Public Defense

Iowa has a state constitution

Posted on March 03, 2011
The Iowa Supreme Court became the first state supreme court to reject the wholesale stripping of privacy rights for parollees, as described by the SCOTUS in Samson v. California, 547 U.S. 843 (2006). Relying on its state constitution, the Iowa Supreme Court, in State v...

New Mexico has a state constitution

Posted on March 03, 2011
The New Mexico Supreme Court, in State v. Levya, No. 32,067 (N.M. Feb. 17, 2011), applied its state constitutional provisions prohibiting unreasonable searches and seizures to clarify that officers conducting a legitimate traffic stop should be limited to questioning related to that traffic stop...

FSA applied retroactively

Posted on March 01, 2011
Kirk Redmond won a sentencing victory today in in U.S. v. Terez Warren, Case No. 10-20125-01 (D. Kan.), when Judge Vratil held that the Fair Sentencing Act (modifying the mandatory minimums to reduce the sentencing disparity between crack an powder cocaine) applied to Mr...

Defense attorney's job is to defend

Posted on February 25, 2011
Meryl Carver-Allmond won in State v. Charles Smith, No. 99,655 (Kan. Feb. 11, 2011), obtaining a new trial in a Douglas County robbery conviction. We blogged about this case here when Meryl won in the COA. The state filed a PR, which the KSC granted, ending in the same result--a new trial:However, the attorney's presentation of the withdrawal motion suggests that the problem may not have been based upon the falsity of the facts Smith wanted introduced...

To access this complete feed in the blog feed reader login or register for free.

State failed to preserve departure notice issue

Posted on February 24, 2011
Janine Cox won in State v. Washington, No. 103,850 (Kan. App. Feb. 11, 2011)(unpublished), affirming Judge Hampton's downward durational departure sentence in a Ford County possession case. Mr. Washington's presumptive prison sentence was between 28 and 32 months...

Nice article on innocence investigation

Posted on February 15, 2011
Here is an article titled "Is Convicted Murderer Really a Victim?" reporting on the Rhodes case, which has been investigated by Ron Sylvester from the Wichita Eagle and Rebecca Woodman and her wrongful convictions class at Washburn Law School. (Here is a previous blog entry on the team-up)...

I beg your pardon....

Posted on February 08, 2011
Alice White and Jean Phillips of the KU Project for Innocence & Post-Conviction Remedies (formerly known as the Defender Project) won a pardon last month for Frederick Umoja, who was convicted of third-degree robbery in 1969. The pardon was issued by Gov...

No proper extension = no jurisdiction to revoke probation [NOT FINAL]

Posted on January 31, 2011
Lydia Krebs won in State v. Hoffman, No. 103,133 (Kan. App. Jan. 28, 2011), reversing a Reno County probation revocation. The issue arose because of an improper extension of Mr. Hoffman's probation term:the order at issue in this case did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended...

Still reversed [NOT FINAL]

Posted on January 31, 2011
Several months ago we blogged (here) about Michael Whalen's win in a sexually violent predator act prosecution. As reported there, the COA expressed harsh concern for what appeared, based on the state of the record at that time, to be the state using manufactured evidence...

No safety concerns

Posted on January 25, 2011
Washburn student intern Joshua Mikkelsen and I won in State v. List, No. 102,851 (Kan. App. Dec. 23, 2010)(unpublished), reversing a Johnson County drug conviction. The COA agreed that law enforcement officers violated the Fourth Amendment when they detained Ms...

Date of prior controls person/nonperson decision

Posted on January 22, 2011
Ryan Eddinger won in State v. McKinney, No. 102,906 (Kan. App. Dec. 17, 2010), obtaining a new sentencing hearing in a Leavenworth County failure to register prosecution. The issue involved whether a 2002 Oklahoma conviction for failure to register should be scored as a person or nonperson felony for the current offense...

Call for backup matters

Posted on January 21, 2011
Carl Folsom won in State v. Thomas, No. 98,123 (Kan. Jan. 21, 2011), reversing a Geary County possession conviction on Fourth Amendment grounds. After a brief encounter with Ms. Thomas appeared to be over, an officer asked if he could ask her a few more questions, resulting in an extended encounter, which included calling for back up...

Kansas Defender applicant for COA

Posted on January 19, 2011
Here is a press release stating that 19 attorneys, including 6 judges, have applied for the vacant position on the Kansas Court of Appeals. As you can see, Randall Hodgkinson, co-author of this blog (and gifted appellate advocate), is an applicant. The position opened up when the Honorable Nancy Moritz Caplinger was appointed to the Supreme Court...

Finding of no possession upheld [NOT FINAL]

Posted on January 14, 2011
Janine Cox won in State v. Crawford, No. 103,524 (Kan. App. Jan. 7, 2011)(unpublished), affirming Judge Sachse's dismissal of a Franklin County possession with intent to sell prosecution at preliminary hearing. The COA reviewed the record and law regarding constructive possession cases and held that the district court correctly dismissed the prosecution:we turn to the evidence to determine whether there are incriminating circumstances linking Crawford to the drugs besides her mere presence at the scene...

Arnold-Burger appointed to COA

Posted on January 09, 2011
Here is a press release (no longer available on line) announcing Governor Parkinson's appointment of Overland Park Municipal Judge Karen Arnold-Burger to the Kansas Court of Appeals, filling the vacancy created by Chief Judge Rulon's retirement:Governor Mark Parkinson has appointed Karen Arnold-Burger of Overland Park as Judge of the Kansas Court of Appeals...

Arnold-Burger appointed to COA

Posted on January 09, 2011
Here are some exceprts from a press release announcing that Governor Parkinson appointed Overland Park Municipal Judge Karen Arnold-Burger to fill the vacancy created by Chief Judge Rulon's retirement:Governor Mark Parkinson has appointed Karen Arnold-Burger of Overland Park as Judge of the Kansas Court of Appeals...

Parental Discipline a Common Law Defense in Kansas

Posted on December 30, 2010
David Magariel won in State v. Wade, No. 102,433 (December 30, 2010), reversing a Johnson County conviction for misdemeanor battery. The court held that parental discipline is a common law affirmative defense in Kansas. The court reversed the defendant's conviction because the district court's failure to instruct the jury on this affirmative defense denied the defendant due process of the law...

Another downward departure upheld [NOT FINAL]

Posted on December 21, 2010
Janine Cox won in State v. Craver, No. 103,048 (Kan. App. Dec. 10, 2010), affirming Judge Chamber's imposition of a downward dispositional departure in three drug cases. The COA seemed somewhat unimpressed with the state's argument on appeal:On appeal, the State only challenges the district court's first reason for the dispositional departure, i...

Acquittal in Reno County murder case

Posted on December 18, 2010
Here is a Hutch News article reporting that Alice Osburn won an acquittal on first-degree murder charges in State v. Delacruz. The article reports that the jury convicted Mr. Delacruz of an unrelated agg robbery.

Huff named judge in Douglas County

Posted on December 17, 2010
Here is an article from the LJWorld stating that Barbara Kay Huff will be the newest judge in Douglas County. Kay has been a criminal defense lawyer for a number of years, including stops at the Johnson County PD's Office, the Appellate Defender Office, and as a Clinical Professor at KU Law...

New Hampshire has a state constitution

Posted on December 14, 2010
The New Hampshire Supreme Court held in State v. Boutin, No. 2008-813 (N.H. 11/24/2010), that its state constitution puts specific restrictions on officers conducting community caretaking stops: The defendant argues that the seizure violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution...

January 2011 KSC docket

Posted on December 09, 2010
Here are the criminal cases on the KSC docket for January 24-28, 2011. 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...

Suppression order

Posted on December 06, 2010
Sal Intagliata won a suppression order in State v. Holton, a Sedgwick County murder prosecution. According to this Wichita Eagle article, Judge Kaufman held that officers illegally entered a residence without a warrant or consent. Judge Kaufman also suppressed several statements taken from Holton later.

Local blawg in ABA Journal top 100

Posted on December 01, 2010
Glad to see Ron Sylvester and his blawg What the Judge Ate for Breakfast was included in this year's ABA Journal top 100 blawgs list. I have always thought Ron's coverage of the crime and courts beat was pretty fair and balanced and a lot of the Common Law video series have helped persons outside the court system see a little of what actually goes on behind the scenes, both in the courtroom and in the prison system...

Cannot "routinely" pat down without articulable safety concern [NOT FINAL]

Posted on November 29, 2010
Michael Redmon won in State v. White, 103,472 (Kan. App. Nov. 12, 2010), reversing a Wyandotte County drug prosecution based on a Fourth Amendment violation. The COA held that an officer had improperly extended a traffic stop and then considered the validity of a pat down (where an officer found incriminating evidence):White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed...

Another upward durational departure set aside

Posted on November 29, 2010
Heather Cessna and Sarah Morrison won in State v. Duncan, No. 99,463 (Kan. Nov. 19, 2010), reversing imposition of an upward durational departure sentence in a Sedgwick County aggravated battery prosecution. Mr. Duncan had pleaded guilty to severity level seven agg battery, including a joint recommendation for an upward durational departure sentence, which the district court imposed...

Iowa Supreme Court invalidates fee-cap for appeals

Posted on November 29, 2010
Hat tip to Law of Criminal Defense for posting on this Iowa Supreme Court case holding that a fee cap of $1500 per appeal for criminal defense appeals is unconstitutional under a structural ineffective assistance of counsel approach. The opinion does a nice job of relating some of the economic realities of persons who do this kind of work and explaining the impact of these realities:First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals...

Petition for Review granted, November 2010

Posted on November 23, 2010
On November 4, 2010, the KSC granted the defendant's petition for review in the following case:State v. Hale, Case No. 101,071 (Dec. 31, 2009) (unpublished)Issue presented: Whether the district court erred by denying the defendant?s motion to correct illegal sentence when the defendant?s criminal history score had been increased based on uncounseled misdemeanor convictions that resulted in incarceration.

Downward departure upheld [NOT FINAL]

Posted on November 23, 2010
Washburn student intern Jeffrey Dazey and I (and Patrick Dunn, who argued the case), won in State v. Liskey, No. 103,145 (Kan. App. Nov. 19, 2010), affirming Judge Leuenberger's imposition of a downward durational and departure sentencing in a fairly high profile Shawnee County aggravated indecent liberties and criminal sodomy prosecution...

Short list for COA

Posted on November 18, 2010
Here is the press release announcing the nomination of municipal judge Karen Arnold-Burger, district judge Robert Fredrick, and KSC staff attorney Deborah Hughes for the vacancy on the COA to be created when Chief Judge Rulon retires in early January...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.