The Kansas Prosecutor The official publication of the Kansas County and District Attorneys Association Volume VI, No. 1, Spring 2009 2008-2009 KCDAA Board
Thomas R. Stanton Ann Swegle John Wheeler, Jr. President Vice President Director Reno County Deputy District Sedgwick County Deputy District Finney County Attorney Attorney Attorney
Melissa Johnson Mark Frame Michael Russell Director Director Director Seward County Assistant County Edwards County Attorney Wyandotte County Chief Deputy Attorney District Attorney
Chairs & Representatives
Justin Edwards CLE Committee Chair Assistant Sedgwick County District Attorney
Nola Tedesco Foulston NDAA Representative Barry Wilkerson Ed Brancart Sedgwick County District Attorney Director Past President Riley County Attorney Wyandotte County Deputy District Attorney The Kansas Prosecutor The official publication of the Kansas The Kansas Prosecutor County and District Attorneys Association The official publication of the Kansas County Published by the Kansas County and District and District Attorneys Association Attorneys Association, 1200 S.W. Tenth Avenue, Topeka, Kansas 66604. Phone: (785) 232-5822 Fax: (785) 234-2433 Volume VI, No. 1, Spring 2009
Table of Contents
President’s Column by Thomas Stanton...... 4 Our mission: The purpose of the KCDAA is to promote, Legislative Introduction by Representative Pat Colloton...... 6 improve and facilitate the administration of justice in the State of Kansas. KCDAA Member Hightlighs: New DAs Steve Howe and Chad Taylor For questions or comments about by Mary Napier...... 7 this publication, please contact the editor:
Mary Napier [email protected] KCDAA Milestones...... 10 (785) 783-5494 KSA 60-455 Changes Rules of Admissibility for Evidence of Prior Crimes Board of Editors or Civil Wrongs by Kristafer Ailslieger...... 12 John Settle Jerome Gorman Barry Wilkerson Mary Napier Charging Traffic Fatalities by Aaron J. Breitenbach...... 18 Advisory Council Angela Wilson Jess Hoeme Jared Maag HGN: The Eyes Have It by Karen C. Wittman...... 20
No Minor Matter: One Practitioner’s Look at Juvenile Jury Trials KCDAA Administrative Staff by Lara Blake Bors...... 26 Steve Kearney, Executive Director Leisa Shepherd Kellie Kearney Richard Samaniego Kari Presley NDAA Spring Report by Kim T. Parker...... 28
KCDAA Spring 2009 Conference...... 30
This magazine is dedicated to professional prosecutors across the state of Kansas for public information. The KCDAA and the members of the Editorial Board assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Kansas Prosecutor. We welcome your comments, suggestions, questions, information, etc. About the Cover From time to time, The Kansas Prosecutor will publish The Sherman County Courthouse is located articles dealing with controversial issues. The views at 813 Broadway in Goodland, KS. What is expressed in The Kansas Prosecutor are those of the authors now Sherman County, named after General and may not reflect the official policy of the KCDAA. Send William T. Sherman, was, in its earliest history, correspondence to: The Kansas Prosecutor editor, 1200 S.W. a part of the great grazing pasture of the huge Tenth Avenue, Topeka, Kansas 66604 or e-mail Mary Napier herds of American Bison. There is no evidence at [email protected]. of Indian Settlements before white men came to settle. The early settlers in Sherman County © The Kansas Prosecutor All rights reserved in 1885-1886 started towns in or near the center of the county. Each of these small towns vied Photocopying, reproduction or quotation is strictly for the title of county seat, but the coming of prohibited without the written consent from the publisher or the Rock Island Railroad across the center of Editorial Board. Unsolicited material and/or correspondence the county had much to do with the end of the cannot be acknowledged or returned, and becomes the ‘county seat war’. property of The Kansas Prosecutor. Photo by John D. Morrison, Prairie Vistas Photography President’s Column by Thomas Stanton, KCDAA President Deputy District Attorney, Reno County District Attorney’s Office
KCDAA Legislative Issues and Conference Update
Spring is upon us, and with it the end of another finding that the controlled substance was transported legislative session. There were many issues of within a motor vehicle. importance to prosecutors raised in this session, and The KCDAA submitted Senate Bill 67 to amend many others for which we were asked to comment. K.S.A. 21-3437 to address issues prosecutors had Here are some of the issues we addressed on behalf regarding the law on mistreatment of a dependant of the KCDAA this session. adult. Unfortunately, this bill died in committee. Senate Bill 17 would have required the video However, the legislation remains viable for next recording of all felony interrogations. We opposed year. this legislation because of the burden it would The legislature established the Prosecutor’s have placed on law enforcement officers in the Training Fund in 1982, using fifty cents of every field. We also argued that a statutory requirement docket fee on cases handled by prosecutors. The that all interrogations be videotaped could be used amount was increased to one dollar in 1987. There by defendants to suggest wrongdoing by officers has not been an increase in this fund since 1987. when none was present. The requirement would Senate Bill 68, which was one of our legislative have resulted in juries being left with an impression priorities, will double that amount to two dollars, that any non-video-recorded statement was legally allowing us to provide better training programs to all insufficient and unreliable. prosecutors. Senate Bill 19 will allow prosecutors to carry We took a position in opposition to Senate Bill concealed firearms upon fulfilling certain training 208, which would have eliminated the death penalty requirements. Prosecutors will not be allowed in Kansas. The proponents of the bill presented it as to carry firearms in the courtroom, and we never a cost-saving measure. However, there were many suggested we should do so. provisions in the legislation that were contrary to the The substitute for Senate Bill 28, if passed, safety of Kansas citizens. The bill has been referred will accomplish several goals. First, it will amend to the Judicial Council. Any prosecutor wishing K.S.A. 8-1568 (flee or elude a police officer) to weigh in on this legislation should contact the by defining several terms, and by redefining a Judicial Council. violation of subsection (a) of the statute as a class I proposed Senate Bill 281, which was designed B misdemeanor for the first offense, a class A to resolve the conflict between K.S.A. 21-4611(c) misdemeanor for a second offense, and a level nine and K.S.A. 21-4729 regarding the length of person felony for a third or subsequent offense. All probation for level four drug felonies, which was violations of subsection (b) of the statute remained the subject of State v. Holt, 39 Kan.App.2d 741. defined as level nine person felonies. The proposed The bill, which was later amended into House Bill statute would also expand K.S.A. 21-3419 (the 2097, increases the presumptive term of probation criminal threat statute) to include not only causing for defendants eligible for SB123 treatment to 18 the evacuation of a building, but also circum- months. The legislation will go into effect on July 1, stances where the threat resulted in a lock down 2009. or disruption of regular, ongoing activities. This The legislature was faced with several bills bill would also provide for the suspension of the intended to modify the DUI laws. The measure driver’s license of those convicted of possession of which passed (House Bill 2096) will create a DUI controlled substances if the jury makes a specific Commission to study these various proposals. The Kansas Prosecutor Spring 2009 House Bill 2098, which has passed both houses, in a conference committee before full passage of clarifies the language of K.S.A. 21-3523 to set the measure. If passed, the new statute will go into two age classifications for the crime of electronic effect as of its publication in the Kansas Register. solicitation as between the ages of 14 and 16, These are just a few of the measures we have and under the age of 14. The bill also adds the worked on in this session. I wish to thank all the crimes of aggravated trafficking under K.S.A. 21- Board members, the Legislative Committee, and 3447(a)(1)(B) and (a)(2), and electronic solicitation Kearney and Associates for all the hard work toward under K.S.A. 21-3523 to the list of crimes protected our goals this session. by the rape shield statute (K.S.A. 21-3525). House Bill 2233, which has also passed both KCDAA 2009 Spring Conference houses, creates a one-year statute of limitations On another note, I would like to encourage for the withdrawal of a guilty plea, subject to all members of the KCDAA to attend the 2009 an exception to prevent manifest injustice. This Spring Conference to be held Thursday and provision is similar to the limitation found in K.S.A. Friday June 18 and 19, 2009. The conference will 60-1507(f). HB 2233 also addresses the selection of feature Paul Greenwood, the head of the Elder alternate jurors. Abuse Unit for The San Diego District Attorney’s House Bill 2250 amends K.S.A. 60-455 to allow Office. Greenwood has been in practice for 29 evidence of prior crimes in sex offenses to deal years, and comes to our conference as a highly with the issues raised in State v. Prine. The statute respected prosecutor. The conference promises to be would be considerably modified to allow introduc- interesting and educational. tion of prior crimes evidence in cases of sexual Thank you again for giving me the opportunity assault, and has passed both houses as of the writing to serve you. See you at the conference. of this article. Hopefully, there will be a short stay
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Spring 2009 The Kansas Prosecutor 5 Legislative Introduction by Representative Pat Colloton Meet Representative Pat Colloton, Chair of House Corrections and Juvenile Justice Committee
Representative Pat Colloton’s Chance Act, which will provide criminal history of the offender. To legislative district covers parts of money to states for re-entry initia- this end, crimes that result in loss Leawood and Overland Park. She tives. Pat currently serves as a of life and violent crime against is an attorney who is a member of liaison between the Justice Center persons would receive the greatest the bar and has practiced law in the and the Kansas Re-entry Council sentences. Overall, more crimes are states of Kansas, Illinois, New York, and is a member of the Kansas in presumptive imprisonment or PIB Massachusetts, and Wisconsin. Her Sentencing Commission. areas of the grid, but some, at lower legal career includes work in the The Kansas Sentencing criminal history levels, may be for Civil Rights Division of the Justice Commission, in collaboration with shorter periods of time. The drug Department in Washington D.C., a the Kansas Recodification Commis- grid has been folded into the non- Wall Street law firm in New York, sion, has recommended criminal drug grid and the number of months and a large law firm in Milwaukee. sentencing changes in an effort to of incarceration reduced for first- Representative Colloton make penalties more proportional time offenders. Drug quantity sold received her undergraduate degree for various categories of crime. or distributed would be considered in in chemistry and psychology and her Following the original Legislative severity, and rules for enhancement law school degree from the Univer- intent of the Kansas Sentencing would be consistent with present sity of Wisconsin. She worked for Guidelines, and recommendations non-drug enhancement rules. Drug Eli Lilly in Indianapolis as a research of a 2004 Vera Institute of Justice sales, distribution, and manufac- organic chemist prior to attending study, which identified areas in turing would be designated person law school. In the House of which sentencing is dispropor- felonies, and would result in more Representatives, Pat serves as Chair tionate, the Commission prioritized severe penalties for repeat violations. of the Corrections and Juvenile sentence severity in the following Recommendations for drug felony Justice Committee, a member of the order of societal interests: protec- length of sentence have been made Judiciary Committee, and is Chair tion from physical and emotional proportional to the quantity of drug of the Joint Committee on Correc- harm, protection of private and involved in sale, cultivation, or tions and Juvenile Justice Oversight. public property rights, and protec- manufacture. The proposed changes Representative Colloton is also a tion of integrity of government are contained in HB 2332. member of the Council of State institutions, public peace, and public It would be very helpful to Governments National Task Force morals. In addition, the Commis- the legislative process if county on Justice and Safety, the Legal Task sions’ recommendations include one attorneys, district attorneys, and Force, and serves on the Executive sentencing grid, additional presump- members of the judiciary or defense Committee of the Board of Directors tive imprisonment border (PIB) council would take the time to for the Justice Center in Washington boxes, fewer presumptive probation review HB 2332 and give comments D.C. areas, and underlying prison or suggestions regarding the In her position on the board of sentences of at least 12 months for proposed changes to the Corrections the Justice Center, she collaborates all felonies. and Juvenile Justice Committee. with re-entry programs throughout In determining severity levels The bill can be accessed at www. the country. The Justice Center and length of sentence, the Commis- kslegislature.org and comments can was instrumental in the drafting sion considered the degree of be e-mailed to pat.colloton@house. and passage of the federal Second harm to the victim as well as the ks.gov. The Kansas Prosecutor Spring 2009 KCDAA Member Highlights: New District Attorneys Steve Howe and Chad Taylor by Mary Napier, Editor, Kansas Prosecutor
In 2008, two district attorney races received with the Attorney quite a bit of media coverage; the race for Johnson General’s office County DA and the race for Shawnee County DA. and the Shawnee The Johnson County DA’s office has about 120 County District paid and volunteer staff including 31 prosecutors. Attorney’s office. They handle approximately 7700-8000 cases a year. Upon graduation, The Shawnee County DA’s office consists of 60 he was hired by the employees - 23 attorneys, 29 staff members, and Shawnee County eight interns. In 2008, 1,943 cases were filed in the DA and worked Shawnee County DA’s office, but in 2009, the office there for two and is expecting to file 2,500-3,000 cases. a half years before In January 2009, Steve Howe was sworn in as moving to the Johnson County DA, and Chad Taylor was sworn Johnson County in as the Shawnee County DA. Since they are both DA’s office. After 15 Steve Howe KCDAA members, I wanted to share with you some years in the Johnson information about their education, experience, and County DA’s office, he took a two-year hiatus and why they wanted to become district attorneys. worked at the Jones Law Firm doing civil litiga- tion before deciding to run for the DA position in Johnson County DA Steve Howe Johnson County. As a child, Steve Howe moved around a lot “After leaving, I was amazed how much I because of his father’s job, but he considers himself missed the job,” said Steve. “Being a prosecutor a Kansan as he spent eight years in Salina and makes you feel like you can make a difference in the graduated from Salina South High School. He community. I have a passion to make a difference, then went on to attend Washburn University and so putting away the bad guys is part of that passion.” graduated with degrees in criminal justice and This was Steve’s first time campaigning, and political science in 1985. Halfway he had to go through a primary and through college, Steve decided to general election. The main strategies focus on a career in law enforce- of his campaign included profes- ment or prosecution. In order to sionalism, public safety, and public decide which career he wanted to trust. He thought citizens in Johnson pursue, he took an internship in County had lost faith and trust in law enforcement. That helped him the DA’s office, so those issues were decide that becoming a prosecutor very important to him. During the was a better match for his skill set. campaign, Steve particularly enjoyed “I enjoyed the idea of litigating meeting people and discussing issues cases in court and the arguments they thought were important. associated with it,” said Steve. “It was a lot of hard work, but “Also, as a prosecutor, I still got I met a lot of friendly people going to work with the law enforcement door-to-door and engaging in discus- community and be a cop in a way.” sions,” said Steve. “Going door-to- So, after college, his next door was really energizing for me.” step was Washburn’s School of After a long continuous Law, where he graduated in 1988. Steve Howe on the campaign, Steve won the election During law school, he interned campaign trail. and was sworn in on January 12.
Spring 2009 The Kansas Prosecutor Since taking the position, he has been filling staff Shawnee County DA Chad Taylor positions, trying to change the atmosphere in the Chad Taylor has lived in Kansas most of his office, reviewing policies and procedures, and trying life. He grew up on a family farm in Silver Lake to restore trust in the DA’s office. and graduated from Silver Lake High School. After “I have been warmly received by all the entities high school, he attended the University of Kansas we work with including the county government and and received a Bachelors of Science in Accounting law enforcement, so it is very rewarding to get that and Business Administration. He then went on type of response,” said Steve. to receive his law degree from the Chicago-Kent As the Johnson County DA, Steve will handle College of Law. high profile cases, some abusive dependent elder While attending law school, Chad was focused adult cases, and he will target career criminals and on tax law. He didn’t have any interest in criminal gang violence. He thinks the biggest challenge with law or being a prosecutor until he signed up for a his job is juggling a busy schedule. He explained criminal law clinic. During the clinic, he was able to that it forces you to be really organized, which he work on criminal cases and square off against Cook learned a lot about during his campaign. Steve County prosecutors. That experience made him thinks the best thing about his position is the sense realize that he wanted to make his living practicing of satisfaction from working with other community law in a courtroom. groups within the criminal justice system to make a After law school, Chad soon returned to Kansas difference in the community and provide direction and started his own practice in Topeka in December in combating crime. 2001. While having his own practice, he handled a In the future, Steve’s goals include working with diverse caseload that included corporate law, estate law enforcement, community outreach, seeking and trust planning, and more and more criminal law. community and public comments, and always acting “Being a solo practitioner is demanding, but I professionally. While working with law enforce- will be forever grateful for the experience,” said ment, he will target career criminals and gang Chad. “Running my own practice forced me to violence, which are the biggest threat to community be disciplined and appreciate the importance of and public safety. Through community outreach accountability and self-reliance; lessons that have and speaking to the public, Steve hopes to educate served me well since becoming the Shawnee County them on crime prevention. By seeking community DA.” and public comments regarding issues and concerns, Chad decided to run for the DA position because Steve hopes to rebuild some trust and continue to it seemed like the best way he could help the county. strengthen it. Steve takes acting professionally very As he grew up, set up his law practice, got married, seriously, so that will always be one of his goals. and made a home in Shawnee County, he watched as Steve has been a member of the KCDAA for the county struggled with crime, drugs, and gangs. a number of years as an assistant DA and now as He became concerned about where the county was DA. He believes that the KCDAA plays an active headed, and he wanted to do something before the role in helping prosecutors around the state, and challenges facing the community became unmanage- he believes that the KCDAA is very important in able. So, he took direct action to combat the coordinating efforts for and against legislation. problems by running for Shawnee County DA. Steve looks forward to establishing relationships Throughout Chad’s campaign, his goal was to with experienced and new prosecutors throughout build trust. He thought the best way to build trust the state through the KCDAA. was through honesty and hard work, so he knocked Steve is married to his wife, Cyndi, and they on doors, met with community and neighborhood have four kids. When he is out of the office, he is associations, raised money, spoke at forums, etc. He active in sports and in his church. If he ever has wanted people to watch him during his campaign any free time, he likes to go fishing with his friends. and believe that he “would bring the same level of integrity and hard work to the District Attorney’s The Kansas Prosecutor Spring 2009 office.” One of the “I’ve got an office full of talented prosecutors, things Chad enjoyed but without leadership and structure, my prosecutors about the campaign can’t do their job,” said Chad. “At this moment, my was meeting new primary responsibility is to make sure that my staff people. has the necessary resources to do their job and that “Going door- nothing is preventing them from seeking justice in to-door in Shawnee Shawnee County.” Count cemented Chad is a member of the Topeka Bar Associa- my connection with tion, Kansas Bar Association, and the American the community Bar Association, and now he is a member of the that I am now KCDAA. He believes that associations like the representing and KCDAA are important because they have a wealth opened my eyes to of institutional knowledge, and associations can the problems people watch issues in the legislature that are important to Chad Taylor here in Shawnee prosecutors. In addition, he finds it immeasurably County face on a helpful to be able to discuss problems, solutions, and daily basis,” said Chad. “Those experiences and strategies with other county and district attorneys. conversations have stuck with me.” Chad lives in Topeka with his wife, Karily, and So far as Shawnee County DA, Chad’s experi- their three dogs and four cats. In his spare time, he ence has been very positive, even though his office enjoys riding his motorcycle, working on his family has challenges both internally and externally. He farm in Silver Lake, fishing, and shooting. has been encouraged by the reception he has received from law enforcement and other state and local agencies that his office works with. And, he feels confident that the relation- ships between his office and those agencies will continue to be strengthened each day. As Shawnee County DA, Chad’s main focus will be on restoring professionalism and accountability to the office, while he assumes responsibility for appellate cases that go before the Kansas Supreme Court and some homicide cases. Chad and his wife Karily
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Spring 2009 The Kansas Prosecutor 9 KCDAA Milestones
New Attorneys Ford County Attorney’s Leavenworth County Office Attorney’s Office 18th Judicial District Kevin O’Keefe joined Todd Thompson has taken District Attorney’s Office the office of the Ford County over the position of County Tyler J. Roush has joined the Attorney as an assistant county Attorney for Leavenworth County staff effective January 5, 2009 attorney in January 2009. Kevin after winning in the last election. as an Assistant District Attorney graduated with a Bachelor of Arts Todd hired John Bryant as Deputy assigned to in political science and history County Attorney. John left the Traffic from Rutgers University in 2005. the Wyandotte County District Division. Tyler He then received his law degree Attorney’s Office after nearly was formerly from the Washburn University eight years of service to take the an associate School of Law. position. with Brown He was admitted & James, P.C. to the Kansas in St. Louis, Bar in 2008. He Pratt County Attorney’s Missouri. Tyler Roush has since taken Office the New Jersey Gaten Wood has joined state bar exam the office of the Pratt County and is awaiting Sarah Foster Tracy has joined Attorney. He received his admittance. the staff effective January 5, 2009 Kevin O’Keefe undergraduate as an Assistant District Attorney degree at Kansas assigned to the Traffic Division. State Univer- Sarah has prosecutorial experience Franklin County sity and his with the City of Overland Park, Attorney’s Office Juris Doctorate Kansas and most Catherine Decena has joined from Oklahoma recently was the Franklin County Attorney’s City University with the Law Office as Assistant County School of Law in Offices of Eldon Attorney. Catherine is a 2008 Gaten Wood December 2008. L. Boisseau in graduate of KU Law. Federal and State court insurance Shawnee County District defense litiga- Johnson County District Sarah Tracy tion. Attorney’s Office Attorney’s Office New attorneys in the Shawnee New attorneys in the Johnson County DA’s office include: Justen P. Phelps has joined County District Attorney’s office DA Chad Taylor the staff effective January 5, 2009 include: Jess Hoeme as an Assistant District Attorney DA Stephen Howe Stephen Hunting assigned to Megan Fisher Christine Ladner the Juvenile Ann Henderson Mary Mattivi Division. Justen Amory Lovin Kelly McPherron was formerly an Vanessa Riebli (returned to the Matt Patterson Assistant County office after a 2-year hiatus) Jacqie Spradling Attorney with the Cynthia Waskowiak Crawford County Attorney’s office in Pittsburg, Justen Phelps Kansas. 10 The Kansas Prosecutor Spring 2009 KCDAA Milestones
Wyandotte County from Kansas of service in the AG’s Criminal District Attorney’s Office University Division. He will be relocating School of Law in Shawn Boyd is a new to Rio Rancho, New Mexico, May 2008. He Assistant District Attorney in where his wife accepted a position was previously the Wyandotte County District with the federal courts. He hopes employed by Attorney’s Office. He started to continue his criminal justice the Johnson in March 2009.He received his career in his new location. County District undergraduate degree from Baker Kevin said, “It has been a Attorney’s office University Mark Menefee great honor to have served as a as an intern. and graduated Kansas prosecutor on the staff from Washburn of the past four Kansas Attorney Law in May Generals, and both an honor and a 2008. He was On the Move pleasure to have had the opportu- previously nity to work with so many terrific prosecutors and law enforcement employed by Victor Braden, an Assistant Ruskin in the officers across the state of Kansas. Attorney General for the State of From the professionalism and Accounting Kansas deployed to Afghanistan Shawn Boyd Department. hard work I have seen displayed for one year. Vic is a Colonel in by so many of you over the years, the Kansas Army National Guard. I know Kansas will be in good Mark Menefee is a new hands. The best of luck to all of Assistant District Attorney in you and keep fighting the good the Wyandotte County District fight.” Attorney’s Office. He started in At the end of May 2009, March 2009. He received his Kevin Graham will be leaving undergraduate degree at Kansas the Kansas Attorney General’s University in 2003 and graduated Office after almost nine years We want to share your news! If you have something you would like to share with the KCDAA membership, please keep us informed.
We’d like to publish baby announcements, new attorneys, anniversaries, retirements, awards won, office moves, if you’ve been published or anything else worth sharing with the KCDAA!
Information submitted is subject to space availability and the editorial board reserves the right to edit material. Send your information to: KCDAA, attn: Mary Napier Feel free to submit digital photos 1200 S.W. 10th Avenue with your announcement! Topeka, Kansas 66604 (785) 232-5822 or e-mail: Next Deadline: [email protected] June 26, 2009
Spring 2009 The Kansas Prosecutor 11 K.S.A. 60-455 Changes Rules of Admissibility for Evidence of Prior Crimes or Civil Wrong by Kristafer Ailslieger, Assistant Solicitor General Office of Kansas Attorney General Steve Six
(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or During the current legislative session, the accident. Kansas Legislature enacted significant changes to K.S.A. 60-455, which sets forth the rules of (c) Subject to K.S.A. 60-445 and 60-448, and admissibility for evidence of prior crimes or civil amendments thereto, in any criminal action other wrongs (commonly referred to as “prior bad acts”). than a criminal action in which the defendant is These changes were a direct response to the Kansas accused of a sex offense under articles 34, 35 or 36 Supreme Court’s consistent limiting of admissibility of chapter 21 of the Kansas Statutes Annotated, and of prior bad acts evidence that began with State v. amendments thereto, such evidence is admissible to Gunby1 and culminated with the “strikingly similar” show the modus operandi or general method used requirement articulated in State v. Prine.2 The by a defendant to perpetrate similar but totally new K.S.A. 60-455 counters the Supreme Court’s unrelated crimes when the method of committing trend and significantly broadens the parameters for the prior acts is so similar to that utilized in the admissibility of prior bad acts evidence, making current case before the court that it is reasonable to relevance and probative value the test for admission conclude the same individual committed both acts. of evidence of prior sexual misconduct in sex crime prosecutions, and a reasonable similarity to the (d) Except as provided in K.S.A. 60-445, and touchstone in all other criminal cases to show modus amendments thereto, in a criminal action in which operandi or general method. the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas The New K.S.A. 60-455 Statutes Annotated, and amendments thereto, As a result of these recent legislative changes, evidence of the defendant’s commission of another K.S.A. 60-455 now reads (changes in italics): act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter 60-455. (a) Subject to K.S.A. 60-447, and to which it is relevant and probative. amendments thereto, evidence that a person committed a crime or civil wrong on a specified (e) In a criminal action in which the prosecu- occasion, is inadmissible to prove such person’s tion intends to offer evidence under this rule, The disposition to commit crime or civil wrong as the prosecuting attorney shall disclose the evidence to basis for an inference that the person committed the defendant, including statements of witnesses, at another crime or civil wrong on another specified least 10 days before the scheduled date of trial or occasion. at such later time as the court may allow for good cause.
Footnotes (f) This rule shall not be construed to limit the admission or consideration of evidence under 1. 282 Kan. 39, 144 P.3d 647 (2006). any other rule or to limit the admissibility of the 2. 287 Kan. 713, 200 P.3d 1 (2009). evidence of other crimes or civil wrongs in a 12 The Kansas Prosecutor Spring 2009 criminal action under a criminal statute other than described in subsection (a)(1)(B) and (a)(2) in articles 34, 35 or 36 of chapter 21 of the Kansas of K.S.A. 21-3447, and amendments thereto; Statutes Annotated, and amendments thereto. incest, as described in K.S.A. 21-3602, and amendments thereto; or aggravated (g) As used in this section, an ‘‘act or offense of incest, as described in K.S.A. 21-3603, and sexual misconduct’’ includes: amendments thereto, or involved conduct described in paragraphs (6) through (9). (1) Any conduct proscribed by article 35 of chapter 21 of the Kansas Statutes Annotated, (h) If any provisions of this section or the and amendments thereto; application thereof to any person or circumstances (2) the sexual gratification component of is held invalid, the invalidity does not affect other aggravated trafficking, as described in provisions or applications of this section which can subsection (a)(1)(B) and (a)(2) of K.S.A. 21- be given effect without the invalid provisions or 3447, and amendments thereto; application. To this end the provisions of this section (3) exposing another to a life threatening are severable. communicable disease, as described in subsection (a)(1) of K.S.A. 21-3435, and Historical Background amendments thereto; (4) incest, as described in K.S.A. 21-3602, and Historically, courts have taken a dim view of amendments thereto; evidence of prior bad acts. The general ban on such (5) aggravated incest, as described in K.S.A. 21- evidence dates back centuries.3 The reason behind 3603, and amendments thereto; this is not because such evidence is viewed as irrele- (6) contact, without consent, between any part vant, but rather the contrary: “it is said to weigh too of the defendant’s body or an object and the much with the jury and to so over-persuade them as genitals, mouth or anus of the victim; to prejudge one with a bad general record and deny (7) contact, without consent, between the him a fair opportunity to defend against a particular genitals, mouth or anus of the defendant and charge.”4 Nevertheless, common-law and the any part of the victim’s body; rules of evidence have allowed admission of such (8) deriving sexual pleasure or gratification evidence when the purpose is not to prove propen- from the infliction of death, bodily injury or sity, but some other relevant, material fact.5 physical pain to the victim; Prior to the enactment of K.S.A. 60-455 in 1963, (9) an attempt, solicitation or conspiracy to the common-law rule in Kansas was that evidence engage in conduct described in paragraphs of a prior, unrelated crime was inadmissible in a (1) through (8); or criminal prosecution.6 The prosecution could not (10) any federal or other state conviction of an “prove one crime by proving another.”7 There were, offense, or any violation of a city ordinan- however, exceptions to this general rule. Proof of a ceor county resolution, that would consti- prior crime was deemed admissible “in the discre- tute an offense under article 35 of chapter tion of the court . . . to prove identity of person or 21 of the Kansas Statutes Annotated, and crime, to prove scienter or guilty knowledge, to amendments thereto, the sexual gratifica- prove intent, to show inclination or motive, to prove tion component of aggravated trafficking, as plan, scheme or system of operation, to prove malice
3. The Tenth Circuit noted in United States v. Castillo, 140 S.Ct. 213, 93 L.Ed. 168 (1948). F.3d 874, 881 (10th Cir. 1998), that “[t]he ban on propen- 5. See State v. Myrick, 181 Kan. 1056, 1058-59 (1957); sity evidence dates back to English cases of the seven- United States v. Enjady, 134 F.3d 1427, 1430-31 (10th teenth century,” and cites Hampden’s Trial, 9 How. St. Cir. 1998). Tr. 1053, 1103 (K.B. 1684). 6. Myrick, 181 Kan. at 1058. 4. Michelson v. United States, 335 U.S. 469, 475-76, 69 7. Id.
Spring 2009 The Kansas Prosecutor 13 and to rebut special defenses.”8 Such evidence was admissibility of prior crimes evidence to prove plan also admissible to impeach a defendant on cross- or modus operandi. Prine held that evidence of a examination if he chose to testify.9 prior crime or civil wrong, to be admitted under In the view of the Kansas courts, the enactment K.S.A. 60-455 to prove plan, must be so “strikingly of K.S.A. 60-455 did not materially change the rule similar” to the crime charged as to amount to a and the case law as it had developed in Kansas.10 “signature” pattern or method of operation.18 However, two problems arose with the interpreta- The Court did this in order to achieve “analytical tion of K.S.A. 60-455 that “set the stage for rapid consistency” by settling on “uniform language to and enthusiastic development of various avoidance describe the degree of similarity that must exist” techniques.”11 First was the misinterpretation of the before such evidence is admitted.19 This was driven statute’s exemplary list of material facts for which by its recognition that the subject was plagued by prior bad acts evidence could be considered relevant, contradicting and irreconcilable case law.20 as an exclusive list.12 Second, was the “unnecessarily Chief Justice McFarland filed a vigorous harsh automatic reversal rule for cases in which a dissent. She acknowledged that some of the case limiting instruction was erroneously omitted.”13 As law regarding K.S.A. 60-455 was irreconcilable, the Kansas Supreme Court noted and laid out in detail but noted that it was not because the standard in State v. Gunby, this led to an expansive array of had proven to be unworkable as the majority case law providing for the admission of prior bad acts suggested, but because “there have been a series evidence independent of K.S.A. 60-455.14 In Gunby, of decisions by this court and the Court of Appeals the Court put an end to that. that have misinterpreted and confounded the The Gunby Court held that the admissibility “of original relevancy standard for admission of plan any and all” evidence of prior crimes or civil wrongs evidence.”21 According to the Chief Justice, the is governed by K.S.A. 60-455.15 The Court also held problem started in State v. Damewood,22 where the that erroneous admission of such evidence or the court commented that the prior crimes evidence failure to give a limiting instruction to the jury “is was strikingly similar to the crime charged.23 That not inevitably so prejudicial as to require automatic comment “was not a standard for admission, only reversal,” but rather, is subject to harmless error a comment on the quality of the evidence at issue analysis.16 While the Gunby decision represented in that particular case.”24 Nevertheless, subsequent a significant break with decades of case law, it courts latched onto that comment and it evolved did not necessarily serve as a call for legislative over time into a standard of admissibility that the action. After all, it was logically sound, and in truth, Prine Court ultimately made the standard. In Chief corrected decades of misinterpretation and unneces- Justice McFarland’s opinion, the proper standard, as sary exceptions and exceptions to exceptions. set out in Damewood, should be “that prior crimes Then came State v. Prine.17 Prine involved a evidence is relevant to prove plan where the method different aspect of K.S.A. 60-455. Whereas Gunby of committing the prior acts is so similar to that essentially hit the reset button and returned the utilized in the case being tried that it is reasonable statute to its original meaning, Prine solidified to conclude the same individual committed both misinterpreted dicta as a heightened standard for acts.”25
8. Id. at 1059. 18. 287 Kan. at 735. 9. Id. 19. Id. 10. State v. Wright, 194 Kan. 271, 274, 398 P.2d 339 (1965). 20. Id. at 729-35. 11. State v. Gunby, 282 Kan. 39, 54, 144 P.3d 647 (2006). 21. Id. at 740 (McFarland, CJ., dissenting). 12. See Id. at 53. 22. 245 Kan. 676, 783 P.2d 1249 (1989). 13. Id. at 53-54. 23. 287 Kan. at 740 (McFarland, CJ., dissenting) (citing 14. Id. at 52-56. Damewood, 245 Kan. at 682.) 15. Id. at 57. 24. Id. at 741 (McFarland, CJ., dissenting.) 16. Id. 25. Id. at 747 (McFarland, CJ., dissenting). 17. 287 Kan. 713, 200 P.3d 1 (2009).
14 The Kansas Prosecutor Spring 2009 The majority, of course, disagreed, and after ruling cases, without doing unconstitutional violence to that the appropriate standard of similarity is “strikingly the rights of criminal defendants. It may be time similar,” held that admitting evidence of Prine’s prior for the legislature to examine the advisability misconduct was reversible error because it did not meet of amendment to K.S.A. 60-455 or some other that standard. Finally, the Court noted: appropriate adjustment to the statutory scheme.26
We are compelled to make one final set of brief These comments by the Court virtually invited the comments on the K.S.A. 60-455 issues raised by legislature to change K.S.A. 60-455. Coupled with this case. the holding, they certainly stimulated the prosecution community to seek legislative changes. Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Efforts to change K.S.A. 60-455 Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to Shortly after Prine was released, the Attorney characterization as propensity evidence forbidden General’s Office began working on proposed changes under K.S.A. 60-455 and, thus, that convictions of to K.S.A. 60-455.27 We fairly quickly decided to such crimes are especially vulnerable to successful model our proposed changes on Federal Rules of attack on appeal. This is disturbing because the Evidence 413 and 414. We chose this approach for modern psychology of pedophilia tells us that two reasons: (1) the federal rules dealt with evidence propensity evidence may actually possess probative of similar crimes in sex cases and the Prine Court had value for juries faced with deciding the guilt or specifically identified sex crime prosecutions as an innocence of a person accused of sexually abusing area where it would look favorably on changes to the a child. In short, sexual attraction to children and rules, and (2) the federal appellate courts had already a propensity to act upon it are defining symptoms held that the federal rules were constitutional and we of this recognized mental illness. [citation omitted] therefore had existing case law to guide us in applying And our legislature and our United States Supreme the changes. Court have decided that a diagnosis of pedophilia Essentially, we copied the language of the can be among the justifications for indefinite federal rules, with minor modifications to fit Kansas restriction of an offender’s liberty to ensure the law. These changes would make evidence of prior provision of treatment to him or her and the protec- acts of sexual misconduct admissible in sex crime tion of others who could become victims. [citations prosecutions so long as the trial court found the omitted] It is at least ironic that propensity evidence to be relevant and more probative than evidence can be part of the support for an indefinite prejudicial. Basically, the intent was to discard civil commitment, but cannot be part of the support the “strikingly similar” standard and return to a for an initial criminal conviction in a child sex relevancy standard in sex crimes cases. crime prosecution. Unlike the federal rules, however, we did not separate out individual rules for adult sexual assaults Of course, the legislature, rather than this court, and child molestation, choosing instead to have a is the body charged with study, consideration, single rule applicable to all sex offenses.28 Further, and adoption of any statutory change that might we did not include a rule comparable to Federal make K.S.A. 60-455 more workable in such Rule of Evidence 415, which relates to admission of
26. 287 Kan. at 737. House Bill 2250,which ultimately became the law. 27. Several other prosecutors around the state, as well as the 28. Other than referencing offenses of “sexual assault” and “child KCDAA, and Senator Terry Bruce, also drafted proposed molestation,” the two federal rules are essentially the same. changes to K.S.A. 60-455, and while some elements of these Indeed, Judge Holloway of the Tenth Circuit, concurring in proposals made it into the final text of the new law, it was Castillo observed, “no principled distinction may be drawn the Attorney General’s proposal, submitted to the legislature between the two Rules.” 140 F.3d at 889 (Holloway, J., through Representative Raj Goyle, that formed the basis of concurring in part and dissenting in part).
Spring 2009 The Kansas Prosecutor 15 evidence of prior sexual assault or child molestation shows that the court employed almost the exact in civil cases, because, quite simply, as prosecutors language set forth in the new K.S.A. 60-455(c), not we were primarily concerned with criminal prosecu- the “strikingly similar” standard that was later attrib- tions.29 Thus, House Bill 2250 was born. uted to Damewood.31 Moreover, the Damewood The bill made it through the House relatively Court recognized earlier decisions where prior intact, but in the Senate, several amendments were crimes evidence was admitted under K.S.A. 60- made to the original bill. The most significant of 455 where the evidence was merely “somewhat these was proposed by Senator Terry Bruce. This similar” or bore “a marked similarity.”32 Thus, the amendment, which ultimately became section (c) new section (c) is a clear repudiation of Prine’s of the new K.S.A. 60-455, was drawn directly from “strikingly similar” standard and affects a return to Chief Justice McFarland’s dissent in Prine. Its the “reasonably similar” standard of Damewood and objective was to overrule the “strikingly similar” its predecessors. standard articulated in Prine and replace it with a “reasonably similar” standard for admission of prior (B) New K.S.A. 60-455(d) – (g) crimes evidence to show plan or modus operandi The new sections (d) through (g) are an adapta- in all criminal prosecutions other than sex crime tion of Federal Rules of Evidence 413 and 414, and prosecutions. A severability provision was added for the most part, mirror those rules. Accordingly, as well, and the bill was then passed as amended by the case law of the federal courts regarding those the Senate. A conference committee worked out the rules provides guidance and persuasive authority for differences between the House and Senate bills; it was interpreting and applying the new Kansas rules. then passed by both houses and enacted into law. The good news is that the federal rules have Now, the new K.S.A. 60-455 awaits review and withstood constitutional challenges. The Eighth, interpretation by the appellate courts. Fortunately, we Ninth, and Tenth Circuits have all upheld the consti- have existing case law to guide us and our courts in tutionality of the rules.33 In United States v. Enjady interpreting and applying the new evidentiary rule. and United States v. Castillo, the Tenth Circuit upheld rules 413 and 414 respectively in the face of Case law due process, equal protection, and in Castillo, Eighth Amendment challenges. (A) New K.S.A. 60-455(c) Significant in the Tenth Circuit’s rationale was The language of the new section (c) was drawn application of the balancing test of Federal Rule of from Chief Justice McFarland’s dissent in Prine. Evidence 403 to prior crimes evidence. Rule 403, The Chief Justice stated quite clearly that in her analogous to K.S.A. 60-445, gives the trial judge the view, the proper standard is “the original standard discretion to exclude evidence if its probative value 34 set out in Damewood.”30 A review of Damewood is outweighed by its prejudicial effect. The court
29. Whether or not this was shortsighted remains to be seen. the quality of the evidence at issue.” 287 Kan. at 741. It may very well be that as case law develops in the civil 32. 245 Kan. at 682 (citing State v. Morgan, 207 Kan. 581, arena that the legislature may need to revisit this issue. 582, 485 P.2d 1371 (1971) and State v. Hampton, 215 30. 287 Kan. at 747 (McFarland, CJ., dissenting). Kan. 907, 910, 529 P.2d 127 (1974)). 31. 245 Kan. at 682 (“The rationale for admitting evidence of 33. United States v. Mound, 149 F.3d 799 (8th Cir. 1998); prior unrelated acts to show plan under K.S.A. 60-455 is United States v. Lemay, 260 F.3d 1018 (9th Cir. 2001); that the method of committing the prior acts is so similar United States v. Castillo, 140 F.3d 874 (10th Cir. 1998); to that utilized in the case being tried that it is reason- United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998). able to conclude the same individual committed both 34. While K.S.A. 60-445 only explicitly refers to surprise as acts.”). And while the Damewood Court did note that the a grounds for excluding relevant evidence, it has been evidence of Damewood’s prior conduct was “strikingly interpreted to embody, as a rule of necessity, the general similar” to the charges in the case before it, 245 Kan. at rule that a judge may exclude any evidence that may 682, as Chief Justice McFarland observed in Prine, this cause unfair prejudice. State v. Davis, 213 Kan. 54, 57- “was not a standard for admission, only a comment on 58, 515 P.2d 802 (1973).
16 The Kansas Prosecutor Spring 2009 stated that “without the safeguards embodied in of prior convictions, this should be relatively easy, Rule 403 we would hold the rule [Fed.R.Evid. 413] but in the case of prior uncharged conduct, it will be unconstitutional.”35 more difficult, but certainly not unachievable. The Enjady court specifically articulated that in conducting Rule 403 balancing in a sex crime Is a limiting instruction still necessary? context, the trial court must consider: Prior to these changes, whenever evidence 1) how clearly the prior act has been proved; 2) of prior bad acts was admitted under K.S.A. 60- how probative the evidence is of the material 455, the trial court was required to give the jury fact it is admitted to prove; 3) how seriously an instruction regarding the limited purpose for disputed the material fact is; and 4) whether the such evidence.39 It has been asked whether such a government can avail itself of any less prejudi- limiting instruction is necessary with the new rules. cial evidence. When analyzing the probative To be sure, the requirement for a limiting instruction dangers, a court considers: 1) how likely is it has not changed with respect to evidence admitted such evidence will contribute to an improperly- under either section (b) or (c). It is perhaps arguable based jury verdict; 2) the extent to which such whether such an instruction is necessary with respect evidence will distract the jury from the central to evidence admitted under section (d), but the better issues of the trial; and 3) how time consuming it practice would be to ask for a limiting instruction 36 will be to prove the prior conduct. tying the evidence to the specific matter for which it was introduced.40 Accordingly, when attempting to introduce evidence of prior sexual misconduct under the new Conclusion K.S.A. 60-455, prosecutors would be well advised to ensure that the trial court addresses these factors Gunby and Prine effected significant changes on the record. While at first blush, it may seem with respect to the admission of evidence of like an excessive laundry list of factors, in reality, prior bad acts, raising extreme hurdles in the way it is nothing more than the probative vs. prejudicial of prosecutors seeking to admit such evidence. analysis that the trial court must undertake anyway.37 Fortunately, the legislature responded swiftly to the To have it on the record that the trial court consid- Supreme Court’s invitation in Prine to re-assess ered these matters prior to admitting evidence under and change K.S.A. 60-455. Thanks to the recent this section will certainly pay dividends on appeal. changes, the 60-455 playing field, recently tilted The Tenth Circuit also held that the trial court steeply in favor of criminal defendants, has now “must make a preliminary finding that a jury could been leveled. reasonably find by a preponderance of the evidence that the ‘other act’ occurred.”38 It is reasonable to conclude that the Kansas Supreme Court will take the same view, so again, when attempting to introduce evidence under this section, prosecutors should ensure that they can meet this hurdle and that the trial judge make such a finding. In the case
35. Enjady, 134 F.3d at 1433. ing prior sexual misconduct evidence both relative and 36. Id. probative. Enjady, 134 F.3d at 1431 (“Knowledge that 37. See Davis, 213 Kan. at 57-58. the defendant has committed rapes on other occasions is 38. Enjady, 134 F.3d at 1433. frequently critical in assessing the relative plausibility 39. State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974). of [a victim’s] claims and accurately deciding cases that 40. To this end, the federal courts have recognized assess- would otherwise become unresolvable swearing match- ing the credibility of the victim as a valid issue render- es.”).
Spring 2009 The Kansas Prosecutor 17 Charging Traffic Fatalities by Aaron J. Breitenbach, Assistant District Attorney 18th Judicial District of Kansas
Editor’s Note: This article is reprinted with permission from the Kansas Department of Transportation. It was printed in the Volune 2, Issue 1, January 2009 issue of Street Legal, a program of KDOT.
According to recent numbers Conduct during the this degree of recklessness: (1) provided by the Kansas Depart- Commission of an Inherently Intoxication (though this factor ment of Transportation, approxi- Dangerous Felony: alone would not be evidence mately 450 people die annually K.S.A. 21-3436 includes of recklessness, See State v. on our state’s roadways, with violation of K.S.A. 8-1568(b), Huser, 265 Kan. 228 (1998)); (2) approximately 30 percent of fleeing or attempting to elude an Speeding; (3) Near or additional those crashes being alcohol- officer, as an inherently dangerous collisions shortly before the fatal related. Regardless of where felony. Accordingly, deaths crash; (4) driving on the wrong you prosecute, there is an which occur in crashes caused side of the roadway; (5) Failure almost certainty that you will be by attempts to flee law enforce- to render aid; (6) Failure to heed presented with a recurring choice ment can be charged under the traffic signs/signals; (7) Failure of whether or how to charge Felony Murder statute, K.S.A. 21- to heed warnings about reckless someone for killing another while 3401(b). driving (or intoxication); and (8) operating a motor vehicle. history of prior driving offenses The following is my brief Reckless Conduct which (although the admissibility of attempt to aid fellow prosecu- Manifests an Extreme prior bad acts such as these have tors in determining whether and Indifference to the Value of not been discussed since the to what extent criminal liability Human Life: Gunby case). exists in a given case. These Second degree reckless cases often take us out of our murder, K.S.A. 21-3402(b), is Reckless or Wanton comfort zone of prosecuting the appropriate charge when a Conduct: intentional acts and into the less driver’s conduct is so patently K.S.A. 21-3404(a), involun- familiar, nearly “civil,” realms of dangerous that death or serious tary manslaughter, and K.S.A. 21- “reckless or wanton conduct” and injury to others is a near certainty 3405, vehicular homicide, are the “material deviations” from the to occur. “Recklessness that charges that are appropriate when standard of care. can be assimilated to purpose or dealing with a lesser degree of knowledge is treated as depraved reckless or wanton conduct than Premeditated and heart second-degree murder. demonstrated above. Although Intentional Conduct: [. . .] This language describes a vehicular homicide’s “material A motor vehicle is a deadly kind of culpability that differs in deviation from the standard weapon and is often used in degree but not in kind from the of care” appears to address a intentional or even premeditated ordinary recklessness required for mens rea short of recklessness, efforts to take another’s life. First manslaughter.” State v. Doub, 32 the many cases which have degree premeditated murder and Kan.App.2d 1087 (2004). interpreted these statutes have second degree intentional murder Akin to obscenity, you know blurred that distinction. See are always available charges when it when you see it. In Doub, the State v. Remmers, 278 Kan. 598 supported by sufficient evidence. Court noted the following list of (2004); State v. Krovvidi, 274 facts, which would be evidence of Kan. 1059 (2002); State v. Trcka, 18 The Kansas Prosecutor Spring 2009 20 Kan.App.2d 84 (1994); and Creamer, 26 Kan.App.2d 914, 916 State v. Bale, No. 96,929 (May State v. Burrell, 237 Kan. 303 (2000). 16, 2008), where an intoxicated (1985). In short, if someone As we all know, however, mother backed her van over a commits a moving violation in a no defense attorney believes in a handicapped 11-year-old child construction zone or after being crime without a defense. Accord- who was attempting to crawl warned by another that he/she ingly, charging and prosecuting near and into the back of the is acting out of compliance with these cases can require investiga- van. Although the Court again apparent speed limits or traffic tion and litigation of defenses found that a “Defendant’s actions signals, there’s something more such as contributory negligence must be the proximate cause of than simple negligence, and he/ or other intervening causes (such the victim’s death,” it stressed she is now exposed to criminal as medical malpractice or pre- that “contributory negligence liability. What the appropriate existing medical conditions). is not a defense to involuntary charge should be is a fact-specific Effort should be made to limit manslaughter. [. . .] Nevertheless, question. such defenses through motions a victim’s own conduct may be in limine, but there is some so substantial a factor so as to be Involuntary Manslaughter support in the law for these the direct cause of death.” In that while DUI: defenses. In State v. Collins, 36 case, the Court found insufficient Kan.App.2d, 368-72 (2006), the evidence of negligence on the part Court found that a motorcyclist of the victim/child to warrant a parked in the middle of a road, proximate cause instruction. near a bend in the road, at night, Whatever decision a and who failed to use any efforts prosecutor makes in a case to warn potential on-coming involving a death, there are drivers (intoxicated or not) bound to be charged emotions created conditions that may have for any number of individuals or posed a potential intervening or community groups. As always, K.S.A. 21-3442 is a unique superseding cause and warranted we must do our best to ensure that law that provides strict or absolute a proximate cause instruction to our laws are applied fairly and criminal liability for causing the jury. The Court of Appeals equally according to the facts of the death of another. State v. further refined its analysis in each case.
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Spring 2009 The Kansas Prosecutor 19 HGN: The Eyes Have IT by Karen C. Wittman, Assistant Attorney General Traffic Safety Resource Prosecutor
Standardized Field Sobriety Tests (SFSTs) sant affecting many of the higher as well as lower are designed to determine if a person’s ability to motor control systems of the body. This results in operate a motor vehicle is compromised. “Police poor motor coordination, sluggish reflexes, and officers and lay witnesses have long been permitted emotional instability. The part of the nervous system to testify as to their observations of a defendant’s that fine-tunes and controls hand movements and acts, conduct, and appearance, and also to give body posture also controls eye movements. When an opinion on the defendant’s state of impairment intoxicated, a person’s nervous system will display a based on those observations. [Citations omitted.] breakdown in the smooth and accurate control of eye Objective observations based on observable signs movements. This breakdown in the smooth control and conditions are not classified as ‘scientific’ and of eye movement may result in the inability to hold thus constitute admissible testimony.” Williams v. the eyes steady, resulting in a number of observable State 710 So.2d 24, 28-29 (Fla.App. 3 Dist.,1998).1 changes of impaired oculomotor functioning.4 The SFSTs consist of: the Horizontal Gaze “Nystagmus” is a term used to describe a Nystagmus test (HGN), the walk and turn test, and “bouncing” eye motion that is displayed in two the one-leg stand test. With regard to the “walk ways: (1) pendular nystagmus, where the eye and turn,” and “leg lift” field sobriety tests … these oscillates equally in two directions, and (2) jerk are physical dexterity exercises that common sense, nystagmus, where the eye moves slowly away from common experience, and the “laws of nature” show a fixation point and then is rapidly corrected through are performed less well after drinking alcohol.2 a “saccadic” or fast movement.5 HGN is a type of As for the HGN test, ask any officer-- the most jerk nystagmus with the saccadic movement toward accurate of these tests is the HGN test. The State the direction of the gaze. An eye normally moves of Ohio went so far as to state the HGN test is the smoothly like a marble rolling over a glass plane, “single most accurate field test to use in determining whereas an eye with jerk nystagmus moves like whether a person is alcohol impaired.”3 a marble rolling across sandpaper. Most types of So what is HGN and what is the HGN test? nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus HGN cannot control it.6 In fact, the subject exhibiting the Alcohol is a central nervous system depres- nystagmus is unaware that it is happening because Footnotes 1. State v. McHenry 2006 WL 1816305, 7 (Kan. Impairment, 47 New Eng. J. Optometry 5, 6 (Winter 1994). App.) (Kan.App.,2006) See also City of Dodge City v. 5. Raymond D. Adams & Maurice Victor, Principles of Hadley 262 Kan. 234 (1997) Neurology, ch.13, “Disordersth of Ocular Movement and 2. Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 Pupillary Function,” 117 (4 ed. 1991). (1996). 6. C.J. Forkiotis, Optometric Exercise: The Scientific Basis 3. State v. Bresson 51 Ohio St.3d 123, 125, 554 N.E.2d for Alcohol Gaze Nystagmus, 59 Curriculum II, No. 7 at 1330, 1332 (Ohio,1990) 9 (April 1987); Gregory W. Good & Arol R. Augsburger, 4. Jack E. Richman & John Jakobowski, The Competency Use of Horizontal Gaze Nystagmus as a Part of Roadside and Accuracy of Police Academy Recruits in the Use of Sobriety Testing, 63 Am. J. of Optometry & Physiologi- the Horizontal Gaze Nystagmus Test for Detecting Alcohol cal Optics 467, 469 (1986).
20 The Kansas Prosecutor Spring 2009 the bouncing of the eye does not affect the subject’s 5. If the subject exhibits these characteristics, vision.7 the officer should discontinue the HGN test and may need to seek medical assistance for HGN TEST the individual if a medical disorder or injury According to U.S. Department of Transportation, appears to exist. National Highway Safety Administration (NHTSA), Improved Sobriety Testing8: While conducting the test, the officer looks for The HGN test requires only an object (stimulus) six “clues,” three in each eye that indicate impair- for subjects to follow with their eyes, such as a pen ment. The officer should record the clues on the or the tip of a penlight. HGN Guide. The left eye is checked for the clues, and then the right eye. The clues are9: 1. The officer Sign Appearance Standardized Procedures places the object approxi- Lack of smooth Eye does not follow a moving Stimulus rate (speed of pass) mately 12 to 15 pursuit (LSP) stimulus smoothly is 2 seconds. inches from the subject’s face Distinct and Sustained Stimulus is moved laterally to With the eye gazing as far to and slightly Nystagmus at the extreme gaze possible and the side as possible, jerking is higher than maximum deviation is held at that position for >4 distinct. eye level. The (MAX) seconds. officer instructs As the eye moves to the side, the subject Onset of nystagmus Stimulus is moved slowly to jerking occurs before the eye to follow the prior to 45°angle of determine the AOB where reaches 45° angle of gaze object with the gaze (AOG) jerking first occurs. eyes and the (AOG). eyes only – the head should remain still. The officer also checks for vertical nystagmus. 2. The officer then asks if the subject The officer checks for vertical nystagmus by raising understands all the instructions. After the object several inches above the subject’s eyes. positioning the object, but before conducting Vertical Nystagmus is performed with the same the test, the officer checks for signs of procedure for Distinct and Sustained Nystagmus at medical impairment. maximum deviation except the stimulus is moved 3. First, the officer checks for “equal tracking” upward rather than to the side. Vertical nystagmus by moving the object quickly across the is not one of the HGN clues nor is it a part of the subject’s entire field of vision to see whether SFSTs battery. However, vertical nystagmus is a the eyes follow the object simultaneously. good indicator of high doses of alcohol, other central 4. The officer then checks for equal pupil size. nervous system (CNS) depressants or inhalants, and 10 Lack of equal tracking or equal pupil size the consumption of the drug phencyclidine (PCP). may indicate blindness in one eye, a glass The officer should note the result and take precau- eye, a medical disorder, or an injury. tions if vertical nystagmus is evident.
7. There have been some studies that suggest that HGN due 9. The Robustness of HGN Test, US-DOT; NHTSA DOT to alcohol impairment may affect the ability of a person HS 810831 September 2007 to see clearly. See June M. Stapleton, et al., Effects of Al- 10. Evaluation and Management of Psychotic Patients in the cohol and Other Psychotropic Drugs on Eye Movements: Emergency Department; Ulrich A. Reischel, MS, MD, Relevance to Traffic Safety, 47 Q.J. Stud. on Alcohol FACP Richard D. Shih, MD, FACEP Hospital Physician 426, 430 (1986). Turner White Communications Inc., Wayne, PA October 8. US Dept. of Trans. NHTSA DWI Detection and Stan- 1999 dardized Field Sobriety Testing (1984)
Spring 2009 The Kansas Prosecutor 21 Traditional field sobriety tests such as the one- results. The State presented no scientific expert leg stand and walk-and-turn tests give the officer witnesses at trial. The Kansas Supreme Court an indication of the suspect’s condition. However, disagreed. After an extensive review of numerous to some degree the results of these tests can be articles and studies, the Kansas Supreme Court controlled voluntarily by the suspect. Performance stated: can improve with practice and the test results may This court holds that HGN evidence requires a vary depending upon the suspect’s drinking habits, Frye foundation for admissibility. If the Frye physical stature, and natural coordination.11 The foundation is established to this court’s satisfac- HGN test is an involuntary movement of the eye and tion, HGN evidence will be admitted in other cannot be manipulated or controlled by a person. cases without the need to satisfy the Frye test Police officers routinely use this test in their each time. Before this court rules on whether quest to evaluate a person who they suspect of DUI. HGN evidence satisfies theFrye admissibility However, at the present time the HGN test has not requirements, a trial court first should have been found to meet the Frye standard12 in Kansas an opportunity to examine, weigh, and decide and is not presented as evidence in court. disputed facts to determine whether the test is sufficiently reliable to be admissible for any Case Law in Kansas purpose in Kansas.16 The two cases that are cited routinely when dealing either with the Frye standard or HGN is The State of Oregon also did a review of articles State v. Witte13 and State v. Chastain.14 and studies and noted the Kansas Supreme Court got it wrong:17 The Witte Case Our review of the record in this case, the legal and medical literature on the HGN test, The prosecution’s position in Witte was the test including various publications and research was not scientific and did not have to meet theFrye studies concerning the HGN test, and our Standard. This was not a novel approach since a own research led us to conclude that scientific number of states have been successful in making disciplines of pharmacology, ophthalmology, and that argument.15 The State also argued that because to a lesser extent optometry should be included other jurisdictions have recognized HGN evidence with behavioral psychology, highway safety, as reliable under the Frye test, the State was not neurology and criminalistics in the relevant required to establish the reliability of such evidence scientific community. Each of those disciplines through expert testimony. The State contended has been involved in the study of alcohol- that because HGN evidence has been established as induced nystagmus. reliable, an officer, who has been trained properly ….Our research also led us to conclude that and who has administered correctly the test to the the following propositions have gained general defendant, can testify about the defendant’s test
11. State v. Superior Court In and For Cochise County 149 13. 251 Kan. 313 (1992) Ariz. 287, 289, 718 P.2d 189, 191 (Ariz.App.,1985) 14. 265 Kan. 16 (1998) 12. Frye v. United States, 23 F. 1013(D.C. Cir. 1923) “Just 15. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794, 798 when a scientific principle or discovery crosses the line (1993); People v. Ojeda, 225 Cal.App.3d 404, 275 Cal. between the experimental and demonstrable stages is Rptr. 472, 474 (1990); State v. Edman, 452 N.W.2d 169, difficult to define. Somewhere in this twilight zone the 170 (Iowa 1990); State v. Murphy, 451 N.W.2d 154, 157 evidential force of the principle must be recognized, (Iowa 1990); State v. Garris, 603 So.2d 277, 282 (La. and while the courts will go a long way in admitting Ct.App.1992); State v. Nagel, 30 Ohio App.3d 80, 506 experimental testimony deduced from a well-recognized N.E.2d 285, 286 (1986); State v. Sullivan, 310 S.C. 311, scientific principle or discovery, the thing from which 426 S.E.2d 766, 769 (1993). the deduction is made must be sufficiently established to 16. Witte at 330. have gained general acceptance in the particular field in 17. State v. O’Key 321 Or. 285, 899 P.2d 663 (1995) which it belongs.”
22 The Kansas Prosecutor Spring 2009 acceptance within the relevant scientific RESOLVED that the American Optometric community. Association acknowledges the 1. HGN occurs in conjunction with alcohol scientific validity and reliability consumption. of the HGN test as a field sobriety 2. Its onset and distinctness are correlated to test when administered by properly BAC. trained and certified police officers; 3. In conjunction with other field sobriety and be it further tests officers can be trained to observe these phenomena sufficiently to detect alcohol RESOLVED that the American Optometric impairment. Association urges doctors of optometry to become involved as In all fairness to the Kansas Supreme Court, the professional consultants in the use Oregon Court had two more years of research to study. of HGN field sobriety testing.
In 1993, a year after the Witte decision, the The Chastain Case American Optometric Association House of In 1998 the Kansas Supreme Court was once Delegates, issued a resolution concerning the HGN again faced with the HGN test. In this case the State test as a field sobriety test. The resolution stated: did present evidence from expert witnesses. Dr. Marcelline Burns18 testified. The Supreme Court WHEREAS drivers under the influence of made the following observations: alcohol pose a significant threat 1. Since the Witte opinion four other jurisdic- to the public health, safety, and tions found the HGN test was admissible.19 welfare; and 2. Dr. Burns credentials were impressive.
WHEREAS optometric scientists and the The Supreme Court’s opinion, however, reiter- National Highway and Traffic ated Witte, stating: Safety Administration have shown the Horizontal GazeNystagmus State v. Witte, raises a number of questions, none test to be a scientifically valid and of which have been answered here today. There reliable tool for trained police are a number of medical conditions which this officers to use in field sobriety witness has testified that she is not qualified to testing; now therefore be it answer regarding, and these issues that were 18. Cochise County at 191; Marcelline Burns has a Ph.D. as a result of 450 administrations of the test. They found from the University of California at Irvine and is a that they were able to distinguish above and below .10 research psychologist. She is also the director of the per cent blood alcohol at an accuracy level of 80 per cent. Southern California Research Institute. The Institute Researchers in Finland had also been studying and using is a non-profit organization incorporated by a group of the HGN test and their results were the same as these of researchers from UCLA, including Dr. Burns. In 1975 the Institute. the United States Department of Transportation, the 19. See People v. Buening, 229 Ill.App.3d 538, 545-46, 170 National Highway Safety Administration, awarded a Ill.Dec. 542, 592 N.E.2d 1222 (1992); Schultz v. State, research contract to the Southern California Research 106 Md.App. 145, 164-65, 664 A.2d 60 (1995); City of Institute to investigate and to develop the best possible Fargo v. McLaughlin, 512 N.W.2d 700, 706 (N.D.1994); field sobriety tests. Dr. Burns was the project director State v. O’Key, 321 Or. 285, 316, 899 P.2d 663 (1995) and conducted the research. As a result of the research (applying standard from Daubert v. Merrell Dow Pharma- the Institute recommended a three-test battery, one of ceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d which was the HGN test. Their research found a correla- 469 [1993] and determining as part of that standard that tion between blood alcohol content and HGN and they horizontal gaze nystagmus testing is generally accepted developed the following formula: Fifty degrees minus within the relevant scientific community). However, we the angle of the gaze of the onset of eye oscillation are not satisfied that such testing has achieved general equals the BAC. This formula was validated in the field acceptance within the relevant scientific community.
Spring 2009 The Kansas Prosecutor 23 specifically addressed inState v. Witte. And vision in which each eye is used separately or there questions that were addressed make this appear is a loss of one eye. By using the eyes in this way, to be a bootstrapped-type of testing procedure as opposed to binocular vision, the field of view is that has not been shown properly, and there increased, while depth perception is limited.21 are a number of other matters that need to be addressed before the scientific reliability of this The Results testing will be allowed. Overall, these experiments revealed the officer did not err when participants’ BACs were 0.10 or Since Chastain, which was decided in 1998, Frye greater and rarely erred when participants’ BACs still has not been met in Kansas. were 0.08 regardless of variations in stimulus presentation, participant position, or when partici- New Study pants had monocular vision. The Robustness of the Horizontal Gaze Nystagmus Test in Standardized Field Sobriety Stimulus Speed Tests20 was published in late 2007. This study Specifically with respect to stimulus speed i.e. if was sponsored by NHTSA and authored by Dr. the officer went too fast (4 seconds) or too slow (1 Marcelline Burns. This study was devised on the second) than the recommended 2 second pass--there premise that Courts when faced with variations from was an increased score of no alcohol impairment standard procedures in HGN administration and its when the participant was in fact impaired; a false validity may be affected and as a result render HGN negative error. testimony inadmissible. This is not a new concept. Kansas courts are constantly being challenged when Stimulus placement-eye-level there are “variations” in the other tests i.e. the walk Varying the level at which the stimulus is placed and turn and one-leg stand. in front of the subject-too high (4 inches above eye- level) or too low (at eye level) of the recommended The Experiments 2 inches above eye-level--there was no difference in In this study, there were three experiments. The the interpretation of results at all. first experiment looked at the speed in which the stimulus was passed in front of the subject’s eyes, Stimulus Placement-away from face the elevation of the stimulus relative to the eye-level When the stimulus was placed too far (20 gaze, and the distance the stimulus was placed in inches) or too close (10 inches) to the recommended front of the face. 12-15 inches--this did not alter the HGN signs but The second experiment looked at the subject’s holding the stimulus 10 inches from the subject’s posture during the HGN test. When performing the face increased the number of HGN signs the officer test, the subject is to keep his feet together, hands correctly observed. at his side and keep his head still and follow the stimulus. Sometimes the subject is unable to stand Participant’s position and the test is administered with the subject sitting With respect to the participant’s position, it again or lying down. increased the score of no alcohol impairment when The third experiment was to access when the the participant was impaired; a false negative error. person has monocular vision. Monocular vision is
20. For a copy of the Robustness of the HGN test, write 21. Coday MP, Warner MA, Jahrling KV, Rubin PA. Ac- to the Office of Behavioral Safety Research, NHTSA, quired monocular vision: functional consequences from NTI-130, 1200 New Jersey Avnue SE., Washington, DC the patient’s perspective. Ophthal Plast Reconstr Surg. 20590 or for an electronic copy-contact Karen Wittman, 2002;18(1):56–63. KS-TSRP
24 The Kansas Prosecutor Spring 2009 Monocular Vision have to review for charging to determine if it is the There was no indication the subject’s non- case that will challenge the Kansas Supreme Court’s functioning eye affected HGN in the eye that was decision in Witte and Chastain. Please know the State functional. There also was no evidence that HGN can prevail. In 1997, in a Frye hearing in Atchison signs in monocular individuals will lead to false county, experts were called (Jeff Collier, Dr. Marcel- arrests. The study did note the subjects tested were line Burns, and Dr. Thomas Whittaker) and the HGN limited. test was found to be admissible in district court. Unfortunately due to an error in the complaint, the Conclusion of the Study case could not proceed. Just know--It can be done!!! The robustness of the HGN test or more aptly put, the capacity of performing without failure under What is Needed a wide range of conditions, did not compromise the The case we need must have the following: validity of the HGN test. If any error was made it 1. Clearly the first thing is a good stop with was to the benefit of the suspect. appropriate probable cause. 2. The HGN test must be performed on Final Thoughts video and audio must be good. This is so HGN has been used in determining impairment the testing can be reviewed by experts to for more than 30 years. Officers believe it is the best determine if the officer performed the test test in the battery of tests to indicate impairment. exactly according to NHTSA guidelines. HGN is the only test that cannot be manipulated by The other SFSTs must also be performed a suspect or be influenced by a subject’s physical on video. (It is imperative for the officer infirmities. None of the field sobriety tests give to be cognizant of the location of the video perfectly accurate predictions of BAC. A number cameras to capture everything.) Also, the of states as officer must be credentialed with the latest well as the SFST training. American 3. There must be a BAC determination either Optometric with breath or blood i.e. suspect took the Associa- evidentiary blood or breath test (Need to tion, have make sure the officer followed all protocols recognized of the Kansas Department of Health and this test Environment to ensure admissibility of the as being a test). viable tool 4. A very detailed, descriptive, narrative DUI when used report. in conjunc- 5. We need an officer who has experience tion with the testifying and can “hold his own” on the other field stand…you know what I mean! sobriety tests. In other words, we need everything! Once you It has been find the case, contact Jeff Collier, Kansas State 17 years Coordinator for both the Drug Recognition Expert since Witte (DRE) and SFST Programs or myself. You must and science submit the video and all police reports to us for has come a review. Once the case is found and it passes muster long way. It with the experts-- money and technical assistance to is time for present the case will be provided. So you have your prosecutors assignment-- Find the case and let’s move into the to examine twenty-first century of DUI prosecution. cases they Spring 2009 The Kansas Prosecutor 25 No Minor Matter: One Practitioner’s Look at Juvenile Jury Trials by Lara Blake Bors, Assistant Finney County Attorney
On June 20, 2008, many a juvenile prosecutor’s rehabilitation or punishment of the juvenile world was turned upside down. On that day, the offender. In some instances, it may actually Kansas Supreme Court reversed decades of juvenile benefit a juvenile to be sentenced as an adult. law holding that a juvenile’s ability to have a jury An older juvenile who may be eligible to go trial was within the sole discretion of the judge. to the JCF may get presumptive probation as In In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), an adult. While it may seem odd, depending the Kansas Supreme Court found K.S.A. 38-2357 on the juvenile’s history and current charges, unconstitutional and declared that juveniles have an a juvenile may actually want to be certified. absolute right to a trial by jury. 3. Voir Dire. Debate continues about how How as prosecutors do we react? Without much important voir dire is in a jury trial. Some guidance from the Supreme Court or the legislature, say it does not matter; others believe the each individual judicial district has been forced case is won or lost here. No matter on to deal with the exigencies of this decision in an which side you fall, in juvenile jury trials, ad hoc manner. Some jurisdictions have decided voir dire presents your first, and possibly that in addition to a jury trial right, juveniles also best, opportunity to educate your jury. The have a right to a preliminary hearing. Others ever-expanding number of crime dramas on believe the right extends only to felonies and not television may have given your veniremen to misdemeanors. No matter how your particular the impression that all juveniles charged with district has decided to proceed, there are a few a crime are treated as adults. As with the practical matters that we should look at to assist us “CSI” effect, successful juvenile prosecutors in the prosecution of these matters. need to educate their juries that this is not the case in juvenile matters, that juveniles 1. How to charge? Let’s face it: a lot of are simply facing adjudication rather juvenile crime is, well, juvenile. “He was than conviction. This belief is extremely ‘maddogging’ me so I kicked him in the prevalent with our veniremen. Even after head.” “She was flirting with my boyfriend, the veniremen were instructed that this was a so I keyed her car.” A lot of these crimes are juvenile jury trial, one veniremen sitting on a symptoms of larger problems that if not dealt Finney County juvenile trial was convinced with could lead to something much more the State was trying this juvenile as an adult serious. Juries may not be ready for this. and she did not believe she could sit on When charging, we need to balance what the jury. It will take repeated statements has occurred and what we can prove with throughout this process to ensure that the what a jury may be willing to impose upon a jury understands and is convinced that this juvenile. It is fruitless to imagine that some is a juvenile matter. Juvenile prosecutors jurors will not see themselves, or their own need to ensure potential jurors understand children, in the juveniles we are prosecuting. that punishment will not be something they need to worry about – the sole extent of their 2. To Certify or Not to Certify? Given a service is taking the facts as they are and juvenile’s criminal history and the crime he applying the law. or she is charged with, if over the age of 14, the presumption is in the State’s favor for 4. Jury Instructions. Either through a formal prosecution as an adult. K.S.A. 38-2347. jury instruction or a more informal introduc- When using this tool, we must, as always, tion from the judge, introducing the fact that carefully balance our duty to the State, the this is a juvenile jury trial is also beneficial. impact on our own community, and the The jury instruction explicitly state to the interests of the victim with the need for jury that this is a juvenile trial and the Court
26 The Kansas Prosecutor Spring 2009 will be dealing with him or her as a juvenile. as he or she was at the time of the crime. This will counter-act the generic mindset For example, in Finney County’s trial, of the jurors that “we’re treating him as an T.D., was charged with Aggravated Battery adult.” after stomping on another juvenile’s face behind a middle school. A friend of T.D.’s 5. Closing Arguments. Your chance to get videotaped the fight and uploaded it to the final word. The education process that YouTube. The State was able to show the began in voir dire will need to continue here. jury exactly who T.D. was, not the soft- Refrain from saying words like “defendant” spoken child wearing khaki pants and a or “conviction,” in favor of “juvenile” button down shirt, but the tough, in your and “adjudication.” Jurors want to do a face, shoulders hunched, ready-for-a-fight good job, but it is up to us to guide them. juvenile offender who was prepared to end The instructions need to be addressed as the fight in his own fashion. The jury needs thoroughly as possible. Jurors swear an oath to see this kind of imagery, either literally or to apply and uphold the law. Whether they figuratively, to neutralize the sympathy that like it or not, they need to take the facts and defense counsel will be attempting to garner. apply the instructions to the case. Defense counsel will likely choose to focus on the Along those same lines, we must place a human idea of youthful indiscretions and “kids face on the victim. The victim could very well be being kids” rather than the actual facts of the another child who should engender equal, if not case. A prosecutor’s best counter-attack will more, sympathy. The victim could be their next- be to highlight that the instructions are the door neighbor whose house was burglarized and law that the juror swore to uphold them to vandalized. By humanizing the victim, sympathy take each piece of evidence and fit it within for the juvenile will hopefully be muted when the the context of the instructions. By so doing, jury deliberates. you will be able to remove the sympathy vote for the juvenile and focus the jury on Until there is more guidance from the Courts what occurred. and/or the Legislature, juvenile prosecutors will Finney County’s first juvenile jury trial continue to muddle through and avoid many of involved a schoolyard fight. One juvenile, the pitfalls that exist. It could very well be that in T.D., stomped on the face of the other the coming months, we will have more direction individual. Some jurors felt that the case – knowing whether or not preliminary hearings should never have reached the courtroom; will be a right; whether all trials, misdemeanor rather it should have been dealt with by the and felony, should be given jury trial rights. Until parents or the school. Some jurors were such a time, the juvenile prosecutor will provide hesitant to convict a juvenile of a felony juries with as much information as possible about crime. Yet, the jurors kept going back to the situation of juvenile offenders and the role that the jury instructions and put the pieces the jury member plays with that juvenile offender. of the evidence into the instructions as Also, as time goes on and more of these trials are was discussed during the State’s closing put to a jury, prosecutors should share informa- arguments and finally returned a verdict of tion gleaned from their experiences to assist others guilty of Aggravated Battery. throughout the state.
6. The Juvenile and the Victim. The neatly Ironically, we’ll never know if any of these pressed child that the jury sees in front of things would work in the case of L.M. given that them is not the same person who committed he faces deportation for crimes he committed as an the crime. It is critical to show the juvenile adult.
Spring 2009 The Kansas Prosecutor 27 Spring Report by Kim T. Parker, Chief Deputy District Attorney, NDAA Vice President/Associate Director
NDAA Visits Congress, Selects New Executive Director
Dennis Moore, former Johnson years in a state, local, federal County District Attorney were prosecutor, or public defender able to meet with me. My discus- office handling criminal cases. The sions with Representative Tiahrt commitment makes the applicant The 2009 Spring board and Representative Moore were eligible for as much as $10,000 meeting was held in Baltimore, encouraging. Both Tiahrt and per year in debt reduction of Maryland in combination with Moore have been supportive of eligible student loans. After the the annual Capitol Conference. prosecutors and their concerns in initial three year commitment, Several NDAA board members the past and indicated support for recipients have the ability to renew arrived early, and made the short the funding requests. their contract for as much as three trip to Washington D.C. to meet As members of KCDAA, you years and an additional $10,000 with members of Congress on should make an effort to contact per year for a total lifetime behalf of our nation’s prosecu- your representatives in Congress payment of $60,000. tors. A productive four-day board to follow up on these important meeting followed. The meeting funding requests: National Advocacy Center (NAC) included a visit from newly The NDAA mission at the NAC appointed United States Attorney John R. Justice Act (JRJ) is to promote community safety by General Eric Holder. Last August, the JRJ was equipping the nation’s prosecutors enacted as part of the Higher with advocacy skills to effectively Education Opportunity Act of represent their communities and Baltimore, Maryland 2008, to encourage individuals to constituents in the courtroom. - Prosecutor’s seek enter into and remain in criminal State and local prosecutors Funding from Congress justice careers as prosecutors handle approximately 95 percent and public defenders. The JRJ of all criminal cases in the United As a representative of establishes a system of loan States. Limited budgets and state prosecutors, I joined with repayment benefits to relieve the prosecutors in need of specific members of the NDAA board high cost of law school debt. training are a major concern. for an early morning meeting in Authorization of the act Since its inaugural class, the the Hart Senate office building allowed for funding of $25 million NDAA has provided over 23,000 March 18. We prepared to spend in the initial year. However, due state and local prosecutors with the day visiting state Congres- to the late date of authorization, critical legal education at no cost sional Delegations, to advocate no funding has yet been provided to the local offices. That number for funding of the National for the JRJ. NDAA communica- includes 376 prosecutors from the Advocacy Center (NAC) and tions with leadership in the Justice state of Kansas. the John R. Justice Prosecutors Department indicate that the Appropriate funding is essential and Defenders Incentive Act of funding for JRJ will be included if the NAC is to function as 2008 (JRJ). I met with receptive in the 2010 Presidential Budget. originally intended. Accordingly the staff members from the offices Congressional funding support for NDAA is requesting $6.5 million of Senator Pat Roberts, Senator the Act is critical. through the Department of Justice Sam Brownback, and Representa- The basic requirement for Office of Justice Programs Edward tive Jerry Moran. Representative eligibility for the program is a Byrne Justice Assistance Grants for Todd Tiahrt and Representative commitment of service of three fiscal year 2010.
28 The Kansas Prosecutor Spring 2009 Attorney General Eric Local, and Tribal Affairs in the Research Council, a division Holder addresses NDAA White House Office of National of the National Academy of Drug Control Policy, for the last Sciences, (NAS) issued a report, Board of Directors five years. Scott was nominated titled “Strengthening Forensic U. S. Attorney General Eric by President George Bush, and he Science in the United States: H. Holder Jr. stated, “We will was confirmed by the Senate. Prior A Path Forward.” The media be partners…Your problems are to his work in D.C., Scott was the has mistakenly portrayed the our problems.” Holder acknowl- county attorney for 16 years in report as being extremely critical edged the increased difficulty of Cedar City, Utah. Scott has strong of various forensic sciences. a prosecutor’s responsibilities connections in Washington and Actually, the report available in a down economy and encour- experience as a county attorney on the NAS website makes a aged cooperation between federal, and prosecutor. number of recommendations that state and local offices. Holder Scott replaces Interim can be supported by prosecu- highlighted the $4 billion in Executive Director Tom Sneddon. tors and utilized to enhance the stimulus money. Tom deserves our gratitude for use of forensic evidence in court. He stated, “It’s our priority he has done a yeoman’s work in NDAA has formed a special to get our funding out the door providing stability for our associa- working committee, to respond as soon as possible.” NDAA tion during difficult times. to this report. The committee is president Joe Cassilly and working to ensure that the report other members of the executive NDAA Financial Picture of the National Research Council committee met with General is accurately reflected in Congres- Holder before his address to The financial picture of the NDAA has “turned the corner and sional hearings, media confer- discuss funding necessary to keep ences, and in our courtrooms. the National Advocacy center is headed up the street in the right direction” according to a report by I have been appointed to the running as intended. In Holder’s committee and I encourage you to later comments to the full board, Interim Executive Director Tom Sneddon. The NAC is scheduled read the full report and respond to Holder indicated his support me by e-mail: kparker@sedgwick. for NAC funding to train state to receive $1.6 million dollars out of the stimulus package recently gov, with questions, concerns, or and local prosecutors as well as ideas. funding for the JRJ. signed by President Obama. The stimulus dollars are in addition to the $1 million received last year. 2009 NDAA Summer New Executive Director This will allow the NAC to initiate Conference Selected fully funded and free training for The next NDAA Board of The executive committee all the courses currently on the Directors meeting will be held submitted four individuals to the NAC schedule for this year and in conjunction with the 2009 NDAA board of directors as final into 2010. Summer Conference in Orlando, candidates for the open executive We are currently in the black Florida July 11-15, at Disney’s director position. Each candidate with a welcome surplus. Over Coronado Springs Resort. was provided an opportunity to the last several months, NDAA Prosecutors in attendance will present their qualifications and has recouped over $225,000 of have an opportunity to meet answer questions from the board. an estimated $400,000 in federal board members and attend board Scott M. Burns was selected grant funds owed to NDAA. meetings. Early reservations are by an overwhelming majority recommended. Log onto www. vote, and his contract will be National Research ndaa.org and click on the NDAA finalized by the executive board Council Report 2009 Summer Conference for in the next several days. Scott has more information. been the Deputy Director of State, Recently the National
Spring 2009 The Kansas Prosecutor 29 New Days & Date for KCDAA Spring 2009 Conference
Kansas Attorney General Steve Six together Paul Greenwood with the Kansas County and District Attorneys Deputy District Attorney V Association and the Wichita TRIAD will bring Paul Office of the District Attorney Greenwood to Kansas for the Spring Conference San Diego, CA June 18-19, 2009. For more than a decade, Paul Greenwood, a Education: Leeds University, Leeds, California prosecutor, has been on the front lines of Yorkshire, England a crusade against abuse of the elderly. In June 2009, Bachelor of Laws, LL.B [Hons], he’ll be bringing that crusade back to Kansas at the 1973 KCDAA Spring Conference in Wichita. Council of Legal Education, Gray’s Inn, Greenwood began with the San Diego District London Barrister’s Finals, 1978 Attorney’s Office in March 1993, and began leading College of Law, Guildford, Surrey, the Elder Abuse Prosecution Unit in January 1996. England Law Society Finals, 1979 Though he can impress with trial statistics and Admitted to California Bar, 1991 national media appearance lists, the most impres- sive credential for Greenwood is his dedication to Years in Practice: 29 training those who will take his crusade back to their own communities. Greenwood has trained in Practice Area: Criminal Prosecution; Head of Elder Kansas before, forging an alliance with Wichita’s Abuse Prosecution Unit since January 1996 TRIAD to combat physical, emotional and financial elder abuse in the Sedgwick County area. Qualifications and Experience: • Elder abuse, like the other types of abuse Kansas District Attorney's Office prosecutor since March 1993 • prosecutors encounter on a daily basis, can present Involved in the prosecution of over 300 felony cases of elder and dependent adult abuse unique dynamics and may raise obstacles to investi- • Prosecuted nine murder cases and in seven of them gation and prosecution in a variety of ways. First, obtained a first degree murder conviction the relationships between the parties may cause • Co-chair of California’s DA Elder Abuse Committee the abused victim to try to protect their tormentor, • Assisted with drafting Elder Abuse legislation for or the lack of a relationship may make the abuser California Evidence Code sections 1380 and 1109 impossible to identify. The victim’s vulnerability • Former member of Board of Directors for the may cause reluctance to report, or the victim’s fear International Network for Prevention of Elder Abuse of being judged and losing freedoms may lead • San Diego DA’s Elder Abuse Prosecution Unit to silence or denial. Finally, a perceived loss of was awarded the California State Association of memory may make law enforcement and prosecutors Counties’ Challenge Award in 1998 loath to rely on the testimony of an elderly person in • Named as one of the “Lawyers of the Year” by the proving a crime. California Lawyer magazine in December 1999 None of these dynamics are completely unique • An instructor with the California District Attorneys to the prosecution of those who abuse the elderly, Association (CDAA); the National District Attorneys but Greenwood presents real-life examples of the Association, and the American Prosecutors Institute • challenges he has overcome in raising awareness about Member of UCSD’s Advisory Board on its Certified Trauma Specialist program to legal nurse consultants elder abuse, in increasing law enforcement sensitivity • Awarded the 2005 “Visionary for Change” Award in to the crimes, and in presenting the case to a jury. October 2005 at the Dementia Care Conference, San One big change for the spring 2009 conference is Diego. that it will be held on a Thursday and Friday instead • Awarded the 2006 San Diego County Bar Associa- of the previous Monday and Tuesday schedule. So, tion Public Service Attorney award mark your calendars for June 18-19, 2009 at the • Awarded the Professional Leadership Award in Hyatt Regency Hotel in Wichita, and watch the February 2007 by Elder Financial Protection KCDAA website, www.kcdaa.org, for more informa- Network tion as it is available. We hope to see you there. For Paul Greenwood’s full biography, visit www.kcdaa.org.
30 The Kansas Prosecutor Spring 2009 KCDAA Spring 2009 Conference
Fighting Elder Abuse
Thursday, June 18 - Friday, June 19, 2009 Hyatt Regency Hotel Wichita, KS
Featuring Keynote Speaker: Paul Greenwood, Deputy District Attorney V Office of the District Attorney, San Diego, CA Kansas County and District PRSRT STD Attorneys Association U.S. Postage PAID 1200 S.W. Tenth Avenue Permit No. 9 Topeka, Kansas 66604 Topeka, KS Return Service Requested