom Bath won a misdemeanor verdict in a Douglas County DUI-Manslaughter and Leaving the Scene of a Fatality Accident prosecution.
Come and go at the ADO
Posted on February 11, 2008Jennifer Conkling, who has been at the ADO for a couple of years now, has decided to go out into the real world. She is going to work with Carol R. Bonebrake here in Topeka. That firm does a lot of employment law and represents several small hospitals...
Exceeded scope of search warrant
Posted on February 07, 2008Thanks to Kansas Federal Defender, who blogged (here) on United States v. Young, No. 07-4060 (10th Cir. Feb. 5, 2008), reversing a Utah drug conviction on Fourth Amendment grounds. See that blog for details. A nice case for both scope of search warrant analysis and good-faith exception analysis.
Kansas makes SL & P again
Posted on February 07, 2008Here is a link to a recent Sentencing Law and Policy Blog entry where Professor Berman highlights a Kansas City Star article reporting on reduced recidivism rates in Kansas and possible links to recent legislation targeted at reentering persons. I have been in meetings occassionally with DOC and CC officers and have been impressed with their interest in actually helping people not reoffend...
Sixth Amendment violation requires suppression of statements
Posted on February 01, 2008Matt Edge won in State v. Ventris, No. 94,002 (Kan. Feb. 1, 2008), obtaining a new trial in a Montgomery County agg robbery prosecution. The primary issue stemmed from law enforcement officers placing a snitch in a cell with Mr. Ventris who surreptitiously obtained statements all after Mr...
Enhanced sentence must be based on prior predicate offense
Posted on February 01, 2008Michael Holland and Michael Holland II won in State v. Ruiz-Reyes, No. 95,056 (Kan. Feb. 1, 2008), getting a reduced sentence on a Reno County possession with intent to sell conviction. The COA had held that before a drug conviction could be enhanced based on a prior conviction, the prior conviction had to be entered before the instant offense (in contrast to the way that criminal history works)...
Competency to be extradited
Posted on February 01, 2008Ron Evans from the Death Penalty Defense Unit won in State v. Patton, No. 98,470 (Kan. Feb. 1, 2008), reversing a Shawnee County district court order authorizing Mr. Patton's extradition to Florida to face capital murder charges. The main issue is whether there is any requirement that the subject of an extradition request be competent to help defend against that extradition...
Improper joinder [NOT FINAL]
Posted on February 01, 2008Janine Cox won in State v. Coburn, No. 96,210 (Kan. App. Feb. 1, 2008), obtaining a second new trial in a Wyandotte County aggravated indecent liberties with a child prosecution. The COA majority held that the state improperly tried unrelated offenses together in the same trial:Under K...
Miranda suppression affirmed [NOT FINAL]
Posted on January 30, 2008Michael Robinson won in State v. Allison, No. 98,341 (Kan. App. Jan. 18, 2008)(unpublished), affirming Judge Anderson's suppression of statements in a Harvey County drug prosecution. The COA noted that the only issue was whether questioning of persons detained after a search was "interrogation" for Miranda purposes:Applying [Rhode Island v...
Probationers still have Fourth Amendment rights [NOT FINAL]
Posted on January 29, 2008Theresa Barr (former ADO) won in State v. Montgomery, No. 97,340 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Riley County possession of mephedrine conviction. The COA summarized the facts as follows:Montgomery agreed to enter a detoxification program as part of her probation program with Riley County Community Corrections (RCCC)...
Improperly extended stop [NOT FINAL]
Posted on January 28, 2008I, along with Washburn student intern Hansel Cordeiro, won in State v. Fitzpatrick, No. 96,702 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Johnson County drug conviction. There were lots of claims regarding several stages of a car stop and resulting search of the back-seat passenger...
Manufacture sentencing win
Posted on January 24, 2008I, along with student intern Melissa Schoen, won a partial victory in State v. Spangler, No. 96,326 (Kan. App. Dec. 21, 2007). reversing one conspiracy count and getting a remand for resentencing on the manufacture count. This sentencing issue involves a fairly new argument (post-McAdam) regarding manufacture sentencing...
New AG
Posted on January 21, 2008Here is the Governor's press release announcing the appointment of Judge Stephen Six from Lawrence to fill the upcoming Attorney General vacancy. Of course, there has been lots of coverage of this story from all over the state: here, here, and here is the Topeka Capital-Journal coverage; here, and here is local coverage from the Lawrence Journal-World; here and here is coverage from the Wichita Eagle...
Recent SCOTUS filing
Posted on January 20, 2008Rachel Pickering and I recently filed a cert petition in State v. Birth, a COA case holding that Confrontation can be waived by an attorney's "opening the door" to introduction of out-of-court statements. The SCOTUS just took a case on "forfeiture by wrong doing," (here is the Confrontation Blog coverage) which may give us some insight into the interplay between the rules of evidence/procedure and the right to Confrontation.
Lesser should have been given [NOT FINAL]
Posted on January 19, 2008Rick Kittel won in State v. Alberty, No. 96,957 (Kan. App. Dec. 21, 2007)(unpublished), obtaining a new trial in a Wyandotte County aggravated battery prosecution. The COA noted the confusing nature of the charging history as a contributor to the error:There was some confusion surrounding the underlying aggravated battery charge in this case...
Insufficient evidence of constructive possession [NOT FINAL]
Posted on January 19, 2008Charles O'Hara won in State v. Navarro, No. 97,428 (Kan. App. Dec, 21, 2007)(unpublished), reversing a Seward County possession with intent to sell conviction on sufficiency grounds:Viewing the evidence in the light most favorable to the State, it seems likely that Navarro had some idea of what was going on, as he legally owned the property; a scale was found in plain view in the shop; it was obviously a large scale drug operation based on the amount of marijuana found; the only driveway to the shop went by Navarro's residence; the shop was nearby his residence; all of the lights were on and the door was open to the shop in the middle of the night; and there was a large amount of cash in his bedroom...
Bad search warrant [NOT FINAL]
Posted on January 19, 2008Carl F.A. Maughn won in State v. Baumfalk, No. 96,893 (Kan. App. Dec. 21, 2007)(unpublished), reversing a Sherman County drug conviction. The COA held that the evidence presented to the distirct court was clearly insufficient to constitute probable cause:First, under the district court's theory, a nexus between the illegal activities and the suspect's residence would be established in every case so long as the suspect frequented and used his residence...
March KSC docket
Posted on January 16, 2008Here are the criminal cases on the KSC docket for March 24-27. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Where's the emergency? [NOT FINAL]
Posted on January 16, 2008Steven Staker of the Junction City Public Defender Office won in State v. Jeffery, No. 97,251 (Kan. App. Jan. 11, 2008), reversing a Geary County drug conviction. The prosecution had claimed that the search in this case was a valid exercise of the emergency aid doctrine exception...
Firearm conviction reversed
Posted on January 16, 2008Charles Dedmon (former-ADO) and David Phillips of the Kansas City Federal Public Defender Office won in U.S. v. Hill, No. 07-3034 (10th Cir. January 16, 2008), reversing a Kansas firearm conviction. The question was whether the defendant was ineligible to possess a firearm because of a previous Kansas conviction...
New COA judge
Posted on January 14, 2008Here is the Governor's press release announcing her appointment of Melissa Taylor Standridge to the newly-created thirteenth position on the COA.
Hard-fifty cert petition denied, again.
Posted on January 10, 2008The SCOTUS denied Sarah Johnson's cert petition in Johnson v. Kansas, which sought, in part, to apply Apprendi to minimum sentences (i.e. reverse Harris v. U.S., 536 U.S. 545 (2002)). Here is the SCOTUS order. The SCOTUS had ordered the state to respond and had set the matter over for a second conference date, but denied cert on Monday...
Twenty minutes to acquittal
Posted on January 10, 2008Here is a Hutch News article reporting that Greg Bell won an acquittal in a Reno County aggravated assault prosecution. Greg argued that the prosecution provided no physical corroborating evidence, resulting in a "he-said, she-said" situation, which does not prove a case beyond a reasonable doubt...
Bad diversion agreement [NOT FINAL]
Posted on December 27, 2007Ryan Eddinger won in State v. Moses, No. 96,897 (Kan. App. Dec. 21, 2007), reversing a Douglas County forgery conviction and remanding for further proceedings. Moses had entered into a diversion agreement and, after violating the terms of the agreement, was convicted by trial on stipulated facts...
Miranda in Tenth Circuit
Posted on December 21, 2007J. Lance Hopkins won in U.S. v. Revels, No. 06-5223 (10th Cir. Dec. 20, 2007), successfully defending an Oklahoma federal district court's Miranda suppression order in a government interlocutlory appeal. Here is coverage from Decision of the Day Blog...
Speedy trial reversal in Tenth Circuit
Posted on December 21, 2007Fred Lynn won in U.S. v. Williams, No. 06-5036 (10th Cir. Dec. 20, 2007), reversing an Oklahoma federal drug and firearm convictions based on a violation of the Speedy Trial Act:Even assuming that at least some of the serious deficiencies in the district court?s three continuance orders could be ameliorated by subsequent on-the record findings, the court?s comments here are not up to the task...
Consent not voluntary [NOT FINAL]
Posted on December 20, 2007David Harger won in State v. Christner, No. 98,065 (Kan. App. Dec. 7, 2007) (unpublished), affirming Judge Dickinson's suppression order in a Harvey County drug prosecution. This was another in a long, back-and-forth series of decisions regarding whether a person would feel free to leave during a traffic stop...
No infraction, no legal stop
Posted on December 20, 2007Mike Sheahon won in State v. Ryan, No. 98,027 (Kan. App. Nov. 21, 2007) (unpublished), affirming Judge Hebert's suppression order in a Saline County drug prosecution. In a pretty short opinion, the COA notes that there was disputed evidence whether the pretextual infraction occurred at all:Here, the trial court's ruling that the State failed to meet its burden could be construed as a negative finding of fact...
In handcuffs? Being taken to the police station? You're under arrest. [NOT FINAL]
Posted on December 18, 2007Daniel Walter won in City of Norton v. Wonderly, No. 97,889 (Kan. App. Dec. 14, 2007), reversing a Norton County DUI conviction on Fourth Amendment grounds. The COA held that that handcuffing and transporting the suspect constitutes arrest:we conclude that Wonderly was under arrest when Morel, without seeking Wonderly's consent, transported Wonderly in handcuffs to the sheriff's office to perform field sobriety tests...
New district judge in Salina
Posted on December 14, 2007Here is the Governor's press release announcing the appointment of Patrick H. Thompson as a District Judge in the 28th Judicial District covering Saline and Ottawa Counties. Here is the Salina Journal coverage of the appointment.
Twenty minutes to acquittal
Posted on December 13, 2007Here is a Wichita Eagle article reporting on acquittal of three clients in municipal criminal trespassing cases involving the home of the former city manager. Kudos to Steve Mank, Charles O'Hara, and John Rapp for getting fair trials for these clients...
Acquittal in rape case
Posted on December 13, 2007Wayne Tate won an acquittal in a fairly high profile Grant County rape case involving a Ulysses High School teacher and coach. Here is the Hutch News article reporting on the acquittal.
KSC reverses bartender's involuntary manslaughter conviction
Posted on December 07, 2007Jennifer Conkling won in State v. Scott, No. 95,760 (Kan. Dec. 7, 2007), reversing a Reno County conviction for involuntary manslaughter against a bartender who served a drink called "The Stoplight." The KSC reviewed the Kansas involuntary manslaughter statute and concluded that "we have no hesitation in holding the State must prove that a defendant's behavior was the proximate cause of the victim's death under K...
Miranda suppression affirmed
Posted on December 07, 2007Stephen Atherton won in State v. Bordeaux, No. 98,161 (Kan. App. Dec. 7, 2007), affirming Judge Wheeler's suppression of statements under Miranda. Here is the COA's summary of the case:Anthony Bordeaux was ordered at gunpoint to come out of an open garden shed in which he was hiding...
Twenty years for picking up ammo on Halloween
Posted on December 07, 2007The Tenth Circuit affirmed a felon in possession conviction in U.S. v. Baker, No. 07-3002 (10th Cir. Dec. 7, 2007), rejecting the defendant's request for an innocent possession instruction. Here is the take on the record by Judge Holloway in his dissent:on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes...
Update on Fourth Amendment compilation
Posted on December 04, 2007Thanks to the Tenth Circuit Blog who noted that the Oregon Federal Public Defender has posted (here) its updated Fourth Amendment compilation. It presents the subject from a defense perspective and is quite useful both for the new and experience practitioner...
January KSC docket
Posted on November 30, 2007Here are the criminal cases on the KSC docket for January 28-31. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...
Search exceeded scope [NOT FINAL]
Posted on November 30, 2007Carl Folsom won today in State v. Warren, No. 94,694 (Kan. App. Nov. 30, 2007), reversing Johnson County burglary and theft convictions with an order to suppress evidence obtained from search of a car. After deciding to impound a car, the driver asked to retrieve some personal items, which the officer would allow, but only after a search of the car for weapons...
Prosecutorial musical chairs
Posted on November 29, 2007Here is a Parsons Sun article reporting on the selection of John Bullard, the current Labette County Attorney, to fill the vacancy created by the resignation of the Cherokee County Attorney. So I guess now there will soon be a vacancy in Labette County.
Article on next week's Fourth Amendment cases
Posted on November 29, 2007Here is a Lawrence Journal-World article reporting on two drug cases being argued before the KSC next week. I blogged about these cases here and here. It's interesting to see the public comment/perspective on these cases. And here is my previous blog setting out next week's KSC criminal cases.
Judicial evaluations
Posted on November 26, 2007Here is a Topeka Capital-Journal article reporting on the newly created Commission on Judicial Performance. It will be interesting to see how this process works and whether it makes any difference with voters. Here is a Lawrence Journal-World article on the same subject.
No state appeal [NOT FINAL]
Posted on November 21, 2007Paul Oller won in State v. Vasquez, No. 96,690 (Kan. App. Nov. 21, 2007), obtaining dismissal of the state's appeal from the district court's denial of the state's motion to hold a defendant in indirect contempt of court after failing to pay restitution...
Prior use/possession not relevant in possession case [NOT FINAL]
Posted on November 21, 2007Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. App. Nov. 21, 2007), getting a new trial in a McPherson County drug prosecution. This is great common-sense application of K.S.A. 60-455 to a situation we see too frequently--admission of prior possession convictions in subsequent possession prosecutions:Furthermore, the prior crime evidence of smoking marijuana was not so relevant as to show some material or logical connection between it and the charged crimes...
COA short list
Posted on November 16, 2007Here is the press release announcing the three candidates for the COA opening stemming from expansion of the court. The three nominees are: Ward Loyd from Garden City (former chair of the House Corrections and Juvenile Justice Committee), Timothy Moore, from Morris, Laing in Wichita; and Melissa Taylor Standridge, who works as chambers clerk for U...
But why can't you instruct on the lesser?
Posted on November 09, 2007I saw this article in the latest issue of NACDL's Champion magazine entitled "Defense Theory Instruction on Non-Included Lesser Offenses." It sort of struck a nerve because several of us have wondered about pursuing something along this line for non-included offenses in Kansas...
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