Acquittal in Topeka murder prosecution

Here is a Topeka Capital-Journal article reporting that Tom Lemon won an acquittal in a Shawnee County second-degree murder prosecution.

Improper waiver of 12-person jury case finally decided

Washburn student intern Cory Scarpella and I won in State v. Raiburn, No. 95,908 (Kan. App. Apr. 22, 2010)(unpublished), obtaining a new trial in an Elk County possession of marijuana prosecution. This case has had a somewhat long and tortuous procedural history on appeal.

The ADO docketed this case in January 2006 and we actually filed our opening brief in the case in November 2006. In April 2007, the state filed its brief responding to the issues, but also alleging that Mr. Raiburn had failed to report to his probation officer. The state sought dismissal of the appeal under the "fugitive disentitlement doctrine." After supplemental briefing on the dismissal request, the COA held oral argument in October 2007. At argument, the state essentially conceded error with regard to the 12-person jury issue, but mainly focused on the fugitive disentitlement doctrine.

In November 2007, the COA dismissed the appeal. Mr. Raiburn filed a petition for review, which was granted in May 2008. After more supplemental briefing (including our briefs urging abandonment of the fugitive disentitlement doctrine), the KSC heard argument in September 2008. In July 2009, the KSC decided the case, here, retaining the fugitive disentitlement doctrine, but clarifying that it could not be invoked just based on an allegation by the prosecutor in his/her brief. The KSC set out the procedure, in which the claim must be raised by the prosecutor in the appellate court and, then, the appellate court can remand to the district court for findings of fact on the alleged fugitive status and those findings themselves would be subject to appeal.

So Mr. Raiburn's case went back to the COA. In August 2009, the state filed a motion with the appellate court and the appellate court remanded for findings of fact as outlined in the KSC decision.

Then, before any hearings were held in district court, Mr. Raiburn was found in jail in Oklahoma.

Although I filed an emergency motion with the appellate court seeking vacation of the remand order, the COA denied those motions and the district court hearing went on in September 2009, before Mr. Raiburn could be returned to Kansas. The district court acknowledged that Mr. Raiburn's whereabouts were apparently known at the time of the remand hearing. But because Mr. Raiburn had originally failed to report to his probation officer, the district court found that Mr. Raiburn was a fugitive. We docketed a supplemental appeal of that decision.

In November 2009, while the supplemental appeal was pending, Mr. Raiburn was actually returned to Kansas and the district court revoked probation. I filed a motion seeking remand to the district court to consider whether Mr. Raiburn was still a fugitive. The COA instead issued an order indicating that Mr. Raiburn appeared to be back in Kansas and ordering the state to show cause why the appeal should not proceed as normal. The state responded agreeing that Mr. Raiburn was back within the jurisdiction of the court and stood silent on whether the appeal should proceed. In December 2009, the COA returned the case to "ready" status.

And in April 2010, the COA issued a short decision reversing and remanding for a new trial because the district court failed to properly advise Mr. Raiburn of his right to a 12-person trial before accepting a waiver after a juror became disoriented and had to leave in the middle of trial:

The record on appeal contains no evidence that the trial judge personally advised Raiburn of his right to a 12-person jury prior to asking him if he objected to proceeding with an 11-person jury. The record only reflects Raiburn's agreement to an 11-person jury. This procedure conflicts the holding in [State v. Roland, 15 Kan. App. 2d 296, 807 P.2d 705 (1991)](holding the district court must advise the defendant of his or her right to a 12-person jury).

This ultimate result is not really surprising given the state's concession at oral argument. But what a long trip.

So, the KSC decision was pretty disappointing to me, given that I think that the stated reasons for the fugitive disentitlement doctrine are pretty outdated and inapplicable. But maybe the upside is that, while the fugitive disentitlement doctrine survives, the practical application will be so unwieldy that it is perhaps not as an attractive an option for the state. The prosecution would still have to go through a whole remand hearing and supplemental appeal regarding the fugitive status just to try to invoke the doctrine. In many cases, I suspect it is just easier and just as effective to simply respond to the merits and allow the appeal to proceed as normal.

Anyway, approximately four and a half years after sentencing and two and a half years after the state conceded the 12-person jury issue at oral argument, Mr. Raiburn finally gets a new trial.

[Update: the state did not file a PR and the mandate issued on May 26, 2010.]

Defenders apply for COA position

Here is the news release announcing the candidates who have applied for the COA vacancy created by the recent death of Hon. Jerry G. Elliott. As you can see, the list includes Randall Hodgkinson (of this blog) and Michael Whalen, both criminal defense attorneys who have experience in the appellate courts.


Anyone that has input on the qualifications of any of the applicants should write the Supreme Court Nominating Commission at: Anne E. Burke, c/o Carol G. Green, Clerk of the Appellate Courts, 301 S.W. 10th Avenue, Topeka, Kansas. The Nominating Commission will conduct interviews with the applicants May 27-28, so be sure to get your letters in asap.


Here is a Topeka Capital-Journal article on the subject. Here is an article from the Lawrence Journal-World on the subject.

[Update: here is the Nominating Commissions' press release announcing the short list.]

More than 20 years for simple possession is cruel and unusual

In honor of the recent SCOTUS case prohibiting LWOP sentences for juveniles, blogged about at Sentencing Law and Policy here, I thought I would blog about a former client that got Eighth Amendment relief this spring.

In Graham v. State, Judge Hornbaker discharged Mr. Graham from further custody stemming from a couple of Geary County drug prosecutions on several grounds, including the Eighth Amendment. Mr. Graham had a 1986 conviction for second time possession and a 1999 conviction for third time conviction. You can read about Mr. Graham's cases here and here.

With regard to the 1986 conviction, the KSC summed up the procedural history a the probation revocation appeal:

Graham's original convictions of possession of methamphetamine, possession of marijuana, and possession of cocaine were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). Graham's sentence was later commuted to 15 years to life by Governor Finney. In 1998, as a result of a K.S.A. 60-1507 action which alleged ineffective counsel in allowing an uncounseled Arkansas conviction to be considered in determining Graham's sentence, this court reversed the judgment of sentence and remanded the case for resentencing.

Graham, who had served 10 years of his original sentence, was resentenced for possession of cocaine, a class B felony. The sentence for a class B felony committed in 1989 was a minimum term of 5 to 15 years and a maximum term of 20 years to life.
K.S.A. 21-4501(b) (Ensley). The judge imposed a 15-year to life sentence. After resentencing Graham, the district court suspended imposition of the sentence and placed Graham on 1 year of probation, supervised by court services. Later, the district court, after finding that Graham had violated the terms of his probation, revoked Graham's probation.

Mr. Graham also received a 150-month prison sentence for a 1999 conviction for possession. The COA affirmed that conviction and sentence.

Mr. Graham filed a motion for relief in district court and, on January 13, 2010, the district court entered an order granting relief. The district court found that the DOC erred by failing to honor a previous judge's intent to convert the indeterminate sentence to a grid sentence. Judge Hornbaker also held that more than 20 years in prison for two counts of simple possession was enough:

The court further finds that in order to prevent manifest injustice, defendant having served over 20 years on simple possession charges, should be discharged.

Lastly, the court finds that the sentence of the defendant for the crimes for which his stands convicted constitutes cruel and unusual punishment.

Judge Hornbaker went on to analyze the imposed sentences under the Eighth Amendment factors stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978) to determine whether the length of the sentence violated the constitution:

Defendant was convicted of three possession of drug charges. He was not convicted of a violent offense. There are so many more serious crimes including crimes of violence and personal felonies that have lower sentences than this defendant's that this court cannot even begin to list them all. In fact almost every felony and many misdemeanors are more serious than what this defendant was convicted of. . . . [I]n this jurisdiction a twenty year sentence for possession of drugs in not even possible today, no matter how many convictions.

As a result, Judge Hornbaker ordered that Mr. Graham be released from DOC custody, although he is still subject to post-release supervision.

The state indicated its intent to appeal this decision.

New article provides interesting attack on prior drug conviction enhancements in federal sentencing

Sarah French Russell, a former Assistant Federal Public Defender for the District of Connecticut, has authored a new article titled "Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing." The article discusses why enhancements based on prior drug convictions are not really sound public policy (providing ammunition for convincing the court to disregard certain enhancements under the USSG), but it also provides details on how attorneys in the District of Connecticut have used Shepard v. United States to keep prior drug convictions from triggering certain "mandatory" sentencing enhancements (ACCA and 851 enhancements):

At issue in Shepard was whether a state burglary conviction triggered the Armed Career Criminal Act (“ACCA”), a federal recidivist statute. The ACCA, like most federal recidivist statutes, uses federal definitions for its triggering offenses. Therefore, in order to qualify for the ACCA, the defendant’s prior conduct must have satisfied the federal definition of burglary; a state’s decision to label an offense a “burglary” does not necessarily suffice. Similar circumstances arise with state drug statues, which vary widely and often do not correspond with federal enhancements. In Shepard, the Court placed strict limits on the types of evidence a federal sentencing court may consider in determining whether a defendant’s prior conviction involved conduct triggering an enhancement. Because of the Sixth Amendment jury trial right, a sentencing judge may not assume the role of a jury and conduct an open factual inquiry about a defendant’s prior conduct. Rather, an enhancement applies only when a defendant admitted in a prior plea — or a jury found — the facts supporting the enhancement.

The Shepard analysis allocates the burden of proof in a way that, in many cases, makes it difficult for prosecutors to prove that a defendant’s prior conduct fits the federal enhancement. This can be an impossible task if records from the prior conviction are unavailable or when the records do not contain factual admissions by the defendant. In practice, rigorous application of Shepard allows judges to avoid applying mandatory sentencing enhancements in many cases and, thus, gives them greater discretion to craft sentences. As a result, Shepard, like Booker, allows judges to think critically about whether enhancements based on prior drug convictions actually serve any sentencing purpose. Judges may still decide to increase a sentence based on a defendant’s record ⎯ and indeed remain free to impose a substantial increase ⎯ but judges are no longer required to do so.

In Part III of the article, Russell explains the method for attacking these enhancements that are based on prior drug convictions. First, you determine whether the state statute (for the prior conviction) is broader than the federal enhancement (does the state statute criminalize a broader set of substances or conduct than the substances or conduct that trigger the federal enhancement?). Then, "[u]nder Shepard, if a discrepancy exists, the government bears the burden of producing documents from the prior case and establishing that the defendant admitted or the jury found that the offense involved conduct triggering the enhancement. The government often does not meet this burden." Russell also cites caselaw from the Second Circuit where the court has held that certain enhancements did not apply.

We have often discussed the importance of challenging prior convictions in state court, but it is even more important in federal court - the prior conviction could mean a life sentence for the client. Thus, for anyone practicing in federal courts, this article is a must read. Thanks to Doug Berman for bringing this article to my attention.

Iowa has a state constitution

Hat tip to Sarah Johnson, who forwarded info about State v. Cox, No. 07–2083 (Iowa April 30, 2010), where the Iowa Supreme Court holds that a state statute that allows introduction of propensity evidence in sex offense prosections violates the state constitution's due process clause.

There is a lot of great langauge in this decision regarding the pernicious effect of prior bad acts evidence that might be useful in a Kansas case dealing with typical prior-bad acts evidence.

Here is coverage on Simple Justice, which in turn links to coverage of the case on The Volokh Conspiracy.

Trial counsel should have moved to suppress statements

Rachel Pickering won in State v. Bowlin, No. 99,213 (Kan. App. April 30, 2010) obtaining a new trial in a Wyandotte County involuntary manslaughter prosecution. The prosecution stems from the death of an 8-year old girl in a house fire that investigators thought Mr. Bowlin may have started by fireworks. After a 3 hour, 11 minute interrogation, police obtained a statement from Mr. Bowlin that he may have shot a bottle rocket into the house.

The state charged Mr. Bowlin with reckless second-degree murder. During pretrial, defense counsel not only failed to challenge the voluntariness of the statements, he stipulated to their admission. After a bench trial, the district court convicted Mr. Bowlin of involuntary manslaughter. Before sentencing, the district court substituted counsel because he believed trial counsel (now a district judge) had been ineffective. New counsel filed a motion for new trial alleging ineffective assistance of counsel by failing to call certain witnesses and by allowing waiver of a jury trial. The district court rejected the IAC claim and imposed sentence.

On appeal, after reviewing the record and especially the interrogations, Rachel moved to remand for additional IAC claims related to the failure to challenge the admission of the statements. On remand, the district court held that Mr. Bowlin had not met the burden of showing deficient performance.

On appeal, the COA agreed that Mr. Bowlin made unequivocal and repeated requests for counsel during interrogation, but the officers did not cease questioning:

In this case, there can be no doubt that the officers understood that Bowlin had made a request for an attorney for assistance with the custodial interrogation. After Bowlin's equivocal statement, "I think I'm going to have to get a lawyer," the interviewing officer sought clarification of Bowlin's statement, received an affirmative response from Bowlin that he did need an attorney, and even went so far as to agree with Bowlin that he needed an attorney. Several minutes later, another interviewing officer further clarified that Bowlin wanted a lawyer "right now" during the custodial interrogation. Nevertheless, the officers did not cease Bowlin's interrogation and honor his request for counsel. Rather, the officers continued questioning and badgering Bowlin until 23 minutes after his first request for counsel, and after his legs had been shackled, he agreed that he still wanted to talk with the officers.

The decision includes lengthy quotes that detail the exact language and persistence of the officers. The COA held that any statements were the product of improper and coercive tactics:

The unmistakable message by the interrogators was that if Bowlin refused to confess to their theory of the case, the result would be a harsher charge and conviction for Jewell's death in the house fire. Throughout the interrogation, the officers were not interested in what Bowlin had to say about the events surrounding the house fire. They were intent on getting Bowlin to tell them what they wanted to hear and to confess to his involvement in the house fire. This became even more evident when the interrogators denied Bowlin his Fifth Amendment right to counsel. As their tactics became harsher and the interrogation extended on for 3 hours, the interrogators were able to wear Bowlin down and get him to admit that he had caused the fire. Such tactics were coercive and constituted police overreaching.

A review of the lengthy interrogation that took place in this case leads this court to determine that Bowlin's will was overborne and the overreaching police conduct was causally related to the confession.

Finally, the COA reviewed the evidence and the district court's decision in detail and rejected defense counsel's suggestion that admission of the damning statements obtained during the interrogation was "trial strategy":

Under the circumstances present in this case, we cannot dismiss as trial strategy defense counsel's decision to not even attempt to suppress the only statements from Bowlin himself admitting that he thought his rocket caused the house fire. Upon considering the trial court's heavy reliance on Bowlin's interrogation confession, we conclude that there is a reasonable probability that, but for defense counsel's deficient conduct, the result of the proceeding would have been different.

Great work by Rachel and remand counsel.

[Update: the state filed a PR on June 1, 2010. Rachel filed a cross-PR on June 11, 2010.]

[Further update: the KSC denied the petitions for review and the mandate issued on September 10, 2010.]