Public Defense

Pattern Instruction for Cross-Racial Eyewitness Identifications

Posted on May 12, 2008
Below, you will find a model instruction on cross-racial eyewitness identifications that was proposed by the Criminal Justice Section of the American Bar Association?s Committee on Rules of Criminal Justice, Evidence, and Police Practices. In January, the committee adopted a resolution to encourage judges to give the following model jury instruction in cases where an eyewitness and the defendant are not the same race:In this case, the defendant, _______________ (insertname), is of a different race than ________________(insert name of identifying witness), the witnesswho has identified [him] [her]...

They wouldn't go away!

Posted on May 08, 2008
Thanks (again) to Paige Nichols for tipping me off to this Tenth Circuit case. John T. Carlson, a federal public defender in Denver, won in U.S. v. Reeves, 07-8028 (10th Cir. May 7, 2008), reversing a Wyoming drug conviction based on an illegal seizure of Mr...

Welcome Carl!

Posted on May 08, 2008
I'm glad to announce that Carl Folsom, my colleague at the ADO, has agreed to join me as co-contributor to this blog. Carl came to the ADO after graduating from KU and the Kansas Defender Project. He is interested in focusing on potential new issues in this blog a little more...

Judicial vacancy in Shawnee County

Posted on May 07, 2008
Here is the news release seeking nominations for an upcoming vacancy on the Shawnee County District Court. Applications are due June 6, 2008, so get on it Shawnee County judicial wannabees! The vacancy will occur due to Judge Conklin's upcoming retirement.

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Kansas Death Penalty Focus blog shuts down (for now)

Posted on May 05, 2008
Sad to see that Kansas Death Penalty Focus decided to call it a day for now. I certainly understand the reasoning, but was glad to have a Kansas blog out there sort of devoted to that area. I hope that they decide to re-focus sometime in the not too distant future.

Keep me up to date

Posted on May 02, 2008
You may have noticed an upsurge in verdict reports. Please keep me up to date if you get a good verdict or other litigation result (i.e. suppression order, dismissal, 1507 result, whatever). Let me know the case caption, county, and any funny/disturbing facts about the case and I will let everyone else that reads this blog (all five of you) know...

Lesser on agg robbery

Posted on May 02, 2008
Mark Orr won a great verdict in State v. Gould, a Sedgwick County aggravated robbery prosecution. Client admitted theft, but denied robbery. Jury returns verdict of guilty of misdemeanor theft, given as lesser.

Not guilty in Lawrence

Posted on May 01, 2008
Branden Bell won in State v. Ediger, getting an acquittal in a Douglas County aggravated battery prosecution. The jury took less than an hour to acquit after a day-long trial.

Jury hangs on main charge in Reno County

Posted on May 01, 2008
Here is a Hutchinson News article reporting that a jury hung on four drug charges, including possession with intent to sell within 1000 feet of a school, only convicting of one count of obstruction. It was State v. McCoy, a Reno County case. Janis Knox, from the public defender office was the defense attorney...

I'm ineffective!

Posted on April 30, 2008
Alice White from the Kansas Defender Project won a 1507 motion in Mattox v. State, 07 C 816 (April 23, 2008) on grounds of ineffective assistance of appellate counsel. I represented Mr. Mattox on his direct appeal, which included a couple of statement suppression issues...

If at first you don't succeed . . .

Posted on April 30, 2008
Here is a AP article in the Topeka Capital-Journal reporting that a second jury hung on murder charges in a Stanton County murder prosecution. The article reports that the jury was split this time 7-5 (not saying which way). Kurt Kerns and Dan Monnat represent the co-defendants...

Why can't a jury acquit on greater and hang on the lesser, part II

Posted on April 29, 2008
Thanks to Paige Nichols, who alerted me to the fact that Jean Gilles Phillips of the Kansas Defender Project won a 2254 petition in Tomlin v. McKune, 516 F.Supp.2d 1224 (D. Kan. Sep 25, 2007). I had blogged about this case in state court long ago here...

Acquittal in Sedgwick County

Posted on April 24, 2008
Chrystal Krier and Monique Centeno won in State v. Collins, getting acquittals on two counts of agg assault on a LEO. Apparently, the facts of the case involved Mr. Collins attacking a great dane with a knife (who had viciously attacked him first). Mr...

Long list for Johnson County judge

Posted on April 23, 2008
Here is an Olathe News article reporting on the applicants for the district judge vacancy to be created by Judge Russell's impending retirement. I don't really know any of these applicants, but if you do, and if you have an opinion about them, you should write to the nominating commission asap!

No exigent circumstances [NOT FINAL]

Posted on April 23, 2008
Kathleen Neff and William K. Rork, Wendie C. Bryan, and Kenneth B. Miller, won for co-defendants in State v. Mell, No. 98,725 (Kan. App. April 18, 2008), partially affirming Judge Sachse's suppression order in a Franklin County cultivation prosecution...

SW Kansas acquittals

Posted on April 16, 2008
In response to my inquiry, Lynn Koehn reports from the Garden City PD's office that she has been busy winning cases: In State v. Garcia, a Seward County agg robbery/agg burglary/agg assault/theft/crim damage prosection ends with jury verdict of misdemeanor assault (judge granted directed verdict on agg burglary and crim damage, jury acquits on all except lesser of assault)...

Fourth Amendment win [NOT FINAL]

Posted on April 16, 2008
Jennifer Conkling won in State v. Miller, No. 98,230 (Kan. App. April 11, 2008)(unpublished), reversing a Lyon County drug prosecution. Ms. Miller was a passenger in a car that was stopped for an expired tag. The car belonged to a "person of interest" in a drug investigation...

Lots of success in Shawnee County

Posted on April 11, 2008
Here is a Topeka Capital-Journal article reporting that Wendell Betts won in State v. Roberts, getting not guilty verdicts in a Shawnee County attempted aggravated robbery and aggravated battery prosecution. The newspaper article says the jury was only out 40 minutes, although my sources tell me it was more like 30 minutes...

Jury finds against Sedgwick County jail

Posted on April 08, 2008
Here is a Wichita Eagle article reporting that Mark Schoenhofer won a civil verdict against the Sedgwick County jail stemming from claims of excessive force. Are there other such verdicts against the Sedgwick County jail or other jails?

Judicial elections on the horizon

Posted on April 07, 2008
Here is a Wichita Eagle article reporting on some of the filings for candidates who will be running for district court judge in Wichita this fall. I was sort of wondering if there was any buzz in Sedgwick County and apparently the answer is yes. The filing deadline is still a way off, so expect more candidates.

Twenty five minutes to acquittal

Posted on April 04, 2008
Here is a Hutch News article reporting that Sarah McKinnon won an acquittal in a Reno County rape prosecution. The jury only took twenty-five minutes to reach a verdict after a two day trial. Judge Chambers had already granted a judgment of acquittal on an aggravated kidnapping charge...

Fourth Amendment claim is fundamental

Posted on April 04, 2008
Shawn Minihan won in State v. Poulton, No. 95,353 (Kan. April 4, 2008), reversing and remanding for further hearings on Mr. Poulton's Fourth Amendment claims. There were two searches that were considered in this appeal. The COA had already reversed convictions stemming from one of the searches (here is my blog entry on that case)...

Murder conviction overturned based on lack of jurisdiction

Posted on April 03, 2008
Lydia Krebs won in State v. Breedlove, No. 96,608 (Kan. March 28, 2008), vacating a Sedgwick County murder conviction based on lack of jurisdiction. In 1997, the state prosecuted Mr. Breedlove as an adult for felony murder for acts that occurred when Mr...

State really loses on interlocutory appeal

Posted on April 03, 2008
William Mahoney won in State v. Mitchell, No. 98,512 (Kan. March 28, 2008), affirming Judge McNally's order refusing to admit evidence surrounding a prior adjudication in a Wyandotte County criminal possession of a firearm prosecution, which was the tail wagging a fiirst-degree murder prosecution...

Teen to be tried as juvenile

Posted on April 03, 2008
Here is the Kansas City Star article reporting that Debra Vermillion won at a adult certification hearing in a Johnson County manslaughter prosecution. Judge Cameron order that the case will proceed in juvenile court, not adult district court.I'm frequently on the wrong side of these hearing (client certified for adult prosecution in murder cases)...

Can prior inconsistent statement be used as substantive evidence?

Posted on April 02, 2008
I saw this entry over at Appellate Review noting a split of authority on whether prior inconsistent statements can be used as substantive evidence. This issue comes up periodically in Kansas and I even saw it just in the last few weeks on some discussion boards...

When you find the drugs, probably not a voluntary encounter anymore [NOT FINAL]

Posted on April 02, 2008
Tom Lemon won in State v. Schultz, No. 98,727 (Kan. App. March 14, 2008)(unpublished), affirming Judge Braun's suppression order in a Shawnee County drug prosecution. The district court denied suppression of evidence and statements made before discovery of a large amount of marijuana, but suppressed statements made after the discovery based on lack of Miranda warnings...

No arrest, so no search incident [NOT FINAL]

Posted on April 02, 2008
Jessica Glendening of the Johnson County Public Defender Office won in State v. Murphy, No. 99,058 (Kan. App. March 21, 2008)(unpublished), affirming Judge Anderson's suppression order in a Johnson County drug prosecution. The case turned on a detailed analysis of whether Mr...

KSC rejects John Doe warrant

Posted on April 02, 2008
Rebecca Woodman won in State v. Belt, No. 95,575 (Kan. March 28, 2008), affirming dismissal orders in three counties involving "John Doe" warrants, warrants based on DNA. These orders ended sexual assult prosecutions in each county. Although the KSC accepted that such warrants could be valid, the "mere listing of DNA loci in the warrant or in a supporting affidavit cannot" identify a defendant with reasonable certainty:These cases from California and Wisconsin support the proposition that a warrant identifying the person to be arrested for a sexual offense by description of the person's unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional and statutory particularity requirements...

May KSC docket

Posted on April 01, 2008
Here are the criminal cases on the KSC docket for May 12-15. 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...

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