Public Defense

Probationers have some liberty interests

Posted on February 04, 2009
Patrick 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, 2009
Recently, 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, 2009
Here 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, 2009
Washburn 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...

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Misconduct leads to dismissals

Posted on January 23, 2009
Here 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, 2009
Here 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, 2009
Kansas 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...

Inauguration 2009

Posted on January 20, 2009

Kansas Defenders goes to Washington

Posted on January 18, 2009
Washington 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, 2009
As 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, 2009
Shawn 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, 2009
Kerry 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, 2009
Here 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, 2009
The 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, 2009
Here 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, 2009
Dan 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, 2008
Washburn 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, 2008
I 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, 2008
Here 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, 2008
Here 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, 2008
Here 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, 2008
a 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, 2008
Meryl 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, 2008
John 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, 2008
Paul 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, 2008
Here 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, 2008
Sally 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, 2008
Reid 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, 2008
Yesterday 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, 2008
The 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)...

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