Public Defense

Article on death penalty litigation in Kansas

Posted on April 20, 2009
Here 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, 2009
The 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, 2009
Here 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, 2009
Here 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...

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Improperly expanded stop [NOT FINAL]

Posted on April 11, 2009
Sam 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 April 3, 2009)(unpublished), obtaining reversal of a Harvey County drug conviction.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, 2009
Pat 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 March 4, 2009)(unpublished), reversing a Crawford County manufacture conviction and obtaining a new trial on conspiracy and possession conviction.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, 2009
Here 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, 2009
Charles 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, 2009
Rick 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, 2009
Rick 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, 2009
Here 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, 2009
Recently, 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, 2009
I 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, 2009
Washburn 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, 2009
For 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, 2009
Washburn 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...

Four days of testimony; 30 minutes to acquittal

Posted on March 05, 2009

Not guilty in Topeka Jessica's Law case

Posted on March 03, 2009

Thinking about instructions

Posted on March 03, 2009

Prosecutor cannot urge uncharged charges as evidence

Posted on March 02, 2009

No showing of constructive possession [NOT FINAL]

Posted on February 26, 2009

Coach not guilty

Posted on February 25, 2009
Here 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, 2009
Here 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...

No need for welfare check [NOT FINAL]

Posted on February 16, 2009

Don't confuse premeditation with foreseeability

Posted on February 14, 2009
Michelle 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, 2009
Patrick 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, 2009
Here 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, 2009
Here 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, 2009
Sarah 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, 2009
Reid 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...

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