Justice Rosen wants justice in plea agreements

In State v. Jackson, No. 106,184 (Kan. April 12, 2013), the KSC reversed a 310-month sentence in a Jessica's Law case based on the failure of the district court to follow the proper procedures when it departed to a guidelines sentence (Carol Longenecker Schmidt with the win).  The holding is consistent with the court's prior holdings on the subject, but Justice Rosen's concurring opinion in the case is worth a read.  And it is worth consideration by Kansas courts.

As he did in a previous case, Justice Rosen took issue with the current process of criminal defendants entering plea agreements without knowing what their criminal history is going to be at sentencing.  He stated in part in his concurring opinion:

I will simply refer to my concurring opinion in State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165 (2012), and reiterate that, consistent with Kansas law and the heightened constitutional protections demanded in criminal proceedings, we should require a predetermined, accurate criminal history which is to be used at any subsequent sentencing hearing to be part of plea agreements. Not only does this give Jackson and similarly situated defendants the knowledge necessary to effectuate a knowing, voluntary, and intelligent waiver of the right to trial, it recognizes the significance that criminal history plays in the sentencing scheme and completely avoids the problems associated with the criminal history crapshoot currently employed in most plea proceedings. We simply should not continue to legitimize a plea negotiation process that undermines the presumption of fairness and dignity that serves to protect our liberty interests.

These words undoubtedly ring true for any defense attorney (or prosecutor) that has entered a plea agreement, only to see the defendant's criminal history at sentencing be higher than thought at the time of the plea.  This has happened to me.  And it's probably happened to most other attorneys who have handled more than a few felonies (it's also a big problem when PSIs are not completed until a few days before, or even the day of, sentencing - defendants are understandably frustrated not knowing what their sentencing range is going to be until the last minute, and it can cause attorneys to overlook legal objections that they would have caught with more prep time or to seek otherwise unnecessary continuances). 

But Kansas defenders might already possess the tools to make this happen.  The discovery statute, K.S.A. 22-3212, states as follows:

(h) For crimes committed on or after July 1, 1993, the prosecuting attorney shall provide all prior convictions of the defendant known to the prosecuting attorney that would affect the determination of the defendant's criminal history for purposes of sentencing under a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq., prior to their repeal, or the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.

And as we know, K.S.A. 22-3212(f) states that "[d]iscovery under this section must be completed no later than 21 days after arraignment or at such reasonable later time as the court may permit."

In the Garcia concurrence, Justice Rosen pointed out that nothing prohibits courts from ordering the computation of criminal history before the plea agreement:

Following our statutorily derived procedure, a defendant's criminal history score is not calculated until after the defendant has been convicted. K.S.A. 21-4714 [now K.S.A. 21-6814]. This procedure makes some sense for completing a final presentence investigation report (PSI), because the PSI includes the current crime or crimes of conviction. But the delay in calculating the defendant's criminal history score for the purpose of completing a PSI compromises the underlying integrity and principles of fair and equitable justice by requiring defendants to waive their constitutional rights without a basic understanding of the consequences of their actions. This statute does not preclude the calculation of criminal history prior to the plea, nor should it be applied in a manner that supersedes the defendant's constitutional rights.

Consistent with Justice Rosen's concurrence, Kansas defenders should pressure the courts and prosecutors into providing accurate criminal history information prior to plea agreements (after all, K.S.A. 21-6703[b] requires prosecutor offices to assist with the PSI preparation).  Use the discovery statute to get the information from the prosecutor or file a motion asking the court court to order a preliminary PSI prior to any plea agreement.

Additionally, this is a systemic issue that can be addressed with the local courts.  Encourage district courts to adopt rules requiring preliminary PSIs to be conducted prior to a final plea hearing.  As in most things, a little extra preparation and knowledge leading up to an important decision usually makes things go a lot more smoothly.  

"Patently egregious" comments in closing argument warrant new trial

Michelle Davis won in State v. Stimec, No. 103,329 (Kan. April 19, 2013), reversing two Wyandotte County convictions for aggravated indecent liberties with a child.   The court held the prosecutor's statements made during rebuttal closing argument of the jury trial "were so patently egregious and prejudicial as to deny Stimec a fair trial . . . ."

The KSC described the facts of the case as follows:

At trial, the State presented evidence that Stimec's 6-year-old son, J.S., spent every other weekend with Stimec, and when he returned home one weekend, J.S. told his mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including on each other's private parts.

J.S.'s mother and stepfather reported J.S.'s statements to the police. A forensic examiner interviewed J.S., and a tape of the interview was played at trial. During the interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S. rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, "[I]t feels good" and, "Oh yeah," as this conduct was occurring.

Stimec testified he put lotion on his son but never in inappropriate places.  Consistent with this testimony, in closing argument Stimec's counsel suggested "[m]ost people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but for him to put lotion on his son's back after a bath isn't a crime."

The prosecutor made these comments during the State's rebuttal closing argument:

It is not illegal to put lotion on a child's back. It is not illegal to put it on their ankles, knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a crime to stroke your son's penis with lotion. I mean, let's just call it what it is, okay, that's a crime. You know what, feel free to take a poll in the jury room when you go to deliberate, take a poll. If there is one member of this panel who has stroked their son's penis with lotion, then by all means, find that way. I suspect that won't be the case.

The court held that the comments constituted plain error:

[T]he comments were highly improper for several reasons, including that they: (1) appealed to the passions and prejudices of the jury; (2) diverted the jury's attention from the facts of the case, explicitly inviting the jury to consider facts outside the record; (3) implicitly commented on Stimec's credibility; (4) misstated the evidence by suggesting Stimec "stroked" his son's penis when in fact, the victim's statements and testimony did not utilize this phrase; and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing the likelihood any juror would argue for acquittal. Under these circumstances, we have no hesitancy in concluding the prosecutor's statements were inappropriate and in error.

The court also addressed the argument of the State that these comments were provoked by defense counsel and should be excused.  The court explained (as it had it previous cases) that "defendants do not open the door to prosecutorial misconduct."  The KSC held that the "inappropriate comments in this case went directly to the heart of the issue the jury was asked to decide" and thus were not harmless. 

Cannot waive statutory right to counsel without safeguards

Meryl Carver-Allmond won in State v. Lawson, No. 103,509 (Kan. April 5, 2013), obtaining a new trial in a Leavenworth County aggravated criminal sodomy prosecution.  Meryl had to argue this case twice before the Kansas Supreme Court as it grappled with some complicated issues surrounding federal and state constitutional and statutory rights to counsel.

The day after Mr. Lawson's first appearance, officers took Mr. Lawson to the police department for interrogation.  According to officers, they provided oral and written Miranda warnings and Mr. Lawson signed a written Miranda waiver and subsequently made several incriminating statements.

The KSC acknowledged that recent SCOTUS case law allows for uncounseled waivers of both the Fifth and Sixth Amendment right to counsel by a Miranda waiver process.  Although the KSC discussed at some length the possibility of independently construing the Kansas Constitution right to counsel, it ultimately decided the case on statutory grounds:

We need not decide today whether the right to counsel described in K.S.A. 22-4503 is constitutionally required by the right to counsel provision in § 10 of the Kansas Constitution Bill of Rights. Where a right to counsel is provided by statute, the denial of that right can result in a reversal. Here, Lawson was "charged by the state of Kansas in a complaint, information or indictment with [a] felony," and, therefore, he was "entitled to have the assistance of counsel at every stage of the proceedings against [him]." K.S.A. 22-4503(a).

. . . .

Given that the State-initiated polygraph examination and interview of Lawson was a critical stage of his criminal proceedings for Sixth Amendment purposes, we hold that it was likewise a stage of the criminal proceedings for purposes of his entitlement to the assistance of counsel pursuant to K.S.A. 22-4503.

The KSC went on, then to decide that an uncounseled out-of-court waiver is invalid with respect to the statutory right to counsel:

we would hold that a defendant's uncounseled confession to a judge, via a plea of guilty, would be invalid unless the defendant had waived his or her right to counsel on the record after being given appropriate warnings by the court and after the court had assured itself that the waiver was knowingly and intelligently made and then caused all of that to be made a matter of record. We should not require anything less for an out-of-court, in-the-police-station confession to a law enforcement officer where the waiver of the defendant's statutory entitlement to the assistance of existing counsel is required. In other words, after the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form, addressing the defendant's Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges.

So Mr. Lawson gets a new trial without the incriminating statements taken during the interrogation.

 Here is coverage in the Leavenworth Times.

Introducing evidence of probation does not open door to details of underlying offense

Washburn student intern Aaron Freestone and I won in State v. Everett, No. 100,529 (Kan. March 29, 2013), obtaining a new trial in a Smith County manufacture prosecution.  There were several alleged errors in the case, but the KSC reversed based on improper introduction of evidence of details of prior crimes.

The state alleged, based on informant testimony, that Mr. Everett manufactured and then used the product during a two-month period (later a three-month period).  During the alleged time period, Mr. Everett was on probation and was taking periodic drug tests.  Mr. Everett introduced evidence that all of his drug tests were clean during the time period in question, casting doubt on the informant's story.  After this testimony, the state argued that defense counsel had "opened the door" to testimony regarding the details of the offense for which Mr. Everett was on probation--possession of manufacture paraphernalia.  Over defense objections, the district court allowed the cross-examination.  The KSC disagreed:

The only relevance articulated by the trial judge was the jurors' curiosity. Mere curiosity is not equivalent to materiality. The evidence must be material to the issues the jury must decide or to the rebuttal of the evidence the defense introduced.  In this case, the prior conviction is not an element of the offense, and it does not have a legitimate and effective bearing on the decision of whether Everett
unlawfully manufactured a controlled substance.

The only potential materiality of the prior conviction is to prove that Everett had the tools to manufacture methamphetamine in the past and probably manufactured methamphetamine this time, i.e., Everett had a propensity to commit the crime. This is precisely the harm K.S.A. 60-455 was designed to prevent, and Gunby clarified that evidence is not admissible if its only purpose is to establish a propensity to commit a crime. 

The evidence that Everett had been convicted of possession of drug paraphernalia with intent to manufacture methamphetamine was not material, and it was error to admit the evidence even in rebuttal. 

Some of the trial judge's comments suggest he had doubts about the admissibility of the evidence, even in rebuttal, but he felt any claim of error had been waived by the defense presenting information regarding the probation. We disagree. General information that a defendant has committed a previous crime is far different from evidence of the exact nature of the prior crime, at least under the specific facts of this case. Granted, the defense's evidence portrayed Everett in a bad light. But the State's rebuttal evidence went further and informed the jury that Everett had planned to manufacture methamphetamine on a prior occasion. This additional evidence was like putting a neon sign over Everett that read, "propensity to manufacture methamphetamine." The difference is significant, distinct, and more prejudicial than simply soiling Everett's character. For the same reasons, Everett's failure to object to the preliminary questions regarding the general nature of community corrections and the fact that Everett was on probation because he had committed an unspecified felony does not preclude our review of this question under K.S.A. 60-404.

As an aside on harmless error analysis, the KSC also noted that because the state had not argued the error was harmless, it had waived any such claim.

Oral notice of prohibition could violate Due Process Clause

Washburn student intern Amy Ahrens and I won in State v. O'Dell, No. 105,311 (Kan. App. Jan. 18, 2013), obtaining a new trial in a Stevens County trafficking in contraband in a correctional institution conviction.  The state had alleged that Ms. O'Dell had introduced some cigarettes and a lighter (which she had been orally instructed were prohibited) into the Steven County jail while serving a couple of weekend jail terms for another offense.  For this offense, the state charged Ms. O'Dell with a couple counts of trafficking in contraband in a correctional facility, the jury convicted, and the district court imposed a controlling 45-month prison sentence.

The issue on which the majority reversed involved an instructional error.  Although the state charged Ms. O'Dell with introducing cigarettes and a lighter to the jail, the jury instructions allowed prosecution by showing that Ms. O'Dell possessed the prohibited items in the jail.  The COA agreed that these instructions allowed Ms. O'Dell to be convicted of a crime she was not charged with and reversed and remanded for a new trial:

The terms “introduce,” “take/send,” “possession,” and “distribution” are not synonymous or superfluous terms. Focusing on the terms relevant to this case illustrates this point. “Introduce” is defined as “to lead or bring in esp. for the first time.” Webster's New Collegiate Dictionary 606 (1973). Whereas, “possession” is defined as “the act of having or taking into control” or “control or occupancy of property without regard to ownership.” Webster's New Collegiate Dictionary 897 (1973). But “distribute,” on the other hand, is defined as “to divide among several or many.” Webster's New Collegiate Dictionary 333 (1973). We conclude there was instructional error.

Ms. O'Dell also claimed that the prosecution in this case violated the Due Process Clause.  The trafficking in contraband statute allows the administrator of each jail to designate what items can be lawfully possessed in each jail.  In this case, the state did not introduce any written policy regarding prohibition of cigarettes and/or a lighter.  Although one jailer indicated that there was such a policy, the officer that booked Ms. O'Dell into jail was not aware of it and Ms. O'Dell had certainly never been given such a written policy.  The booking officer did indicate that Ms. O'Dell was told that cigarettes and lighters were not permitted in the jail.   Ms. O'Dell raised a claim that oral instructions that an otherwise lawful item is prohibited in a jail was insufficient to provide notice of the crime.

The COA majority held that this issue was not raised below and refused to reach the issue for the first time on appeal.  Judge Atcheson dissented from this part, holding that the issue was sufficiently raised on appeal and should have been reached by the court:

On appeal, Odell submitted the notice lacked both “adequate [constitutional] safeguards” and failed to fairly inform her that possession of the cigarettes and the lighter would subject her to criminal penalties as opposed to merely administrative sanctions within the jail. Odell generally characterized the shortcomings as due process violations without offering additional labels. The thrust of Odell's argument rested on the constitutional insufficiency of oral notice alone in giving sufficient warning of conduct the State has chosen to criminalize—what she terms “nondeceptive notice.” In its brief, the State counters that Odell received actual oral notice that she could not have cigarettes or a lighter in the jail. According to the State, the oral notice fully satisfied Odell's due process rights. So sufficiency of oral notice as a matter of constitutional due process has been joined and ought to be considered. 

My analysis is not somehow judicially improper because it explores aspects of the issue from perspectives or using terminology the parties avoided. An appellate court may look beyond the precise arguments presented in the briefing of an issue, especially if those arguments are legally unsatisfactory. The briefs merely reflect the parties' assessments of the best advocacy for their respective positions—not the universe of every rationale for a given result. Appellate courts decide issues; they do not arbitrate or grade arguments. So the judicial resolution of an issue need not be rendered in lockstep with the argument or the terminology of one side or the other.

Judge Atcheson went on to indicate that he would have held that oral notificiation of a prohibited item is insufficient to satisfy the Due Process Clause:

Written notice of what conduct will subject persons to criminal punishment straddles substantive and procedural due process and properly fits within both spheres. The history and tradition runs deep. Hammurabi remains one of the world's great law givers because, nearly 4,000 years ago, he authored a legal code. While some of the substantive provisions Hammurabi recorded were notable, the code's epochal significance lay in the very idea that the law should be written and, thus, both fixed and knowable. See Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 125 (N.D.Ill. 1994) (“From the code of Hammurabi to the code of the United States, our judicial foundation have been embedded in the principle that law must be manifested in a written form.”). The virtue of fixed, knowable law infuses the jurisprudence of this country. And it is both implicit and explicit in constitutionally protected rights.

The Sixth Amendment to the United States Constitution, for example, requires that those accused of crimes be afforded notice of the particular charges against them. The right has always been construed to require written notice. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167 (1963) (notice required under Sixth Amendment includes the right to indictment, a written statement of the charges).  An accused's right to such constitutional notice of the charges extends to state prosecutions.

In [Cole v. Arkansas, 333 U.S. 196, 201–02 (1948)], the defendants were charged in an information—a written statement of the alleged crime—with one offense upon which the jury was instructed and then convicted them. On appeal, however, the Arkansas Supreme Court found the defendants guilty of a related, though more serious, charge. The United States Supreme Court, in an opinion Justice Hugo Black authored, reversed the decision, recognizing that “[n]o principle of procedural due process is more clearly established than [a defendant be given] notice of the specific charge.” 333 U.S. at 201.  Later in the opinion, Justice Black described the constitutional defect in terms characteristic of a breach of substantive due process rights afforded criminal defendants. As a result of the Arkansas Supreme Court's ruling, the defendants in that case were “denied safeguards guaranteed by due process of law—safeguards essential to liberty in a government dedicated to justice under law.”  333 U.S. at 202.

In short, a person accused of a crime must be given written notice of that accusation to comport with a fundamental right recognized as a necessary ingredient of basic fairness. If that be so—and it most certainly must in light of decisions such as Cole—then a fortiori, citizens have at least an equally compelling and fundamental right to be informed in writing as to what conduct may cause them to be accused in the first place. Any sensible conception of fair notice requires nothing less. And simple logic defies the notion that general notice of criminal conduct might be imparted orally to the citizenry as a whole while an alleged transgressor would then be entitled to written notice only when being charged with a purported transgression.

So, one COA judge found conviction under this statute to violate the Due Process Clause.  The other two didn't disagree, they simply failed to reach the issue.  If you have a prosecution for trafficking in contraband in a correctional institution based on an oral prohibition, you can should file a motion to dismiss attaching Judge Atcheson's dissenting opinion.

[Update:  neither party filed a petition for review and the mandate issued on February 26, 2013.]

Cert granted in Cheever

Here is a post on SCOTUSBlog reporting that the United States Supreme Court granted the state's cert petition from the decision in State v. Cheever, blogged about here.  SCOTUSBlog indicates that the case will likely be argued next fall.

IAC found in federal drug conspiracy case that carried mandatory life sentence

Branden Bell won in United States v. Gilmore, Case No. 12-2263-JWL (Dist. Kan. Feb. 4, 2013), a motion to vacate sentence pursuant to 28 U.S.C. § 2255.  In the underlying criminal case (Dist. Kan. Case No. 07-20164-05-JWL), Mr. Gilmore was convicted by a federal jury of conspiracy to distribute and to possess with intent to distribute more than 50 grams of methamphetamine.  He was sentenced to the mandatory minimum sentence of life imprisonment, which was imposed based on his two prior convictions for felony drug offenses.  See 21 U.S.C. § 841(b)(1)(A)(vii).  In granting the 2255 motion, the court found that trial counsel's performance was deficient and that it prejudiced the outcome of the process.  The memorandum opinion is available here.

Specifically, the court found that Gilmore's attorneys were ineffective because they should have advised him that he was facing a mandatory life sentence based on the two prior felony drug offenses and based on his trial attorney's apparently misunderstanding of federal drug conspiracy laws:

The court is persuaded that Mr. Gilmore received constitutionally deficient representation from initial counsel by counsel’s failure to advise Mr. Gilmore that his convictions could trigger a “double” bill of information under § 851 from the government which would result in a mandatory minimum life sentence.  [Citations omitted.]  Of course, the deficient performance of Mr. Gilmore’s initial counsel occurred early enough in the case that the errors could have been corrected by trial counsel in sufficient time to preclude any prejudice to Mr. Gilmore. Unfortunately, trial counsel not only failed to correct the errors of initial counsel but compounded those errors through her own deficient performance.

It is undisputed that trial counsel, by July 2008, knew that Mr. Gilmore had two prior felony drug convictions. Nonetheless, her July 21, 2008 letter to Mr. Gilmore clearly indicates that trial counsel did not understand the implication of those two prior drug convictions. She cautioned Mr. Gilmore that he was facing “a substantial amount” of time (she calculated a guidelines range of 360 months to life) and her handwritten notes indicate to the court that trial counsel believed that Mr. Gilmore was eligible for a guidelines sentence. Certainly, nothing in the letter or the attachments notifies Mr. Gilmore of any possibility of a mandatory minimum life sentence.

 The court is also convinced that, during this same time frame, trial counsel’s understanding of federal drug conspiracy laws and her assessment of the evidence against Mr. Gilmore were entirely inaccurate. The court is persuaded that trial counsel led Mr. Gilmore to believe that his chances of securing an acquittal were higher than the law would support under the facts of the case and that Mr. Gilmore’s protestations of his “innocence” were informed by trial counsel’s advice. Specifically, trial counsel advised Mr. Gilmore that “sharing” drugs did not mean “distributing” drugs. Mr. Gilmore testified that trial counsel gave him that advice and that testimony is corroborated by trial counsel’s own arguments during the instruction conference at trial. While that legal question is apparently an open one in the Tenth Circuit, [citation omitted], trial counsel’s advice to Mr. Gilmore that the two concepts were, in fact, different is not the law of the Circuit. Nonetheless, Mr. Gilmore, presumably with the go-ahead from trial counsel, testified at length at trial about purchasing methamphetamine from a known drug dealer and sharing those drugs with his co-defendants, his friends and his girlfriend on numerous occasions.

Mr. Gilmore also testified that he drove one or more of his co-defendants to Kansas City, Kansas for the purpose of purchasing methamphetamine, that he knew his co-defendants were drug dealers at the time, and that he assumed his co-defendants were bringing methamphetamine back to St. Joseph, Missouri. Mr. Gilmore’s decision to testify without hesitation about such matters indicates a belief that his level of involvement with his co-defendants did not constitute a violation of federal drug conspiracy laws—a belief that the court is convinced was informed by trial counsel. Trial counsel reviewed the proffer statements on numerous occasions and did not see anything “particularly damning” about Mr. Gilmore. She asked the prosecutor if she was “missing something.” Trial counsel admitted at the evidentiary hearing that she had “some concern about whether or not they had evidence against him.”

After carefully considering the evidence presented at the hearing, the court concludes that Mr. Gilmore has established the requisite prejudice in two respects. First, the court is persuaded that Mr. Gilmore, with the advice and guidance of competent counsel, would likely have obtained a plea agreement in the summer of 2008—prior to the filing of the § 851 notice—that would have contemplated either a 20-year mandatory minimum sentence or, at worst, a mandatory minimum life sentence, but in either case with the opportunity for a reduced sentence under § 3553(e) for substantial assistance. Second, the court is persuaded that Mr. Gilmore, again with the advice and guidance of competent counsel, would likely have obtained a plea agreement just prior to trial that, while incorporating the mandatory minimum life sentence triggered by the § 851 notice, would have provided Mr. Gilmore an opportunity to nonetheless get out from under that statutory minimum through substantial assistance.

In sum, trial counsel’s failure to understand and communicate to Mr. Gilmore the sentencing implications of his two prior felony drug convictions, coupled with trial counsel’s misunderstanding of federal drug conspiracy laws, deprived Mr. Gilmore of the opportunity to make a knowing and intelligent decision about whether to accept the government’s standing plea offer. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (criminal defendant is entitled to competent advice of counsel in plea negotiations). The court is similarly persuaded that Mr. Gilmore’s continued protestations of innocence and his decision to proceed to trial were undoubtedly informed by the affirmative misadvice he received from trial counsel. For the foregoing reasons, the court concludes that Mr. Gilmore’s counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. 

Regarding the prejudice of counsel's deficient performance, the court made the following factual findings:

[T]he court finds it reasonably probable that Mr. Gilmore and the government would have entered a cooperation agreement in April 2009 if Mr. Gilmore had been represented by constitutionally effective counsel at that time. 

* * *

The mandatory minimum, of course, would only be inapplicable if Mr. Gilmore cooperated and the government filed a § 3553(e) or if the government withdrew the § 851 notice. Because the court is not persuaded that the government would have agreed to withdraw that notice, the prosecutor’s reference to acceptance of responsibility must indicate that she anticipated Mr. Gilmore’s cooperation and the subsequent filing of a § 3553(e) motion.  The court is also persuaded that Mr. Gilmore would have accepted a cooperation agreement . . . .  And while it is impossible to say at this juncture what the nature and scope of Mr. Gilmore’s cooperation might have been (or how useful that information might have been to the government), the court is nonetheless persuaded that a reasonable probability exists that Mr. Gilmore’s ultimate sentence would have been less severe than a life sentence.

Thus, the court concluded that Gilmore demonstrated both that his counsel’s performance was constitutionally deficient and that the performance prejudiced Mr. Gilmore.  Regarding the remedy, the court ordered the parties to meet and confer about an appropriate remedy to see whether the parties can resolve the issue, subject to the court’s approval.  It seems likely that the parties will agree to give Mr. Gilmore the benefit of one of two plea agreements that were originally offered.

Breaking the rules of engagement

Lydia Krebs won in State v. Swindler, No. 104,580 (Kan. Feb. 15, 2013), obtaining a new trial in a Sumner County rape prosecution.  The dispositive issue in the case revolved around law enforcement officers' persistent questioning of Mr. Swindler even after he asked to be released:

In this case, Swindler does not claim officers manufactured information or evidence in order to get him to confess, as was the case in Stone and Swanigan. But he argues that the investigators' bait and switch about his ability to terminate the interview and leave had the same coercive effect.

The video in the appellate record makes it very clear that Swindler wanted to exercise the power the investigators had initially guaranteed that he possessed. From the time that he said "I'm done. I want to go home. I'm done," it is obvious that Swindler wanted to terminate the interview and leave the KBI office. His girlfriend and two small children were waiting for him in the hallway, and he expressed his desire to go to work to provide for his children. He repeated that he was "done" and wanted to go home.

Swindler's first clearly inculpatory statement was not made until he had said that he was confessing "just to get this over with so I can go home." Instead of being allowed to leave, the investigators persisted in questioning him. In particular, we note that Attebury admitted he left the room to consult with Hawkins to avoid an expected invocation of Swindler's right to remain silent. Also, Hawkins met Swindler's repeated efforts to do what he had been told he was free to do with "Well, tell me what happened." The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess to raping L.C.

In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment.

The KSC went on to hold that because there was no physical evidence implicating Mr. Swindler, the involuntary statements were "indescribably prejudicial."  As a result, the conviction was reversed and the matter remanded for new trial.

I think lay persons often can't imagine how someone can "confess" to a crime they didn't commit.  This case sets out a nice illustration of how police tactics can often do exactly that.