Public Defense

Carl hangs up a shingle

Posted on January 12, 2010
Well, sad days around the ADO. Carl Folsom (co-author of the blog), has left to join Branden Bell in private practice in Lawrence. Carl started at the ADO in September 2005 and has had many big cases as an appellate defender, including several in 2009 like State v...

Acquittal in Sedgwick County agg arson case

Posted on January 12, 2010
My old PD colleague, Nika Cummings, won last week in State v. Pfeiffer, getting an acquittal on agg arson and four counts of arson (conviction on a couple of misdemeanors).

Petitions for Review granted January 2010

Posted on January 10, 2010
On January 7, 2010, the KSC granted defendants' petitions for review in the following criminal cases:Albright v. State, No. 102,454 (Kan. App. June 25, 2009)(unpublished)Issue presented:Improper dismissal of appealState v. Huerta, No. 101,438 (Kan. App...

McPherson acquittal in agg kidnapping case

Posted on December 19, 2009
Here is a Hutch News article reporting that David Harger won an acquittal in State v. Jackson, a McPherson County agg kidnapping/agg robbery/agg burglary prosecution.

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Parties stipulate to IAC at capital sentencing phase

Posted on December 14, 2009
Here is a Topeka Capital-Journal article indicating that the state and defense have agreed to a stipulation that Phillip Cheatham received ineffective assistance of counsel at the sentencing phase of his capital murder trial. We blogged about coverage of this case previously here.

Motive and intent evidence

Posted on December 11, 2009
Robert P. Eye and Elizabeth R. Herbert won in State v. Wells, No. 99,813 (Kan. Dec. 11, 2009), obtaining a new trial in a Riley County criminal sodomy prosecution. The KSC reversed due to improper admission of prior bad act evidence for "motive" and "intent...

You also have to prove how much it's worth [NOT FINAL]

Posted on December 11, 2009
Washburn student intern Katie Whitsitt and I won in State v. Reed, No. 101,165 (Kan. App. Dec. 11, 2009)(unpublished), obtaining a new trial in a Reno County criminal damage to property case. Ms. Reed was alleged to have thrown a hammer at a 2006 Chevy Silverado pickup truck, causing damage estimated by a shop to be $1,165...

Can't detain just because they have a dealer tag

Posted on December 09, 2009
Thanks to Tenth Circuit Blog for noting U.S. v. Pena-Montes, No. 08-2169 (10th Cir. Dec. 7, 2009), where federal public defender Stephen McCue won reversal and remand on Fourth Amendment grounds in a New Mexico federal illegal re-entry prosecution:Although the officer initiated the stop based on the reasonable belief that the vehicle lacked a license plate, after he pulled it over, he observed that it did, in fact, display a ?dealer tag? but continued the detention to question the vehicle?s occupants to determine whether the plate?s use was lawful...

They're back! Woo-hoo!

Posted on December 04, 2009
So glad to see Kansas Federal Defenders back in the blogosphere! What a brain trust keeping us up to date on federal case law and generally smart thoughts on criminal law/procedure! Yay!

Governor's budget cuts hourly rate for appointed counsel

Posted on November 25, 2009
The governor recently released his plan to balance the state's budget for fiscal year 2010. The expenditure changes for BIDS are described as follows:Add $173,163 for Assigned Counsel caseload; then reduce $686,456 to reduce Assigned Counsel hourly rate from $80 to $62...

Maybe you shouldn't assume the officer is telling the truth

Posted on November 25, 2009
I don't usually blog on license revocation proceedings, but I thought this was a pretty remarkable decision that Roger L. Falk won in Baconrind v. KDOR, with Judge Wheeler vacating an administrative license revocation based on failure to allow independent testing...

January 2010 KSC Docket

Posted on November 20, 2009
Here are the criminal cases on the KSC docket for January 25-28, 2010. 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...

Governor grants pardon

Posted on November 17, 2009
Here is a Lawrence Journal World article reporting that the KU Defender Project helped Samuel Jarvis Hunt obtain a pardon of his 1969 Sedgwick County robbery conviction. The article sets out the history and background of the case:For some observers, Hunt's pardon represents a righting of a wrong that highlighted tension in Kansas, and in the country, in the 1960s...

Marx strikes again

Posted on November 14, 2009
Michael C. Hayes won in State v. Jimeson, No. 102,158 (Kan. Ct. App. Nov. 13, 2009) (unpublished), affirming the district court's suppression of evidence from an illegal traffic stop. The officer in the case initiated a traffic stop after he observed Jimeson's motorcycle momentarily drift onto the shoulder of the road...

Will Kargus get a petition for review? [NOT FINAL]

Posted on November 13, 2009
Megan Herrington won in Kargus v. State, No. 100,852 (Nov. 6, 2009), affirming Judge Tatum's order granting Mr. Kargus relief on his claim of ineffective assistance of appellate counsel with regard to failure to file a petition for review on his behalf in his direct appeal...

Petitions for Review granted

Posted on November 10, 2009
On November 5, 2009, the KSC granted petitions for review in the following criminal cases:State v. Walker, No. 99,457 (Kan. App. Feb. 27, 2009)Issues presented:1. Whether there was reasonable suspicion for police to detain Walker2. Whether the extension of the investigatory stop was an illegal detention...

Speedy acquittal in theft case

Posted on November 02, 2009
Lacy Gilmour won recently in State v. Mitchell, getting an acquittal in a Sedgwick County theft prosecution in less than 20 minutes. Here is Lacy's decription of the case. Thanks to What the Judge Ate for Breakfast for the tip.

Permanently incompetent to stand trial

Posted on October 31, 2009
Lane Williams and Kirk Lowry from the Disability Rights Center of Kansas won in State v. Johnson, No. 96,526 (Kan. Oct. 30, 2009), affirming Judge Becker's dismissal of a Reno County DUI-manslaughter prosecution. This case has a fairly long history, as described in the opinion...

Unreasonable delay counts against State for speedy trial purposes

Posted on October 24, 2009
Scott C. Gyllenborg , of Gyllenborg & Dunn, P.A., won in State v. Harms, No. 100,159 (Kan. Ct. App. October 23, 2009) (unpublished), affirming the district court's order dismissing criminal charges against Harms based upon the State's failure to bring Harms to trial within 180 days of his arraignment as required by K...

Restrictions on cross-examination warrant new trial

Posted on October 22, 2009
Ron Wurtz, federal PD, won in U.S. v. Robinson, No. 08-3180 (10th Cir. Oct. 20, 2009), obtaining a new trial in a federal felon in possession prosecution. The issue prompting reversal was failure to allow access to an informant's medical records and prohibition on questioning the informant about mental health history:Six days before Robinson?s trial, the government?s star witness?the CI who purchased the gun from Robinson?was involuntarily committed to a mental health facility...

December 2009 KSC Docket

Posted on October 20, 2009
Here are the criminal cases on the KSC docket for December 7-11,2009. 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...

Suppression affirmed based on Marx

Posted on October 17, 2009
Wm. Rex Lorson won in State v. Sullivan, No. 101, 850 (Kan. Ct. App. Oct. 16, 2009) (unpublished), affirming the district court's suppression of evidence in a felony DUI case based on State v. Marx (blogged about here).At the suppression hearing in the district court, the arresting officer testified that he was following Sullivan's car, and he saw it weave within its lane, almost hit a curb, and cross the lane line one time...

Mandatory drug treatment is mandatory

Posted on October 13, 2009
Christina Waugh and Michelle Davis won in State v. Andelt, Nos. 98,699/98,665 (Kan. October 9, 2009), reversing the district court's denial of mandatory drug treatment in each case. Even though the defendant qualified for SB 123 treatment, the district court denied drug treatment in each case because the offenses were committed while the defendant was on parole...

Four trials is enough for Judge Tatum

Posted on October 11, 2009
Here is an Olathe News article reporting that Scott Toth won a judgment of acquittal from Judge Tatum in State v. Hudson, finally ending a Johnson County assault on a LEO prosecution after three hung juries and a mistrial based on misconduct.

Melendez-Diaz in Kansas

Posted on October 09, 2009
Rachel Pickering won in State v. Laturner, No. 96,086 (Kan. Oct. 9, 2009), obtaining a new trial in a Cherokee County drug prosecution. The appeal involved the constitutionality of K.S.A. 22-3437, which allows the prosecution to admit a lab report in lieu of live testimony...

Improper hearsay requires new trial

Posted on October 09, 2009
Carl Folsom won in State v. Kelley, No. No. 100,255 (Kan. App. Oct. 9, 2009), obtaining a new trial in a Sedgwick County rape prosecution. The reversal was based upon the state's admission of hearsay statements on the basis that it was planning to call the declarant, but then failing to call the declarant:To summarize, in a criminal proceeding, the first step in analyzing whether a statement is admissible hearsay is to determine whether the statement was testimonial...

Agg habitual sex offender sentences reversed

Posted on October 09, 2009
Shawn Minihan won in State v. Trautloff, No. 100,425 (Kan. Oct. 9, 2009), a Franklin County rape/agg crim sodomy case, remanding one count of sexual exploitation of a child for a new trial and vacating and remanding four life sentences without possibility of parole imposed under the aggravated habitual sex offender provisions of K...

Officers exceeded scope of search for safety purposes [NOT FINAL]

Posted on October 09, 2009
Washburn student intern Sean Whittmore and I won in State v. Vicki Johnson, No. 100,728 (Kan. App. Oct. 9, 2009), reversing a Sedgwick County drug conviction. Officers responded to a report of a possible burglary, but quickly learned the the woman involved was the tenant's girlfriend, who was there with permission...

Petitions for Review granted

Posted on October 06, 2009
On October 1, 2009, the KSC granted petitions for review for defendants in the following cases:State v. Jones, No. 97,696 (Kan. App. Sept. 19, 2008) (unpublished)Issues presented:1) whether defendant?s Confrontation rights were violated when alleged victim?s blood and urine test results were admitted into evidence as business records 2) whether endangering a child conviction is valid when two of the three alternative means are multiplicitous with other charges in the case 3) whether conviction for child endangerment is multiplicitous with convictions for aggravated criminal sodomy and furnishing alcohol to a minor for an illicit purpose4) whether district court erred by failing to instruct the jury on the lesser-included offense of criminal sodomy5) whether the use of defendant's criminal history violates Apprendi (Ivory issue)State v...

Sticking nose inside car constitutes search

Posted on October 05, 2009
Federal public defender Stephen P. McCue won in United States v. Montes-Ramos, No. 07-2027 (10th Cir. Oct. 1, 2009)(unpublished), obtaining suppression in a New Mexico federal possession of marijuana with intent to distribute prosecution. The Tenth Circuit addressed two issues: (1) is it a "search" for an officer to stick his nose just a few inches inside a car to see if he can smell drugs and (2) if so, was it unreasonable in this case...

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