Public Defense

New AG

Posted on January 21, 2008
Here 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, 2008
Rachel 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, 2008
Rick 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 Dec. 21, 2007)(unpublished), obtaining a new trial in a Wyandotte County aggravated battery prosecution.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, 2008
Charles 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 Dec, 21, 2007)(unpublished), reversing a Seward County possession with intent to sell conviction on sufficiency grounds:Viewing the evidence in the light most favorable to the State, it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...

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Bad search warrant [NOT FINAL]

Posted on January 19, 2008
Carl 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 Dec. 21, 2007)(unpublished), reversing a Sherman County drug conviction.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, 2008
Here 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, 2008
Steven 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, 2008
Charles 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, 2008
Here 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, 2008
The 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, 2008
Here 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, 2007
Ryan 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, 2007
J. 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, 2007
Fred 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, 2007
David 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, 2007
Mike 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, 2007
Daniel 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, 2007
Here 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, 2007
Here 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, 2007
Wayne 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, 2007
Jennifer 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, 2007
Stephen 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, 2007
The 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, 2007
Thanks 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, 2007
Here 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, 2007
Carl 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, 2007
Here 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, 2007
Here 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, 2007
Here 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, 2007
Paul 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...

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