Public Defense

Kansas defender facing tough times in Rwanda

Posted on June 08, 2010
I blogged (here) about Kurt Kerns and his work on a genocide trial a few weeks ago.Kurt was back in Africa and this Wichita Eagle article provides some of the harrowing details of what Kurt is facing. Good work by Dan Monnat and KBA president Tim O'Brien to help keep Kurt from being arrested for criticising the police in Rwanda.

Petitions for Review granted May, 2010

Posted on June 07, 2010
On May, 18, 2010, the KSC granted several defendants' petitions for review:State v. Benson, No. 97905 (Sept. 26, 2008) (unpublished)Issues presented:1. Whether right to confront witnesses was violated when the certification of the calibration of the Intoxilyzer 5000 was admitted into evidence2...

Lack of unanimity

Posted on June 04, 2010
Michelle Davis won in State v. Allen, No. 99,014 (Kan. June 4, 2010), obtaining a new trial in a Seward County possession with intent prosecution for failure to give a unanimity instruction. The KSC summarized the procedural setting as follows:The State did not specify which cocaine?that in Allen's pocket, or that in the upstairs bedroom?served as the basis for the possession element of possession with intent to sell...

Not every lie to the police is obstruction of official duty

Posted on June 04, 2010
Jennifer Anne Passiglia won in State v. Sheldon, No. 98,160 (Kan. May 21, 2010), reversing a Cowley County conviction for felony obstruction of official duty. In the COA, Passiglia also earned reversals of three false information convictions, and the KSC did not review those reversals...

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It's almost District Judge election season

Posted on June 03, 2010
Here is a Wichita Eagle article reporting on some of the filings for contested judicial elections in and around Sedgwick County. According to the article, there may not be a lot of election action occurring in Wichita this year.

Another reversal for deadlocked jury instruction [NOT FINAL]

Posted on June 02, 2010
Rick Kittel and KU Defender Project student Kendra Oakes won in State v. Baughman, No. 100,604 (Kan. App. May 28, 2010)(unpublished), obtaining a new trial in a Pottawatomie County aggravated indecent liberties prosecution. This was another win for Rick on the so-called Allen instruction...

Recent cert petition

Posted on June 02, 2010
Here is a cert petition I am filing today from the decision in State v. Pressley, No. 98,823 (March 10, 2010), where the KSC held that the protection of the Sixth Amendment Speedy Trial Clause does not extend to sentencing. This is an issue on which there is a pretty big split of authority with no direct and controlling SCOTUS precedent, so it makes a pretty good cert petition...

Presentence motion to withdraw does not require same showing as postsentence

Posted on June 01, 2010
Carl Folsom won in State v. Aguilar, No. 95,249 (Kan. May 21, 2010), getting withdrawal of a plea in a Wyandotte County constructive possession case. This case has been in the system quite a while. Carl filed the opening brief in March 2006, lost the case in the COA in February 2007, got the PR granted in June 2007, argued the case at the KSC in December 2007 and then, a two-and-a-half-year wait!Ms...

Improper waiver of 12-person jury case finally decided

Posted on May 26, 2010
Washburn student intern Cory Scarpella and I won in State v. Raiburn, No. 95,908 (Kan. App. Apr. 22, 2010)(unpublished), obtaining a new trial in an Elk County possession of marijuana prosecution. This case has had a somewhat long and tortuous procedural history on appeal...

Acquittal in Topeka murder prosecution

Posted on May 26, 2010
Here is a Topeka Capital-Journal article reporting that Tom Lemon won an acquittal in a Shawnee County second-degree murder prosecution.

Defenders apply for COA position

Posted on May 20, 2010
Here is the news release announcing the candidates who have applied for the COA vacancy created by the recent death of Hon. Jerry G. Elliott. As you can see, the list includes Randall Hodgkinson (of this blog) and Michael Whalen, both criminal defense attorneys who have experience in the appellate courts...

More than 20 years for simple possession is cruel and unusual

Posted on May 19, 2010
In honor of the recent SCOTUS case prohibiting LWOP sentences for juveniles, blogged about at Sentencing Law and Policy here, I thought I would blog about a former client that got Eighth Amendment relief this spring.In Graham v. State, Judge Hornbaker discharged Mr...

New article provides interesting attack on prior drug conviction enhancements in federal sentencing

Posted on May 11, 2010
Sarah French Russell, a former Assistant Federal Public Defender for the District of Connecticut, has authored a new article titled "Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing." The article discusses why enhancements based on prior drug convictions are not really sound public policy (providing ammunition for convincing the court to disregard certain enhancements under the USSG), but it also provides details on how attorneys in the District of Connecticut have used Shepard v...

Iowa has a state constitution

Posted on May 06, 2010
Hat tip to Sarah Johnson, who forward info about State v. Cox, No. 07?2083 (Iowa April 30, 2010), where the Iowa Supreme Court holds that a state statute that allows introduction of propensity evidence in sex offense prosections violates the state constitution's due process clause...

Trial counsel should have moved to suppress statements [NOT FINAL]

Posted on May 03, 2010
Rachel Pickering won in State v. Bowlin, No. 99,213 (Kan. App. April 30, 2010) obtaining a new trial in a Wyandotte County involuntary manslaughter prosecution. The prosecution stems from the death of an 8-year old girl in a house fire that investigators thought Mr...

Hendrix fix goes into effect tomorrow

Posted on April 28, 2010
As some of you may remember, last fall, the KSC decided State v. Hendrix, No. 97,323 (Kan. Oct. 23, 2009), holding that a defendant is only entitled to a self-defense instruction (or defense of another instruction) if he or she actually uses physical force, not if he or she only threatens physical force...

Acquittal in Hutch

Posted on April 28, 2010
Here is a Hutchinson News article reporting that Alice Osburn won acquittals in State v. Pederson, terminating a Reno County rape/criminal sodomy prosecution.

Petitions for Review granted March/April 2010

Posted on April 27, 2010
The KSC recently granted defendant's petitions for review in the following cases:State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (May 22, 2009) Issues presented: 1. Whether defendant's Fourth Amendment rights were violated by pat-down search. 2...

Acquittal in Google

Posted on April 23, 2010
Here is a Topeka Capital-Journal article reporting that Julia Spainhour and Joe Huerter won acquittals for their respective clients in State v. Buck and State v. Lows, ending the Shawnee County rape/agg criminal sodomy prosecutions.

Denial of Right to Self-Representation at Preliminary Hearing is Structural Error

Posted on April 18, 2010
Lydia Krebs won in State v. Jones, No. 98,571 (Kan. April 15, 2010), reversing Wyandotte County convictions for aggravated kidnapping and rape. The KSC reversed the convictions because the district court denied Jones the right to self-represenation at the preliminary hearing in the case...

No state appeal of remand finding of IAC [NOT FINAL]

Posted on April 16, 2010
Gerald Wells and Kevin Shepherd won in State v. Elnicki, No. 96,987 (April 8, 2010), obtaining dismissal of a state's attempt to appeal from Judge Dowd's finding of ineffective assistance of counsel on remand during direct appeal from a Shawnee County rape/agg criminal sodomy conviction...

State fails to show grounds for interlocutory appeal

Posted on April 16, 2010
Razmi Tahirkheli won in State v. Sales, No. 102,578 (Jan. 29, 2010), obtaining dismissal of a state appeal of Judge Peterson's order excluding some expert testimony in a Seward County agg criminal sodomy prosecution. After conviction, the district court determined that it had erroneously allowed in some testimony regarding delayed reporting and granted a new trial...

Nice article on Kansas defender preparing for an unusual trial

Posted on April 13, 2010
Here is a Wichita Eagle article reporting on some of the challenges facing Kurt Kerns in his defense of a person charged and being tried in Wichita with genocide in Rwanda. Trekiing across some places in Africa would be pretty intimidating!

If you get your client deported . . . , you might be ineffective

Posted on April 02, 2010
On March 31, 2010, the US Supreme Court issued the opinion in Padilla v. Kentucky, placing a duty upon defense counsel to inform noncitizen clients of the negative immigration consequences of pending criminal charges (before pleading the clients out to those charges)...

You can impeach with prior inconsistent statements, even if witness does not remember [NOT FINAL]

Posted on April 02, 2010
Rick Kittel won in State v. Stinson, No. 100,361 (Kan. App. March 26, 2010), obtaining a new trial in a Wyandotte County agg robbery/agg battery prosecution. The COA noted that the complaining witness' credibility was key to this case. The trial judge held in one instance that because the witness entirely denied making the a prior statement, defense counsel could not impeach with a prior inconsistent statement; in another instance, the trial judge refused to allow defense counsel to attempt to refresh the witness' recollection by showing him the prior statements when the witness indicated that he did not remember making the statement...

Massachusetts has a state constitution

Posted on March 31, 2010
In State v. Porter P, No. SJC-10383 (Mass. March 11, 2010), the Massachusetts Supreme Judicial Court considered the question of whether a landlord or other nonresident third-party can consent to a search and applied its state constitution to hold that such consent is only valid if officers see written documentation of such authority:We understand that the police need clear guidance as to who has common authority over a residence and therefore who is entitled to give actual consent, because, as here, they rely on such consent in deciding to conduct a warrantless search, as opposed to securing the residence and applying for a search warrant...

Then don't take me to jail . . .

Posted on March 26, 2010
Thanks to How Appealing and Sentencing Law and Policy for highlighting State v. Eaton, a Washington Supreme Court case on whether you can enhance a sentence for possession based on possession within a jail when the cops find drugs on your person after arresting you and taking you directly to jail...

May 2010 KSC docket

Posted on March 25, 2010
Here are the criminal cases on the KSC docket for May 3-6, 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...

Dismissal of Lawrence vehicular homicide charge

Posted on March 24, 2010
Barbara Kay Huff won a dismissal of a vehicular homicide charge in State v. Peng, a Douglas County prosecution. The State had claimed that Mr. Peng killed a man with his vehicle after failing to properly clear his windshield of frost. Judge Sally Pokorny ruled there was insufficient evidence to support the crime...

Gavin Scott gets life

Posted on March 24, 2010
Jeff Wicks won relief today for Gavin Scott, who was facing a possible death sentence for a conviction of capital murder. Mr. Scott had previously been sentenced to death (twice actually), but in Mr. Scott's direct appeal, the KSC reversed Mr. Scott's most recent death sentence based on erroneous jury instructions relating to mitigating evidence (blogged about here)...

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