Public Defense

New judge in Douglas County

Posted on April 01, 2008
Here is the Governor's press release announcing her appointment of Peggy Carr Kittel to be district judge in Lawrence. Here is the Lawrence Journal-World article reporting on the appointment. She has been a pro tem district judge there for several years and fills the vacancy created by Stephen Six becoming Attorney General.

Tenth Circuit troubled by possible perjury

Posted on March 27, 2008
In U.S. v. Rangel, the Tenth Circuit took the unusual step of abating an appeal from a New Mexico drug prosecution so that Mr. Rangel could proceed on a 2255 petition dealing with allegations of perjured testimony. The Court acknowledged that such a procedure is "extraordinary...

Bush issues pardon in Kansas case

Posted on March 26, 2008
Here is a Topeka Capital-Journal article reporting that President Bush pardoned a White City farmer, who had pleaded guilty to federal fish and game violations in 1998 and received probation.There has sort of been a lot of recent comment on pardon practice recently around the blogosphere...

No attenuation [NOT FINAL]

Posted on March 24, 2008
Charles O'Hara won in State v. Wagner, No. 97,643 (Kan. App. March 21, 2008), reversing some Lyon County burglary convictions based on Fourth Amendment violations. Officers had stopped a car without probable cause and later obtained some confessions to the burglaries...

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Reduced charges at prelim

Posted on March 20, 2008
Kay Huff and Kip Elliot had some success during preliminary hearing in a Douglas County homicide prosecution. Here is the Lawrence Journal-World article reporting that the two clients were facing intentional second-degree murder charges, that the state asked to bind over on felony murder, but that Judge Fairchild would only bind over on reckless second-degree murder.

No jury waiver [NOT FINAL]

Posted on March 07, 2008
Washburn student intern Staci Lane and I won in State v. Neria, No. 97,050 (Kan. App. March 7, 2008), reversing a conviction in a Shawnee County drug prosecution. Although we lost on a suppression issue, the COA reversed the bench trial conviction due to failure to ever get a jury trial waiver on the record...

What's the hurry? [NOT FINAL]

Posted on March 07, 2008
B. Joyce Yeager won in State v. Huntley, No. 97,338 (Kan. App. March 7, 2008), getting a new trial in a Wyandotte County rape and aggravaed criminal sodomy prosecution. The COA reversed because the district court refused to grant a continuance to allow hiring an expert to evaluation the child witness' testimony:With regard to the district court's stated ground for denying the continuance because the expert assistance or testimony would be inadmissible because such matters are things "jurors normally know" or "are common sense" and would be inadmissible, we respectfully disagree...

Grand jury thinks it shouldn't have been called

Posted on March 06, 2008
Here is the Olathe News article reporting that when the grand jury called by petition in Johnson County to investigate possible abortion crimes returned no indictment, it also called for review of the statute by which it was called. In fact, there is no showing required to call a grand jury by petition under K...

Short list in Douglas County

Posted on March 03, 2008
Here is news release announcing the short list to fill the district court vacancy created by Stephen Six becoming attorney general a month ago: Pro Tem Judge Peggy Carr Kittel; Topeka attorney Justice King; and legal counsel for the Board of Tax Appeals, Trevor Wolhford...

Another Pilshaw reversal [NOT FINAL]

Posted on March 03, 2008
I don't regularly blog on probation-revocation appeals, but thought this was timely given Judge Pilshaw's recent and repeated disciplinary record (blogged about here and here). Sean Shores won in State v. Bennett, No. 96,591 (Kan. App. Feb. 29, 2008)(unpublished), reversing a probation revocation finding and remanding f0r a new decision before a different judge...

Improper reference to homosexuality is prosecutorial misconduct [NOT FINAL]

Posted on February 29, 2008
Rachel Pickering won in State v. Bloomquist, No. 95,995 (Kan. App. Feb. 29, 2008), getting a new trial in a Anderson County aggravated indecent liberties/criminal sodomy prosecution involving 78-counts. The COA reversed for cumulative error, but primarily focused on improper argument regarding Mr...

Improper restriction on cross-exam violates Confrontation Clause [NOT FINAL]

Posted on February 29, 2008
Reid Nelson from the Capital and Conflicts Appeals Office won in State v. Darrell Jackson, No. 94,578 (Kan. App. Feb. 29, 2008), obtaining a new trial in a Harvey County criminal sodomy/aggravated indecent liberties prosecution. During trial, the district court refused to allow the defense to cross-examine regarding the vicitim's sexual history...

IAC finding affirmed [NOT FINAL]

Posted on February 29, 2008
Linda Barnes-Pointer won in McHenry v. State, No. 97,202 (Kan. App. Feb. 29, 2008), affirming Judge Tuggle's grant of a K.S.A. 60-1507 motion and ordering a new trial in a Mitchell County rape/indecent liberties/sodomy case. The COA applied the same standard as it would to review of a denial of habeas relief--substantial competent evidence--and held that Judge Tuggle's findings regarding defense counsel's complete failure to investigate the state's witnesses or witnesses named by Mr...

Misdemeanor verdict in manslaughter prosecution

Posted on February 29, 2008
Here is a Topeka Capital-Journal article reporting that Michael Francis won a vehicular homicide verdict in a Shawnee County DUI-Manslaughter prosecution.

PD re-elected to district nominating commission

Posted on February 25, 2008
Here is the court's press release announcing that ADO Janine Cox won re-election to the Douglas County (Seventh Judicial District) Judicial Nominating Commission. This will be her second term. My only regret is that I live in the wrong county and therefore couldn't vote for her!

Commission recommends Pilshaw's censure

Posted on February 23, 2008
Here is the Wichita Eagle article reporting the the Commission on Judicial Qualifiactions has recommended public censure for Judge Pilshaw for misconduct stemming from a mur$der case. The article includes a link to a copy of the Commission's findings and conclusions...

Evidence of bias [NOT FINAL]

Posted on February 22, 2008
Rick Kittel and KU student Amy Hall won in State v. Scott, No. 96,879 (Kan. App. Feb. 22, 2008), gettting a new trial in an Atchison County prosecution for sale within 1000' of a school. Although the COA found sufficient evidence to support a conviction, the COA held that the district court improperly excluded some defense testimony:Scott contends that the trial court erred when it refused to admit testimony at trial that Soden [state's witness] was being criminally investigated for forging Scott's checks...

Improper pat-down [NOT FINAL]

Posted on February 22, 2008
Christina Waugh won in State v. Carson, No. 97,185 (Kan. App. Feb. 22, 2008)(unpublished), reversing a Lyon County drug conviction on Fourth Amendment grounds. Although the COA rejected claims regarding an improper car stop, improperly extended stop, and involuntary search of the vehicle, the COA held that the officer lacked reasonable suspicion to conduct a pat-down:In Carson's case, it is undisputed that the stop took place in warm weather,which meant that Carson was not wearing bulky clothing which could have concealed a weapon...

Lesser verdict in Lawrence

Posted on February 12, 2008
Here is a Lawrence Journal-World article reporting that Tom Bath won a misdemeanor verdict in a Douglas County DUI-Manslaughter and Leaving the Scene of a Fatality Accident prosecution.

Come and go at the ADO

Posted on February 11, 2008
Jennifer Conkling, who has been at the ADO for a couple of years now, has decided to go out into the real world. She is going to work with Carol R. Bonebrake here in Topeka. That firm does a lot of employment law and represents several small hospitals...

Exceeded scope of search warrant

Posted on February 07, 2008
Thanks to Kansas Federal Defender, who blogged (here) on United States v. Young, No. 07-4060 (10th Cir. Feb. 5, 2008), reversing a Utah drug conviction on Fourth Amendment grounds. See that blog for details. A nice case for both scope of search warrant analysis and good-faith exception analysis.

Kansas makes SL & P again

Posted on February 07, 2008
Here is a link to a recent Sentencing Law and Policy Blog entry where Professor Berman highlights a Kansas City Star article reporting on reduced recidivism rates in Kansas and possible links to recent legislation targeted at reentering persons. I have been in meetings occassionally with DOC and CC officers and have been impressed with their interest in actually helping people not reoffend...

Sixth Amendment violation requires suppression of statements

Posted on February 01, 2008
Matt Edge won in State v. Ventris, No. 94,002 (Kan. Feb. 1, 2008), obtaining a new trial in a Montgomery County agg robbery prosecution. The primary issue stemmed from law enforcement officers placing a snitch in a cell with Mr. Ventris who surreptitiously obtained statements all after Mr...

Enhanced sentence must be based on prior predicate offense

Posted on February 01, 2008
Michael Holland and Michael Holland II won in State v. Ruiz-Reyes, No. 95,056 (Kan. Feb. 1, 2008), getting a reduced sentence on a Reno County possession with intent to sell conviction. The COA had held that before a drug conviction could be enhanced based on a prior conviction, the prior conviction had to be entered before the instant offense (in contrast to the way that criminal history works)...

Competency to be extradited

Posted on February 01, 2008
Ron Evans from the Death Penalty Defense Unit won in State v. Patton, No. 98,470 (Kan. Feb. 1, 2008), reversing a Shawnee County district court order authorizing Mr. Patton's extradition to Florida to face capital murder charges. The main issue is whether there is any requirement that the subject of an extradition request be competent to help defend against that extradition...

Improper joinder [NOT FINAL]

Posted on February 01, 2008
Janine Cox won in State v. Coburn, No. 96,210 (Kan. App. Feb. 1, 2008), obtaining a second new trial in a Wyandotte County aggravated indecent liberties with a child prosecution. The COA majority held that the state improperly tried unrelated offenses together in the same trial:Under K...

Miranda suppression affirmed [NOT FINAL]

Posted on January 30, 2008
Michael Robinson won in State v. Allison, No. 98,341 (Kan. App. Jan. 18, 2008)(unpublished), affirming Judge Anderson's suppression of statements in a Harvey County drug prosecution. The COA noted that the only issue was whether questioning of persons detained after a search was "interrogation" for Miranda purposes:Applying [Rhode Island v...

Probationers still have Fourth Amendment rights [NOT FINAL]

Posted on January 29, 2008
Theresa Barr (former ADO) won in State v. Montgomery, No. 97,340 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Riley County possession of mephedrine conviction. The COA summarized the facts as follows:Montgomery agreed to enter a detoxification program as part of her probation program with Riley County Community Corrections (RCCC)...

Improperly extended stop [NOT FINAL]

Posted on January 28, 2008
I, along with Washburn student intern Hansel Cordeiro, won in State v. Fitzpatrick, No. 96,702 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Johnson County drug conviction. There were lots of claims regarding several stages of a car stop and resulting search of the back-seat passenger...

Manufacture sentencing win

Posted on January 24, 2008
I, along with student intern Melissa Schoen, won a partial victory in State v. Spangler, No. 96,326 (Kan. App. Dec. 21, 2007). reversing one conspiracy count and getting a remand for resentencing on the manufacture count. This sentencing issue involves a fairly new argument (post-McAdam) regarding manufacture sentencing...

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