Thursday, June 29, 2006

A fool for a client . . . but a winner.

Howard Pincus won in U.S. v. Tucker, reversing felon in possession convictions from Kansas. The Tenth Circuit held that the district court improperly denied Mr. Tucker's right to represent himself at the voir dire stage. Even though Mr. Tucker was subsequently allowed to represent himself during the trial, the Tenth Circuit held that the record did not establish that the request was for the purpose of delay and, therefore the district court erred. And because denial of right to self representation is not subject to harmless error, the Tenth Circuit reversed.

Nice press for the Defender Project

Here is a link to a nice article in the Lawrence Journal-World regarding the KU Defender Project's recent victory in State v. Monreal. I blogged about this earlier here.

Saturday, June 24, 2006

Sad news

Here is an article from the Hutchinson News reporting on the death of our friend and colleague, Mickey Moorman. Last fall, I attended a NITA program in Hays and Mickey was my bench trial partner. I have also consulted with him on many other instances and found him to maintain that difficult balance between gentleness and zealousness. Please keep Mickey's wife in your thoughts and prayers.

Here is a link to Mickey's obituary.

[Note: the links to the Hutch News articles have expired.]

Wednesday, June 21, 2006

Know a lot of 124 year olds?

I just thought this Wichita Eagle article was sort of funny. In it Judge Pilshaw claims that "This is the first time I've sent someone to prison knowing they were going to die there." What's funny is that I know that she sentenced one of my old clients, Eugene Kemp, about 20 years old at the time of sentencing, to a presumptive 1240 month prison sentence. Did she really think Mr. Kemp was likely to survive that? (We got several of Mr. Kemp's convictions reversed on appeal, (here) so his total sentence was evetually reduced to about 15 years). And I can't believe Judge Pilshaw hasn't imposed consecutive life sentences in some other cases. It just seems a little melodramatic to me. At least she cut the guy some slack on the duration.

[Note: the link to the Wichita Eagle article has expired.]

Just call out my name . . .

A little known fact is that I am a vice-chair (one of three) for the NACDLTenth Circuit amicus committee. That means I am sort of responsible to respond to requests for amicus briefs in the Tenth Circuit or in state courts in the Tenth Circuit and to help find someone to write the amicus brief (or write it myself). I was embarrassed today to have to report that I have done nothing in the last year in this regard. No one has really approached me requesting an amicus brief. I thought maybe part of the problem is that I am not actively soliciting such requests. So, if you are working on an appellate case in the Tenth Circuit or a state court in the Tenth Circuit and have an issue that you think would be of interest to NACDL and would be of use to your client to have an amicus brief, let me know!

Monday, June 19, 2006

It's not just Kansas

I have posted before (here) regarding the fact that although the KSC has a lot of critics regarding its prosecutorial misconduct jurisprudence, it is really not out of step. The Criminal Law Reporter had a blurb about Liggett v. People, where the Colorado Supreme Court categorically indicated that it is inappropriate to ask one witness whether another witness is lying or even mistaken. As often occurs in Kansas appellate courts, the Colorado court held the error harmless, but made it crystal clear that such tactics are improper.

Another extended traffic stop case

Matt Edge won in State v. Armstrong, No. 93,941 (Kan. App. June 16, 2006)(unpublished), reversing a Harvey County conviction for possession. This was another case finding that police officers validly stopped a car, but went on to improperly extend the duration of the stop. The state tried to argue that by giving consent, the detention terminated. The COA disagreed holding that "Such a contention is counterintuitive. A reasonable person would not feel free to disregard the police and leave in the vehicle for which permission to search had just been given." Although probably moot after the suppression, the COA also held that the district court improperly excluded evidence of a witness' plea as a prior inconsistent statement.

[Update: the state did not file a petition for review and the mandate issued on July 20, 2006]

Thursday, June 15, 2006

Couple of PDs run for office

I notice a couple of PDs have filed to run in this November's election.

Heather Cessna, my colleague at the ADO, is running for the 15th District in the Kansas House of Representatives. She is a Democrat running against an incumbent Republican.

Sarah Sweet-McKinnon, now in the Hutch PD's office, is running for the Division 3 District Judge position in Reno County. She is a Democrat running against the winner of a three-way Republican primary including Tom Stanton. Divisions 3 is currently filled by Judge Becker.

If anyone knows of other defenders that are running, please let me know.

But the drugs have to be somewhere!

Phillip White, my old Sedgwick County public defender colleague, won in State v. Anderson, No. 92,580 (Kan. June 9, 2006), reversing a Sedgwick County possession with intent to sell conviction on Fourth Amendment grounds. The KSC agreed with the state that officers had reasonable suspicion to extend a traffic stop to investigate a possible drug offense. But the KSC disagreed with a prior Tenth Circuit case and held that further detention violated the Fourth Amendment:

The State also asserts that the officers' reasonable suspicion ripened into probable cause to arrest Anderson after Golston was found to be holding drugs and arrested, the drug dog alerted, and the officers thoroughly searched the truck and found no additional drugs. The State wants us to conclude that additional drugs had to be somewhere and that the somewhere was on Anderson's person 30 to 40 feet away from the truck.

We are not willing to do so. Rather, we adopt the Court of Appeals' analysis of this issue. Not only did no probable cause to arrest Anderson for drugs develop when the unproductive search of the truck was completed; the justification for the Terry detention ended.

The KSC also held that Mr. Anderson's arrest was not justified because he was a conditional release violator:
Probable cause to believe a person is a conditional release violator does not permit the person's warrantless arrest.
The KSC reviewed the statutes and found that being a conditional release violator is not a crime itself and statutes authorizing arrest of conditional release violators require a written order.

Nice article about the Hutch PD office and its tribulations

The Hutch News reports about the presently short-handed Hutch PD office. Some nice comments about the difficulty of recruiting. (Although I think the Hutch office would be my office of choice, if I were to return to trial practice. Perhaps I'm biased because I grew up in Hutch though!).

[Note: the link to this article has expired.]

Monday, June 12, 2006

But I'm such a Justice Stevens fan!

If you have followed my blog, you know that we have repeatedly (and unsuccessfully) filed SCOTUS cert petitions on the Almendarez-Torres issue. (See previous entry here). Douglas Berman at Sentencing Law and Policy has this entry on today's back and forth between Justice Thomas and Justice Stevens regarding several cert denials on that this issue. The SCOTUS denied two other Ivory cert petitions filed by the ADO.

I think Justice Stevens is wrong regarding the impact of Almendarez-Torres. Although not very many people actually contest criminal history findings, I bet even .01% of all the cases in state courts across the U.S. would add up to more than all of the people currently on death row, a subject on which the SCOTUS grants cert in multiple cases every year. For the people on the margin for whom these criminal history decisions are critical, they should have every right to demand the same Sixth Amendment and Fourteenth Amendment procedural protections as people who are contesting "traditional" guilt facts.

Justice Stevens argues that stare decisis is a sufficient basis for denial of cert in these cases. But, stare decisis didn't stop the SCOTUS from reaching and deciding Apprendi , Ring, and Blakely. If you are going to make a watershed change in the law like Apprendi correcting precedent to conform to that watershed change really doesn't implicate stare decisis concerns.

Judge Parrish suppresses confession

Jennifer Roth and Cindy Sewell won a suppression order on the eve of trial in State v. Brown, a Shawnee County agg battery/child abuse case. The jury was picked on Monday, but before the jury was sworn on Tuesday morning, Jennifer presented some additional authority to Judge Parrish, who finally was convinced and suppressed Mr. Brown's statements. The jury was discharged (before jeopardy attached) and the state indicated it planned to file an interlocutory appeal.

[Update: the state docketed an appeal on June 30, 2006. As is usual in interlocutory appeals, the briefing schedule has been expedited, which basically just means no extensions for the attorneys.]

[Further update: The COA affirmed Judge Parrish on May 4, 2007. Here is my blog entry. The state filed a PR on June 4, 2007.]

[Further update: The KSC granted the state's PR on October 1, 2007. The case will likely be argued in January or March 2008.]

[Further update: The KSC affirmed the COA and Judge Parrish on May 16, 2008.]

Thursday, June 08, 2006

Mistrial in federal court case due to incompetency

The Wichita Eagle reports about Judge Brown stopping a federal trial. The defendant, who was shot in the head by ATF agents, was not able to assist in his defense because memory lapses stemming from his head injury. Kiehl Rathbun represents Mr. Smith and successfully obtained the mistrial.

[Note: the link to this article has expired and I have removed it.]

Tuesday, June 06, 2006

Judge Hood orders new trial based on IAC

Here is a link to a Topeka Capital-Journal article (registration required) reporting that the KU Defender Project won a new trial from Judge Hood in State v. Monreal, reversing a second degree murder conviction from Ford County. Here is a link to the Dodge City Globe article (registration required) providing some more details, including quotes from Jean Phillips and Alice White from the Defender Project.

Friday, June 02, 2006

An effective appeal includes a petition for review

Heather Cessna and Brent Getty won in Kargus v. State, No. 92,432 (Kan. App. June 2, 2006)(unpublished), getting an order for an evidentiary hearing in a Johnson County 1507 case. The only issue raised on appeal was an IAAC claim based on the failure to file a petition for review in the unsuccessful direct appeal.

The KSC does not take late petitions for review, ever. Unlike late notices of appeal, or late briefs, or most other things that can be fixed if the attorney admits a mistake, the KSC does not take late petitions for review (or at least I have never seen them do so and we have had to try when we have blown the deadline).

I have unsuccessfully pursued this type of claim on appeal before. The hurdles have often been (1) showing prejudice and (2) remedy.

For example, in Swenson v. State, a COA panel held that a movant could not show prejudice unless he could show that the KSC would have granted review and the appeal would have been successful. Given that only about 1 in 100 petitions for review are granted, that pretty much makes it impossible to get relief on this type of claim. [Update: Michael Whalen filed a petition for review in Swenson on June 12, 2006] [Further update: the KSC granted the petition for review in Swenson on September 19, 2006].

In Kargus, the COA correctly held that prejudice is shown because an appellant is precluded from going to federal court unless the federal claims are exhausted in state court. Therefore, even if not granted, the outcome of the appeal is different if a petition for review is timely filed. The Kargus panel held that prejudice was shown and remanded for an evidentiary hearing on whether he should be allowed to file a late petition for review.

The second part of this that has sometimes concerned judges is: what is the remedy? Appellate judges have incredulously asked me, "you really think that a district court can order the Kansas Supreme Court to accept a late petition for review?" This is an issue of some disagreement, even among my colleagues. I think that the KSC is subject to the Constitution just as much as everyone else and that they would be subject to the lawful order of the district court acting within its proper habeas jurisdiction. But even if I am wrong and the district court cannot order the KSC to take the petition for review, it has a remedy. Every habeas court has a remedy. It can vacate the conviction and order a new trial. If the KSC would take (and likely deny) a late petition for review, that would be the least intrusive remedy. But if it cannot (or will not), the conviction still violates the Fourteenth Amendment and the proper remedy would be to vacate the conviction. So even if my remedy is not possible, some remedy is. (And I would think the state would prefer my remedy!)

It will be interesting to see if any more litigation occurs in this area now that there is somewhat of a split. If you are representing a movant in a similar 1507 proceeding where the state suggests your client has to show that the KSC would have granted the petition for review, you might want to cite this unpublished case.

[Update: the state filed a petition for review on July 5, 2006]

[Further update: the KSC granted the state's petition for review on September 19, 2006. This case will likely be argued in December 2006 or possibly January 2007].

[Further update: the KSC affirmed the COA and remanded for evidentiary hearing on Mr. Kargus' claims. Here is my post on the case.]

It's a hard knock life . . . for us

Howard Bashman at How Appealing linked to this Slate article about the difficulties faced by public defenders all across the country. It's worth a read for public defenders or other people who care about the Constitution.