Friday, July 24
Carl Folsom recently won a dismissal for his client in City of Topeka v. Roberts. In this case, our client was originally charged in Topeka Municipal Court with carrying a concealed weapon. The arrest was based on an incident where Mr. Roberts was actually lawfully openly carrying his firearm at the Topeka Mall.
On May 19, 2010, Mr. Folsom won an acquittal on the concealed weapon charge in a municipal court trial to a judge, even though the arresting officer testified at trial that the gun had been concealed during the incident. Despite this acquittal, however, the City initially won a conviction on a charge of unlawfully transporting a firearm in a vehicle. This charge had been added five minutes before trial.
Mr. Roberts appealed the unlawful transporting a firearm conviction to the Shawnee County District Court, and the City ultimately agreed to dismiss the charge. Thus, Mr. Folsom won an acquittal or a dismissal on every charge in the case.
The Topeka Capital-Journal recently published an article on this case, located here.
At Bell Folsom, P.A., our attorneys have vast experience litigating gun cases. We have fought charges like this at the municipal, state, and federal level. We have fought for our clients’ Second Amendment rights and their right to open carry. If you've been accused of a firearms offense in Kansas, contact us today to see how we can start helping you.
Friday, July 2
Apologies for the delay. We were down one attorney for a couple of weeks this month, as will be explained below.
First, Carl Folsom III has recently completed a two-week course at the National Criminal Defense College in Macon, Georgia. It is a prestigious college that only accepts outstanding criminal defense attorneys. During the course, Carl trained every day by delivering opening statements, direct examinations, cross-examinations and closing statements. The roles of witnesses were played by professional actors, who worked to suprise and challenge the attorneys.
Second, the United States Supreme Court recently ruled in McDonald v. Chicago. In that case, the Court expanded its ruling in Heller. In Heller, the Court ruled that the federal government could not prohibit citizens from poseessing firearms under the Second Amendment. In McDonald, the Court expanded that ruling against the states as well. The Court reiterated and clarified its ruling, holding that the Second Amendment is a "fundamental right," which makes any government attempt to limit that right especially difficult. The Court's ruling will have significant ramifications on state laws prohibiting firearm possession by those convicted of non-violent felonies.
Third, we got another big win this week. Our client had been extradited from Colorado on charges of attempted aggravated robbery, battery and criminal damage to property. The case was about five years old, and the client didn't even know about the case, as he had moved to Colorado before charges had been filed. We were able to convince the prosecutor that our client had established a life free from criminal activity, that the alleged crimes happened a long time ago, and that society would be better served by letting our client go back to his life. The prosecutor agreed, allowing our client to plead to simple misdemeanor charges and return to Colorado with unsupervised probation.
When you are faced with criminal charges, it's imperative that you hire an experienced firm. At Bell Folsom, P.A., all we handle are criminal cases. Contact us today so that we can start making that experience work for you.
Friday, June 4
A couple of big wins over here this week. In our first case, we were able to secure a dismissal for our client when he was charged with Aggravated Battery pursuant to Kan. Stat. Ann. 21-3414(a)(1)(a). If convicted, our client was looking at about 4 years in prison. Part of the reason we got the case was dismissed was through aggressive questioning of the complaining witness during the preliminary hearing.
A preliminary hearing is a right all persons charged with a felony have. There is no jury, but the State must convince the judge that 1) there is probable cause to believe a felony was committed and 2) there is probable cause to believe the defendant committed the felony. The State does this by calling witnesses and introducing evidence. In short, it is an excellent way to get a preview of the State's case and test the strength of the witnesses. In this case, the complaining witness admitted, among other things, that she had routinely called the police and lied to them about things the defendant had done when she was mad at the defendant. After an admission like that, no sane prosecutor would try that case.
Some attorneys routinely waive, or give up, their client's right to a preliminary hearing. This practice is baffling to us. It doesn't cost the client or the case anything to have the preliminary hearing, you get an early chance to test the State's case, and oftentimes you learn something you would not have known without the hearing. Experienced criminal attorneys know this, and you almost never see them waive their preliminary hearing. Out of both my and Mr. Folsom's career, I can only think of a handful of times that a preliminary hearing was waived and they were all because the client was getting an amazing plea deal. On the other hand, we've had several cases dismissed because we insisted on a preliminary hearing.
Our second case was that we successfully stopped a misdemeanor theft charge from being elevated to a felony - not once, but twice. During the first preliminary hearing, the client was charged with felony theft for allegedly stealing an amount of $1,000 or more. Kan. Stat. Ann. 21-3701(b)(3). However, the State was not able to prove the value of the items taken at the hearing, so the Court only found misdemeanor theft. Later, the prosecutor again tried to elevate the crime to felony theft based on the client's prior convictions. Kan. Stat. Ann. 21-3701(b)(6). In response, we argued that 1) the prior convictions were from out of state, and 21-3701(b)(6) says you can only use Kansas theft convictions to elevate the crime to a felony, 2) the out of state theft statutes that the client was convicted of are different from the Kansas theft statutes, and therefore shouldn't apply anyway, and 3) the documents the State was putting forward do not show that the defendant had counsel at the time of his conviction, and therefore couldn't be used, pursuant to State of Kansas v. Youngblood, 288 Kan. 659 (Kan. 2009). After hearing our arguments, the court gave the State time to respond in writing. After their response was late, the State essentially gave up. No felony charges for the client.
Both of these cases illustrate a couple important points. 1) Never waive the preliminary hearing unless the client is getting an amazing deal and knowingly waives the hearing to receive that deal. 2) When prior convictions are being used to attempt to elevate a sentence, pay careful, thorough attention to a) the statute at issue and b) the documents being used to establish the conviction. Some statutes allow for the use of out-of-state convictions to elevate the crime, such as Kan. Stat. Ann. 8-1567 (DUI), and some are silent on the subject, such as Kan. Stat. Ann. 21-3701(b)(6) (Theft) and Kan. Stat. Ann. 21-4704(l) (Burglary).
If you're facing a felony conviction, it's important to talk to a firm with experience. At Bell Folsom, P.A., all we handle are criminal matters. We have extensive experience in making the legal arguments that can save you from a felony conviction, or any conviction at all. When it's your life on the line, don't settle for less. Our phones are answered 24 hours a day, so give us a call and let us start using our experience for you.
Friday, May 28
In State v. Aguilar, Case No. 95,249 (May 21, 2010), the Kansas Supreme Court recently ruled that a defendant had shown the “good cause” necessary to withdraw her guilty plea, and in the process, the court set a new legal standard for how lower courts should evaluate plea withdrawal motions. The defendant in the case was represented on appeal by Carl Folsom, a partner at Bell Folsom, PA.
In the district court, Ms. Aguilar and her co-defendant were represented by the same attorney. Both Ms. Aguilar and the codefendant entered guilty pleas to possession of cocaine. Although, Ms. Aguilar pled out as charged, and the co-defendant received a plea deal that involved several offenses being dismissed. Ms. Aguilar attempted to withdraw her plea before sentencing, and the district court would not let her.
On appeal, Mr. Folsom argued that the district court should have allowed Ms. Aguilar to withdraw her guilty plea before sentencing because it was a conflict of interest for the same attorney to represent both Ms. Aguilar and the co-defendant during the plea process. Mr. Folsom also noted the financial pressures that Ms. Aguilar encountered and the fact that the district court never advised Ms. Aguilar of the maximum sentence for the charge for which she had pled guilty. Mr. Folsom’s oral argument in the case can be listened to here.
The Kansas Supreme Court ultimately held that the district court should have allowed Ms. Aguilar to withdraw her plea agreement. In its holding, the court set forth a new standard for how lower courts should evaluate motions to withdraw plea that are filed before sentencing. While the “competence of counsel” had always been a factor for evaluating these plea withdrawal motions, the court held that this factor should not be “mechanically applied to demand that a defendant demonstrate ineffective assistance arising to the level of a violation of the Sixth Amendment.” Thus, the holding in Aguilar effectively will make it easier for many defendants to withdraw their guilty pleas before sentencing in the future.
As this case shows, the attorneys at Bell Folsom, PA are experienced at handling criminal appeals and at handling motions to withdraw pleas. It also shows the danger of choosing the cheap attorney over the good attorney. With legal representation, as in all things, you get what you pay for. In Ms. Aguilar’s case, even though reversed by the Kansas Supreme Court, it was was too little, too late. She had already served her time in prison by the time this opinion was released. If you need representation in either of these areas, you should contact Bell Folsom, PA as soon as possible.
Wednesday, May 19
Carl Folsom recently won a case in municipal court regarding a client's Second Amendment right to openly carry a firearm. In City of Topeka v. Roberts, a client was charged with carrying a concealed weapon when he went to a Topeka area mall with a firearm openly displayed in a holster on his belt. City police arrested the client, even though the firearm was openly displayed. We argued that our client had a Second Amendment right to "open carry" a firearm, and there was no law against it. The judge agreed and dismissed the charge.
Here is a link to a newspaper article regarding the case: http://cjonline.com/news/local/2010-05-19/man_convicted_of_gun_transport
At Bell Folsom, P.A., we have vast experience litigating gun cases. We have fought charges like this at the municipal, state and federal level. If you've been accused of a firearms offense, contact us today to see how we can start helping you.
Friday, April 16
The right appellate lawyer can make all the difference
In State v. Elnicki, No. 96,987 (April 8, 2010), the Court of Appeals recently dismissed the
State's appeal of a district court’s finding of ineffective assistance of counsel at a “Van Cleave” remand hearing. The case had been on direct appeal, but it was remanded to the district court for a determination of whether Elnicki’s trial counsel provided ineffective assistance of counsel (pursuant to State v. Van Cleave, 239 Kan. 117 [1986]). The district court found that trial counsel was ineffective and that this prejudiced the outcome of Elnicki’s trial. Thus, the district court ordered a new trial for Elnicki. The State appealed the district court’s grant of a new trial.
Based on Elnicki’s argument, the Court of Appeals dismissed the State’s appeal on jurisdictional grounds. The court noted that the right to appeal is strictly statutory, and it rejected the State’s claimed statutory basis for the appeal. The court held that the case was not a “question reserved” as the State claimed, because it did not involve an issue of statewide importance. The court also held that the “Van Cleave” remand hearing was not the same as a K.S.A. 60-1507 hearing, so the State did not have a right to appeal under K.S.A. 60-2102.
This case highlights the importance of having an attorney that is experienced in handling appeals and who is well-versed in appellate procedure. Carl Folsom, III, a partner at Bell Folsom, P.A., has handled hundreds of criminal appeals and has won cases on similar jurisdictional grounds. For example, in Casner v. State, 37 Kan. App. 2d 667 (2007), the Court of Appeals agreed with Mr. Folsom that the State did not have the right to appeal the outcome of an “Ortiz” hearing (where the district court decides whether or not the defendant can appeal out of time). Because Casner had won the “Ortiz” hearing in the district court, and because the State’s appeal was dismissed on jurisdictional grounds, Casner’s direct appeal was allowed to proceed, and his sentence was reduced substantially as a result.
At Bell Folsom, P.A., our attorneys are experienced and knowledgeable about the nuances of handling an appeal. This includes knowledge of appellate procedure as well as knowledge of the substance of various issues in criminal law. If you need a lawyer to handle an appeal in state or federal court, contact us immediately so we may assist you.
Friday, April 9
Another victory for the attorneys at Bell Folsom, P.A. Our client had been charged with misdemeanor possession of marijuana. The State, convinced that our client had a previous conviction for possession of marijuana, attempted to elevate the charge to a felony. If convicted, our client was looking at a sentence of over 3 years in prison.
Thankfully, the previous conviction that the State was relying on was from a municipal court. Municipal courts are notorious for keeping bad records; records that a prosecutor might have to rely on to prove a previous conviction. The prosecutor attempted to use a computer printout of a conviction for possession (possession of what, it didn't say) against our client.
We used two different arguments to prevail against the State's attempt. First, we argued that the printout did not identify the specific type of crime of conviction (possession of cocaine, for instance, versus possession of marijuana), and therefore could not be used against our client under the statute. (Example: You can't use a prior possession of LSD conviction to enhance a current possession of marijuana to a felony. The type of narcotics possessed must be those listed specifically in the statute.) Second, we argued that there was not enough identifying information in the computer printout to prove that the person who had been convicted was actually our client. And third, we argued that there was no evidence that our client had either received or waived his right to counsel during the previous conviction. According to the Kansas Supreme Court in State v. Youngblood, decided roughly a year ago, the State cannot use uncounseled (i.e. with no lawyer) convictions to enhance someone's sentence. Moreover, the State has the burden of proving that, during the previous conviction, the person charged either had a lawyer or had waived their right to a lawyer. On the computer printout, the State couldn't prove anything about a lawyer.
The State dismissed the charges and the client walked out of the courthouse a free man.
The lesson in this victory is this: always, always, always investigate criminal history. Don't simply rely on what the State tells you your criminal history is. At Bell Folsom, P.A., our experienced criminal attorneys always investigate the alleged criminal history of our clients, more often than not before the client even sets foot in the courtroom. That investigation and a knowledge of cutting-edge legal arguments often keep our clients out of jail.
Friday, April 2
On March 31, 2010, the US Supreme Court issued the opinion in Padilla v. Kentucky, placing a duty upon defense counsel to inform noncitizen clients of the negative immigration consequences of pending criminal charges before pleading the clients out to those charges.
Jose Padilla, a native of Honduras, was a lawful permanent resident of the United States for more than 40 years. During that time, Padilla served with honor as a member of the U. S. Armed Forces during the Vietnam War. Recently, he was facing deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. During plea negotiations in the case, Padilla’s attorney not only failed to advise him of the possibility of deportation prior to his entering the plea, but also told him that he “‘did not have to worry about immigration status since he had been in the country so long.” This advise, however, was flat-out wrong.
The Supreme Court held that the incorrect advise constituted ineffective assistance of counsel during the plea process:
The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.
Unfortunately, this type of situation happens all too often. Many criminal defense attorneys are not schooled in the nexus between immigration law and criminal law. At Bell Folsom, P.A., both of our partners have received training in the immigration consequences of criminal convictions, and they continue to stay abreast of new developments in this area of the law.
If you are a noncitizen that is facing criminal charges, contact Bell Folsom, P.A. immediately. We will help you navigate the criminal justice system without turning a blind eye to how the charges will affect your immigration status.
Friday, March 19, 2010
Here at Bell Folsom, P.A., we handle a lot of DUI charges. Despite that fact that some attorneys think that anyone can handle a DUI, they are incredibly complicated. When Mr. Folsom and Mr. Bell were prosecuting DUI’s, other prosecutors would often joke that trying a DUI could more complex than trying a murder case. One client that we recently signed illustrates how complicated DUI’s can be.
The client in question was recently charged with his second DUI. His first DUI had been over ten years ago, when he was a freshman in college. The first DUI came about after the client blew a .04 BAC with the Intoxilyzer 5000. Now, under Kansas law (K.S.A. 8-1567), you must blow a .08 or above to commit the crime of driving under the influence. However, under K.S.A. 8-1567a, it shall be unlawful for anyone under 21 to drive with a BAC of .02 to .07. However, K.S.A. 8-1567a does not have a penalty provision, meaning that the law does not say that if you’re under 21 and drive with over a .01, you have to serve so many days in jail or pay a fine of a certain amount. Many prosecutors and defense attorneys don’t understand this, and charge people under 21 with a BAC of .02 through .07 with DUI. Because most people don’t understand this law, clients sign up for a diversion on this charge even though it doesn’t charge a crime and the diversion is essentially worthless.
Here is where things get interesting: say you get a second dui charge once you’re over 21. The breath test on the Intoxilyzer 8000 reads .08 or above. A second DUI in Kansas carries a mandatory minimum five days consecutive jail sentence, with a potential one year sentence, plus a mandatory minimum $1,000.00 fine. It’s a serious charge. Under Kansas law, if you’ve already had a diversion for DUI, you cannot get a second one. So, if you got a worthless, unnecessary diversion when you were under 21, it will still stop you from getting a second diversion for your second, actual DUI charge.
This is the difference between a knowledgeable criminal defense firm and one that “dabbles” in criminal defense as well as any other type of law someone is willing to pay them to try. Would you be comfortable with a pediatrician performing open heart surgery on you? Of course not. You want the doctor who has specialized in cardiac medicine. The choice of a lawyer is no different. When it’s your freedom on the line, don’t pick an amateur.
As an epilogue, we have discovered a way to get a second diversion for those clients who unnecessarily signed a diversion when they were under 21 (unfortunately, it does not include requesting a refund from their first attorney). The law that prohibits a second diversion states that anyone who has received a diversion “under this section,” i.e. under this law, is not eligible for a second diversion. However, the first diversion was arguably obtained under K.S.A. 8-1567a, not K.S.A. 8-1567, so the client should still be entitled to the second diversion. This is an argument we have successfully made and saved our clients mandatory jail time and thousands in fines, fees, and court costs.
If you’ve been charged with a DUI, contact Bell Folsom, P.A. today. We make sure our clients don’t spend one more dime in fees or spend one more minute in jail than they absolutely have to under the law.
Thursday, March 11, 2010
In State v. Long, No. 98,736 (Feb. 26, 2010), the Kansas Court of Appeals recently reversed a defendant’s sentence because the district court had improperly included a misdemeanor conviction in the defendant’s criminal history. The court held that the prior misdemeanor conviction should not have been used to increase Long’s sentence because Long did not have an attorney for the misdemeanor, even though he had faced the possibility of jail time for it. The court relied on State v. Youngblood, 288 Kan. 659 (2009), a recent Kansas Supreme Court case with a similar holding. This is one of a number of reasons why a prior conviction might not count in a defendant’s criminal history score.
At Bell Folsom, P.A., our attorneys have a history of thoroughly examining our clients’ criminal history. Carl Folsom, a partner at Bell Folsom, P.A., once saved a client 8 years in prison based on his investigation of the client’s alleged criminal history. In that case, the prosecution claimed that the client had three prior “person misdemeanors” on his record, which increased the client’s sentence by 8 years. The client’s trial attorney did not object to this criminal history or the higher sentence that was imposed. On appeal, however, Mr. Folsom tracked down the records for these misdemeanors and discovered that one of the prior misdemeanors had been dismissed (so there was no actual conviction). Mr. Folsom discovered that another one of the misdemeanors had actually been committed by the client’s brother! Mr. Folsom filed a motion with the court, and the client’s sentence was reduced by 8 years.
The holdings in Long and Youngblood reiterate how important it is for criminal defense attorneys to vigorously examine all “prior convictions” that the prosecution is trying to use to increase a defendant’s sentence. Some attorneys fail to spend the time or resources to properly examine a defendant’s criminal history score. That will not happen at Bell Folsom, P.A. Our attorneys will pour over every detail of your case in order to make sure you do not spend one day in jail that you are not required to under the law.
Friday, March 5, 2010
Carl Folsom III recently testified before the Kansas legislature regarding the impact of State v. Hendrix, No. 97323, (Oct. 23, 2009). In Hendrix, the Kansas Supreme Court held that, while a person has a statutory right to use force to defend themself, that same person does not have a right to threaten force to defend themself. For instance, imagine that you own a gun and walk in on someone robbing your house. If you shoot the burglar without giving them a chance to flee or surrender, you will not face criminal charges. However, if you tell the burglar to get out or you'll shoot, you are guilty of aggravated assault. The opinion was the epitome of "shoot first, ask questions later."
Because the Kansas Supreme Court blamed the statutes at issue for their holding, the Kansas Legislature got busy fixing the problem. In the process of doing so, Carl Folsom III was asked to come testify in front of a committee of the Kansas House of Representatives regarding the specific statutory language required. After his testimony, the bill was voted out of the full House, and the Senate later passed its own version.
After the United States Supreme Court held that people have a right to self-defense and to possess firearms in District of Columbia v. Heller, 554 U.S. _____ (2008), and with its upcoming decision in McDonald v. City of Chicago, Nos. 08-4241, 08-4243, 08-4244, illegal possession of a firearm will be a much bigger issue in state and federal courts.
If you or a loved one is facing a state or federal charge relating to possession of a firearm, make sure you contact a firm that has experience arguing Second Amendment issues. At Bell Folsom, P.A., our attorneys have recent experience arguing these issues, including:
- Mr. Folsom has in the Kansas appeals courts that a person has a Second Amendment right to carry a concealed firearm.
- Mr. Bell has argued in state district court that a person is entitled to possess a hunting rifle even after they've been convicted of a felony as long as the felony was non-violent.
- Mr. Folsom is preparing to argue that a person is entitled to openly carry a firearm when there is no law prohibiting it.
- Mr. Bell has argued in federal court that the Second Amendment completely bars any prosecution of being an illegal immigrant in possession of a firearm.
It's important to choose a firm that knows the latest developments in the law, how to frame those developments to your case, and make a persuasive argument based on those developments. When you or your loved one's freedom is on the line, don't settle for an attorney who hasn't focused on these issues. Contact us today so that we can start helping you today.
Friday, February 26, 2010
Branden Bell and Carl Folsom III recently returning from a conference in Austin, Texas, which focused exclusively on criminal defense. The conference was hosted by the National Association of Criminal Defense Lawyers, an organization committed to quality defense of those accused of a crime. Among the topics discussed were:
Brady violations - in the case of Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that the prosecution has an absolute obligation to turn over evidence that is exculpatory, or helpful, to the defense. The problem with enforcing Brady is that the prosecutors, who are in possession of all of the evidence, get to decide what evidence is "exculpatory" or helpful to the defense. This provision is often subject to abuse and it can be devilishly hard to prove that the prosecution had material that it failed to turn over. At the conference, former federal prosecutors discussed how they dealt with Brady issues and gave secret tips on how to make sure the prosecution is fulfilling their obligation under Brady.
Confrontation Clause - this is one of the hottest issues in criminal defense. If a person has accused a defendant of something, that person should come testify to that statement at trial so that the defendant can cross-examine them about the statement. This was the holding of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). The courts are now weighing whether the witness must testify at trial in all circumstances, or there or some, such as involving child witnesses or where the defendant has prevented the witness from coming to trial. At the conference, attorneys discussed how courts have handled this issue, the best arguments to make, and how courts are expected to rule.
Pretrial Asset Forfeiture - a little known fact: if the prosecution so desires, it can freeze your bank accounts, take your car, your house and your property before you've even been charged with a crime, much less convicted of anything. All of these things are lawful under a byzantine pretrial forfeiture provision in federal law, and most states have similar statutes. To do this, a prosecutor only has to convince a judge that its more likely than not that the property was obtained through illegal means. No one else is present to argue against the prosecutor, because no case has been filed. If the judge signs off on it, you could become poor overnight. During this conference, we discussed tips and strategies to keep the prosecution from seizing your property or, if its already been seized, going to get it back.
There were many other topics discussed during the conference as well. Mr. Bell and Mr. Folsom frequently attend and present at conferences such as these because its important that criminal defense attorneys know the current state of the law in multiple areas and are familiar with state-of-the-art strategies to make sure their clients don't spend one unnecessary day in jail.
Friday, February 12, 2010
Bell Folsom, P.A. has been contacted by an Innocence Project to help reverse a wrongful conviction. The case is extremely complicated, but essentially it seems that the client was wrongfully convicted of first degree murder because his trial counsel did an inadequate job.
There is a way to get a conviction reversed when your attorney at trial doesn't do what they should - it's called ineffective assistance of counsel, and it's somewhat difficult to prove. First, unlike the "guilt" part of the hearing, the burden is on the defendant, not the prosecution, to prove that the lawyer was ineffective. Second, even if you prove your lawyer was ineffective, you still have to prove "prejudice" - meaning that if the lawyer had done what they were supposed to do, the jury's verdict would have been different.
This case has really brought home to us how important the choice of a lawyer is. Even if you are completely innocent of the crime charged, your case depends on your lawyer's ability to perform a proper investigation and have the facts ready to demonstrate your innocence to the jury. It also depends on your lawyer's ability to identify, research and argue the appropriate issues.
At Bell Folsom, P.A., our attorneys practice nothing but criminal defense. We have devoted years to perfecting our practice, and are always looking for ways to improve. If you have been charged with a crime, whether it be a DUI or murder, be certain that you are hiring a firm that knows what they're doing. Because when it's your life on the line, amateurs simply aren't going to cut it.
Friday, January 29, 2010
Two more victories. In the first case, the client was charged with a drug felony for possession of a large amount of marijuana. Our firm filed a motion to suppress the search of the client's care, citing a violation of the Fourth Amendment. An officer cannot simply begin searching a car without some reasonable suspicion that criminal activity is afoot. When the prosecutor read our motion, they dismissed the drug charge. Our client paid a speeding ticket.
In the second case, our client was charged with a fifth DUI. This is a felony charge in the state of Kansas and carries significant mandatory prison time. Our firm filed a motion to suppress the results of the Intoxilyzer 8000, citing numerous problems with the testing procedure. When the prosecutor read our motion, they dismissed the DUI charge. Our client will pay a $100 fine.
Being able to spot potential issues in your cases requires a mind focused solely on criminal defense. Being able to write and argue motions based on those issues requires years of experience that only can be gained by performing solely criminal defense work.
Make no mistake: These motions can end a case before it starts, and can mean the difference between freedom and prison.
Friday, January 22, 2010
Our firm recently secured a victory for a client charged with Aggravated Assault and Battery. Under cross-examination by our attorneys, the alleged victim admitted that he was not in fear of bodily harm when our client held a knife to his throat. Because one of the elements of aggravated assault is an "imminent fear of bodily harm," the judge was forced to throw out the charge of aggravated assault. Our firm then filed a motion to dismiss the battery charge, citing self-defense. The prosecutor opted to withdraw that charge as well. The client, once facing over a year in prison, will now serve no time in jail.
Stories like this illustrate what an experienced criminal defense firm can do for you. If your freedom is on the line, it is critical that you hire a firm that doesn't just dabble in criminal defense, but specializes in it.
Friday, January 15, 2010
Sex Offender Laws & the Ex Post Facto Clause
During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. We’ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment. We also discuss the case of Carr v. United States, currently pending in the U.S. Supreme Court, which involves an Ex Post Facto Clause challenge to the retroactive application of the Sex Offender Registration and Notification Act (SORNA).
Missouri
Earlier this week, the Missouri Supreme Court held that laws regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect. Here is the court’s opinion, and here is a KC Star article on the case.
Nebraska
As explained here, a federal district court judge enjoined part of Nebraska’s new sex offender law, holding that Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences:
(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and
(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).
The court held
[F]or offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”
Here is the full text of the judge’s order.
Maine
As detailed here, in State v. Letalien (2009), the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. The Maine Supreme Court held that the change in the registration law violated the US Constitution’s prohibition against ex post facto punishments, noting that the Federal and Maine Constitutions provide the same Ex Post Facto protections.
Indiana
In Wallace v. State (2009), the Indiana Supreme Court held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the ex post facto clause of the Indiana Constitution.
Kentucky
In Kentucky v. Baker (Oct. 1, 2009), the Kentucky Supreme Court held that KRS 17.545, which restricts where registered sex offenders may live, could not be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. The court noted that the retroactive application of the statute was an ex post facto punishment, which violated Article 1, Section 10 of the United States Constitution and Section 19(1) of the Kentucky Constitution.
Ninth Circuit
The Ninth Circuit Court of Appeals declared in U.S. v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders:
We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.
Upcoming SCOTUS decision
In Carr v. United States, Docket No. 08-1301, the US Supreme Court will soon consider an ex post facto challenge to SORNA. Oral argument is scheduled for February 24, 2010. The issue to be decided is:
Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
Here is a nice amicus curiae brief (written by Doug Berman, Wayne Logan, and Corey Yung) that argues that SORNA violates the Ex Post Facto Clause of the U.S. Constitution.
At Bell Folsom, P.A. our attorneys have experience fighting some of the most cruel and unusual sex offender provisions signed into law. Our experienced team of trial attorneys, appellate attorneys, experts and investigators work to ensure that none of our clients have to undergo such inhumane treatment.
January 7, 2010
Recently, in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009), the Kansas Supreme Court upheld the suppression of evidence following a traffic stop when the officer's reason for pulling over the driver was that the car “failed to maintain a single lane.” This type of justification for a traffic stop arises often in DUI cases and drug cases that involve a traffic stop.
The Marx decision held that a vehicle's failure to maintain a lane is not a sufficient reason for an officer to make a traffic stop of the vehicle. The officer must believe that the failure to stay in the lane was not based on the fact that it was impractical to do so (such as weather conditions, obstacles in the road, etc.). At a suppression hearing, when the State wants to prove the lawfulness of a traffic stop based on the “failure to maintain a lane,” the State must provide the court with evidence of more than “incidental and minimal lane breach.”
The Marx decision was recently relied upon by two different panels of the Court of Appeals in State v. Sullivan, No. 101, 850 (Kan. Ct. App. Oct. 16, 2009) (unpublished) and State v. Jimeson, No. 102,158 (Kan. Ct. App. Nov. 13, 2009) (unpublished). Both of these cases involved DUI arrests where the evidence of the traffic stop was ultimately suppressed.
At Bell Folsom, P.A, our attorneys have won the suppression of evidence in traffic stop cases based on the rationale used in the Marx decision. Our attorneys are well versed in the most recent case law regarding traffic stops and are experienced in holding the State to the burden of proving the lawfulness of traffic stops.
December 18, 2009
Today the Kansas Supreme Court released its decision in State v. McMullen, a Jessica's Law case. As part of his appeal, the Defendant claimed that his so-called "confession" was the result of police deception. Unfortunately, the Supreme Court found that his defense attorney had failed to include evidence of such deception in the record, which means the Supreme Court couldn't review it.
"McMullen's first obstacle is self-inflicted. The record on appeal does not provide the information necessary for this court to review the factual findings upon which the district court's decision was based. Apparently, McMullen['s lawyer] did not file a suppression motion, but rather the Jackson v. Denno hearing was requested by the State. Consequently, we have no record of the arguments that McMullen['s] lawyer presented to the district court. Further, without the hearing transcript, we have no record of the State's evidence and, obviously, cannot determine whether that evidence was substantial and competent so as to carry the State's burden. Most importantly, the appearance docket, which simply states that McMullen's statement was admissible, is the only record of the court's ruling on the matter, i.e., we have no findings of fact to review. Moreover, the only conclusion of law presented by the record for our review is the ultimate determination by the district court to admit the confession.
"At oral argument, McMullen['s lawyer] acknowledged that it is his duty to properly designate the record on appeal to support his claims of error. See State v. Trussell, 289 Kan. 499, 507, 213 P.3d 1052 (2009); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). If that record is inadequate, the appellate court presumes the district court's findings were properly supported and the claim of error must fail. Trussell, 289 Kan. at 507 (citing State v. Haney, 34 Kan. App. 2d 232, 236, 116 P.3d 747, rev. denied 280 Kan. 987 [2005]); Paul, 285 Kan. at 670."
This holding illustrates why it is critical - critical - to have an experienced criminal defense attorney in all stages of the proceeding. The fact that McMullen's lawyer never filed a suppression motion may have, in and of itself, stopped the Supreme Court from reviewing his confession. Even worse, his appeal lawyer didn't even have a transcript of the hearing added to the record! That failure is inexcusable, because without that transcript the Supreme Court has no basis to find McMullen's confession was the result of deceptive police tactics.
At Bell Folsom, P.A, our attorneys have filed hundreds of appeals. We know how to include critical evidence in the record and avoid negligent "self-inflicted wounds." And if you don't believe that an experienced criminal defense attorney is important, just ask Mr. McMullen. He'll be spending the next fifty years of his life in prison.
December 11, 2009
In State v. Wells, No. 99,813 (Kan. Dec. 11, 2009), the Kansas Supreme Court ordered a new trial in a Riley County criminal sodomy prosecution. The Court reversed based on the improper admission of prior bad act evidence for "motive" and "intent." The Court restated the standards regarding admission of this type of evidence and then analyzed whether "motive" was a disputed issue in the case:
"In our view, the use of the defendant's prior bad acts to ostensibly prove his motive for entering the bedroom here is a dangerously short step away from simply using prior bad acts to prove his motive for committing the current, virtually identical, bad act. A prosecutor might argue: 'We know his motive for going to her room that night was to sodomize her–because the evidence shows that he had sodomized her in this same house, perhaps in this same room, on prior occasions.' Indeed, the language chosen by the State comes close to making this very argument in the instant case.
. . . .
"Conviction for mere 'propensity'–defined by The American Heritage Dictionary of the English Language 1048 (1971), as an innate inclination, a tendency or bent–would be the almost certain result of admitting this evidence for motive. If this evidentiary admission practice were approved, prosecutors would understandably begin pressing trial courts for admission of all other past bad acts of a defendant to serve as motive for his or her present charges, especially when any degree of similarity existed."
Similarly, the Court analyzed "intent" as a potential disputed issue:
"If the defendant admits the conduct but offers an 'innocent' explanation, the Dotson court suggests the evidence of other crimes is admissible on intent. But if, as in Dotson, the defendant admits the conduct and offers no explanation, and no inference can be drawn regarding the innocence of the conduct, the evidence is not admissible on intent. When a defendant wholly denies committing the alleged acts, admitting evidence of prior bad acts to prove intent is error."
This holding is a significant limitation on prosecutors' favorite tool: using bad things from a person's past to prove that they must be guilty. It is one of the most abused tools in the prosecutors' arsenal, and it depends upon the jury essentially deciding a defendant is a bad person instead of deciding whether or not they are guilty of a crime.
Our firm has had signficant success in keeping this type of evidence out of court based largely on the reasoning the Court stated above.