Public Defense

New Jersey has a state constitution

Posted on August 19, 2010
Hat tip to FourthAmendment.com. In State v. Minitee, A-5002-06T4 (N.J. App. August 16, 2010), the New Jersey Superior Court, Appellate Division held that the New Jersey Constitution provides greater protection than the Fourth Amendment with regard to the automobile exception:We harmonize the seemingly inconsistent holdings in Martin and Pena-Flores by finding that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle and transport it to a secure location...

Chief Judge Rulon to retire

Posted on August 19, 2010
Here is the press release announcing that Chief Judge Gary Rulon will retire at the end of his term this upcoming January after 30 years of service on the bench.

Amen and amen!

Posted on August 16, 2010
Chief Judge Kozinzki from the Ninth Circuit, dissenting from denial of a motion for en banc hearing in United States v. Pineda-Moreno, No. 08-30385 (9th Cir. 2010), nicely articulates the gap between a lot of judges in our country and the real world:The panel authorizes police to do not only what invited strangers could, but also uninvited children?in this case crawl under the car to retrieve a ball and tinker with the undercarriage...

Surgical application of harmless error [NOT FINAL]

Posted on August 12, 2010
Rick Kittel and KU Defender Project student Drew Cummings won in State v. Brown, No. 101,819 (Kan. App. Aug. 6, 2010), obtaining a partial reversal in a Wyandotte County aggravated burglary prosecution. The substance of the issue involved a Boggs (blogged about here) issue:In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K...

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Chief Justice Davis passes

Posted on August 06, 2010
We had just blogged about Chief Justice Davis' retirement, when we learned the sad news that he passed away this week. Here is a Topeka Capital-Journal article announcing the services for Chief Justice Davis.

Rose wins seat on bench in Reno County

Posted on August 04, 2010
Here is a Hutch News article reporting that City Councilwoman Trish Rose defeated Magistrate Judge Randy McEwen for the district court seat being vacated by Judge Rome at the end of the year.

Chief Justice Davis retires

Posted on August 03, 2010
Here is the press release announcing that KSC Chief Justice Robert Davis has announced his retirement. As the release states, Chief Justice Davis has been battling health issues for some time now.Per the Kansas Constitution, Justice Lawton Nuss becomes Chief Justice immediately...

Even more great work by defenders on appeal

Posted on August 03, 2010
We try to update on most favorable appellate cases, but we often don't get notice of unpublished affirmances in state's appeals, because the ADO is usually not counsel of record. Here is a search of the first five months of 2010, which turned up a lot of great trial/appellate work by defenders...

Homicide acquittal in Hutch

Posted on July 31, 2010
Here is a Hutch News article reporting that Greg Bell won an acquittal in State v. Beard, ending a Reno County first-degree murder prosecution.

Indiana has a state constitution, part II

Posted on July 30, 2010
In Lacey v. State, No. 02A05-0910-CR-562 (Ind. App. July 27, 2010), the Indiana Court of Appeals relying on its state constitution holds that an unjustified violation of the "knock and announce" requirement related to execution of a search warrant requires suppression, notwithstanding the SCOTUS' differing view under the Fourth Amendment:Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a "no-knock" entry...

Insufficient alternative means results in reversal in kidnapping case

Posted on July 26, 2010
Former ADO Jocilyn Oyler won in State v. George, No. 97,679 (Kan. App. June 18, 2010), obtaining a reversal in a Leavenworth County rape/kidnapping prosecution. The jury was presented with the alleged alternative means that Mr. George confined a person with intent to "facilitate flight or the commission of any crime...

Gun charges dropped

Posted on July 24, 2010
Here is a Topeka Capital-Journal article reporting the Carl "Second Amendment" Folsom won dismissal of municipal charges of transporting a firearm in a vehicle in City of Topeka v. Roberts . As the article relates, the incident started because of investigation of Mr...

Oregon has a state constitution, part II

Posted on July 21, 2010
I recently posted on a Oregon state constitutional case, but this recent Oregon Supreme Court case has some great state constitutional law discussion, so I thought I would note it, too. In State v. Vondehn, No. SC S056371 (Or. July 1, 2010), the Oregon Supreme Court held that under its constitution, physical fruits of Miranda violations must be suppressed (rejecting the plurality SCOTUS decision in Patane):The state contends, however, that we should reach a different conclusion when the violation of Article I, section 12, is a "mere failure to provide Miranda warnings" relying on the reasons persuasive to the plurality in Patane: that such a failure does not violate a suspect's constitutional rights and that, given the important value of reliable physical evidence, the Miranda rule should not be extended to exclude it...

New trial in Lyon County Jessica's Law case

Posted on July 16, 2010
Carl Folsom won in State v. Magallanez, No. 99,694 (Kan. July 16, 2010), obtaining a new trial in three consolidated Lyon County sex offense prosecutions, including rape, aggravated indecent liberties, and aggravated criminal sodomy. Carl filed a brief with fifteen issues; the KSC held that five of the issues cumulatively required a new trial...

Gordon Atcheson appointed to COA

Posted on July 14, 2010
Here is the governor's press release announcing that he has appointed Gordon Atcheson, an Overland Park lawyer to fill the vacancy on the COA created by Judge Jerry Elliott's passing this spring.

New trial for IAC in Labette County

Posted on July 07, 2010
Dan Monnat and Paige Nichols won on a remand hearing in State v. Weimer, obtaining a new trial in a Labette County rape prosecution. At trial, a jury acquitted Mr. Weimer on three of five counts, but convicted on the remaining counts. On direct appeal, Mr...

Wichita Eagle to work with law students to investigate an innocence claim

Posted on July 06, 2010
Here is a What the Judge Ate for Breakfast entry noting that some Wichita Eagle reporters are working with some Washburn Law School students to do some investigation into a 1981 Sedgwick County murder prosecution and the defendant's claims of innocence...

Acquittal in Riley County

Posted on July 01, 2010
Here is a Hutch News article reporting on an acquittal in State v. Noel, ending a Riley County involuntary manslaughter prosecution. Anybody know the defender?

Oregon has a state constitution

Posted on June 29, 2010
Yet another hat tip to FourthAmendment.com. In State v. Smith, No. A138276 (Or. 2010), the Oregon Court of Appeals held that an encounter between an officer and a driver was more than a "mere conversation" and therefore implicated and violated Article I, section 9 of the Oregon Constitution...

Vermont has a state constitution

Posted on June 29, 2010
Hat tip to FourthAmendment.com. In State v. Brichard, No. 2008-477 (Vt. 2010), the Vermont Supreme Court applied Article 11 of its constitution to hold that a warrantless search of a backpack was illegal:Vermont law ordinarily requires suppression of evidence obtained as a result of an illegal search...

No apparent authority [NOT FINAL]

Posted on June 28, 2010
Gregory D. Bell won in State v. Kerestessy, No. 101, 851 (Kan. App. June 25, 2010), affirming Judge Keeley's suppression order in a Rice County manufacture prosecution. Based on items found in Mr. Kerestessy's car, officers sought to search his residence without a warrant...

Couple of criminal history wins [NOT FINAL]

Posted on June 28, 2010
Michelle Davis won in State v. Sanchez, No. 100,993 (Kan. App. June 25, 2010)(unpublished), obtaining a new sentencing hearing in a Sedgwick County criminal threat prosecution. The case involved classification of some California prior convictions:In California, an offense which provides a range of punishments resulting in either a felony or misdemeanor classification is referred to as a "wobbler" offense...

Acquittal in Wichita

Posted on June 23, 2010
Sarah Swain won an acquittal after a week-long trial in State v. Anton, ending a Sedgwick County rape prosecution. I haven't seen any coverage of this in the press.As an aside, I find it "interesting" that newspapers around the state regularly report on preliminary hearings and arraignments, which are almost always of little real import, but are quite sporadic in re stories of acquittals, even in big cases...

PD contempt citation reversed

Posted on June 19, 2010
Roger Falk won in State v. Gonzalez and Sweet-McKinnon, No. 102,400 (Kan. June 18, 2010), reversing and setting aside a contempt violation against Reno County Chief Public Defender Sarah Sweet-McKinnon. (We blogged about this case previously here and here...

Another bad jury trial waiver [NOT FINAL]

Posted on June 18, 2010
Rick Kittel won in State v. Dionicio, No. 101,780 (Kan. App. June 18, 2010)(unpublished), obtaining a new trial in a Montgomery County identity fraud proseuction. The COA held that sufficient evidence supported the district court's bench trial conviction, but further held that the record did not support waiver of the right to a jury trial...

September 2010 KSC docket

Posted on June 17, 2010
Here are the criminal cases on the KSC docket for September 13-17, 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...

Validity of testimony via television

Posted on June 16, 2010
Hat tip to Crime and Consequences for noting Justice Sotomayor's statement regarding the denial of cert in Wrotten v. New York. The issue of the whether Maryland v. Craig is good law after Crawford is one that we have litigated occassionally (blogged about here)...

New York has a state constitution

Posted on June 15, 2010
Hat tip to FourthAmendment.com. The New York Court of Appeals, in State v. Devone, 2010 NY Slip Op 04828 (N.Y. June 8, 2010), holds that, under its state constitution, and contrary to SCOTUS cases, a dog sniff of a vehicle is a search:Based on our State jurisprudence, therefore, whether a canine sniff constitutes a search is necessarily dependent upon whether it constitutes an intrusion into a place where a person has a reasonable expectation of privacy...

Couple of reversals for improper manslaughter instructions [NOT FINAL]

Posted on June 14, 2010
Michelle Davis won in State v. Bates, No. 100,681 (Kan. App. June 4, 2010)(unpublished), obtaining a new trial in a Sedgwick County intentional second-degree murder proseuction. Mr. Bates, a juvenile being prosecuted as an adult, was originally charged with premeditated first-degree murder...

Even the cop didn't fear for her safety [NOT FINAL]

Posted on June 12, 2010
Washburn student intern Katie Whitsitt and I won in State v. Shaffer, No. 101,668 (Kan. App. June 11, 2010)(unpublished), reversing a Sedgwick County possession conviction. The case stemmed from a public safety stop after officers thought Ms. Shaffer walked across the street in an odd fashion...

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