Kansas Supreme Court opinion No. 100,512 filed July 22, 2011

Kansas Supreme Court opinion No.  100,512 filed July 22, 2011 states:

"After reviewing the felony-murder instruction rule's historical development, we conclude its use should cease. K.S.A. 22-3414(3) should be applicable to felony murder. Instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. Language to the contrary in previous opinions is disapproved."

http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2011/20110722/100512.pdf

This is a big win for defense attorneys.  Please see Lindsey or Dionne at www.ericksonscherff.com<http://www.ericksonscherff.com> to see how this opinion may affect your charge, conviction, and/or appeal.

Retroactive application of Padilla

Retroactive application of Padilla

Previous blogs have discussed the March 2010 Supreme Court case, Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that a defense lawyer's representation of an immigrant was below par when the lawyer failed to advise the defendant that his plea agreement would result in automatic deportation.  Id.  Since the Padilla decision, many defense attorneys and multiple courts have questioned whether Padilla applies retroactively.  That is, does the decision apply to cases decided before Padilla.

In June, the Third Circuit answered the question for its district courts concerning retroactive application, holding that yes, Padilla does apply retroactively: "[W]e hold that Padilla is retroactively applicable on collateral review."  United States v. Orocio, 10-1231. 2011 WL 2557232, *1 (3d Cir. June 29, 2011).

While the Tenth Circuit (Kansas's federal circuit) has discussed the Padilla decision, there has been no discussion as to the retroactive application concerning Tenth Circuit defendants.

See Lindsey and Dionne at www.ericksonscherff.com<http://www.ericksonscherff.com/> for information on how these decisions could affect your charge, conviction and/or appeal.

Ethics In The World Of Prosecution

Prosecutors are held to a higher ethical conduct than other practicing attorneys.  As the Supreme Court of Kansas put it:

A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.

State v. Pabst, 268 Kan. at 510, 996 P.2d 321.

            Thus, when a prosecutor questions a criminal defendant and presents the state's case at trial, he or she is responsible for more than just winning a case, the prosecutor is responsible for furthering justice, even if that means not winning a case.

            For example, a case from 2001, State v. Campbell, 29 Kan. App. 2d 50, 23 P.3d 176 (Kan. Ct. App. 2001), reversed a defendant's conviction due to the prosecutor's "serious misconduct which denied the defendant a fair trial."  Id. at 54.  The prosecutor in the Campbell case had information that she did not disclose until during trial, thus not allowing the defense attorney to conduct an adequate defense case.  Furthermore, it was shown that the prosecutor factually mislead the defense in a way to ultimately cause the defense to loose.  Id. at 62

            The court concluded that three factors are considered when determining whether a prosecutor has fallen short of proper ethical conduct:

In this state, three factors are to be considered in determining this issue.  First, was the prosecutorial misconduct so gross and flagrant as to prejudice the jury against the defendant?  Second, do the statements show ill will by the prosecutor?  Third, is the whole evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor's prejudicial conduct changed the result of the trial?  Id.