Commentary: Has the Kansas Supreme Court quietly hobbled Jessica’s Law?

On July 2nd 2009, the Kansas Supreme Court handed down State v. Bello, in which it ruled that Juan Jose Bello’s life without parole for 25 years sentence under Jessica’s Law was invalid because his age had not been presented to the Jury to be proven beyond a reasonable doubt. The relevant part of Jessica’s Law applies to those aged over 18. On July 24th it applied the same precedent in State v. Gonzales. On August 14th, it applied the same precedent in State v. Morningstar. Bello’s actual age is not clear, but press reports indicate that Gonzales was 25 years old at the time of the offenses. Morningstar was 21 and the father of the victim. All three men will be resentenced to shorter spells in prison under the Sentencing Guidelines.

The pattern which is emerging is that a defendant’s age in these cases has not normally been presented to the Jury. Therefore it may be safe to assume that just about every life without parole for 25 years sentence handed down under Jessica’s Law between that law’s taking effect in 2006 and last month will be vacated (except where appeals have already been completed or procedurally defaulted).

So far this issue has received very little press coverage. Articles have dealt with the individual cases as the decisions were handed down but there does not seem to have been much comment as to the overall impact of the ruling, which by returning this batch of cases to the Sentencing Guidelines regime effectively nullifies the intent of the Legislature that these criminals not be released for a very long time.  To be clear, this is something which individual prosecutors and Judges are in a position to correct going forwards by asking Juries to determine that the defendant is in fact over 18. However with the limited coverage of the cases it is quite possible that this is still happening, dooming further Jessica’s Law sentences.

The legal rationale for these rulings is as follows. Under the Apprendi v. New Jersey line of cases from the United States Supreme Court facts which lead to sentencing enhancements must be presented to the Jury to be determined beyond a reasonable doubt. The Kansas Supreme Court held that since age determines whether a convicted child molester receives the life without parole for 25 years sentence, that it is a fact which must be submitted to the Jury. However, Apprendi is far from a settled or uncontroversial decision. The majority cut across traditional lines, consisting of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg, with Justices O’Connor, Kennedy and Breyer in dissent along with then Chief Justice Rehnquist. That Court has seen three changes of membership since the decision was handed down.

It is a little disquieting then that on the Kansas Supreme Court there was not a single dissent on this issue. It seems absurd that age would be considered a fact that needed to be proven – it is fairly obvious when someone is over the age of 18. Nothing in the State v. Bello opinion gave an indication that Bello’s age and eligibility for this sentence was in any doubt, and it would surely be possible to craft an Apprendi exception around facts which are plainly true, as indeed the Kansas Supreme Court has when it has upheld parts of the Sentencing Guidelines relating to prior convictions. Sadly, the Justice system now seems intent on mimicking grocery stores which implement rules that demand that the middle aged and elderly produce IDs before they may purchase tobacco or liquor to save their clerks the the trouble of thought.

A final comment. There are undoubtedly other crimes defined by Kansas Law in which age is a factor. In the post-Roper world the Death Penalty seems a likely candidate, but there are probably others. In extending Apprendi‘s reach in this way the Justices of the Kansas Supreme Court may have given themselves a lot more work in the years ahead.

That also assumes that the juries in trials under this law that are proceeding at present have been informed that they need to make this finding. It is quite possible that this “error” is still happening, dooming further Jessica’s Law sentences.

Decision: State v. Gracey

February 6th. The Kansas Supreme Court has issued its opinion in State v. Gracey (No. 99,310) a “Jessica’s Law” sentencing appeal. In a unanimous opinion, written by Justice Rosen, the Court affirmed that Kendrick Gracey could be sentenced under “Jessica’s Law”, but vacated the sentence pronounced and remanded the case for resentencing. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Kendrick Gracey, 21, fondled a 12-year old girl while she was sleeping on a living room couch. Gracey claimed afterwards that he believed the girl was 16. Sex crimes committed by over 18 year olds against under 14 year olds trigger “Jessica’s Law” which results in a mandatory minimum sentence of life imprisonment without the possibility of parole for 25 years. Gracey pled guilty. Mandatory minimums are not as minimum as people think, however. Even “Jessica’s Law” allows Judges to grant a downward departure in sentencing, and in this case the Judge did that, sentencing Gracey to 55 months. The Judge ruled that he could not grant probation as the law stated that the downward departure sentence must follow the sentencing guidelines which would result in a prison sentence in this case.

Gracey’s appeal initially challenges his sentence being pronounced under “Jessica’s Law”. He notes the importance of the age factor in the law and alleges that his charging instrument did not specify that he was over 18, although he did not object at the time of the trial. Such appeals have a fairly high bar to overcome, since they must show that as a result of any defect in the charge prejudiced the defendants defense. In this case the Court rejects this argument out of hand as the charging instrument included Gracey’s date of birth and stated the age requirement in the law.

Gracey succeeded on his second argument. At sentencing he had sought probation but the Trial Court had ruled that under the sentencing guidelines it had no choice (having found sufficient mitigating circumstances to depart from the mandatory minimum sentence) but to follow the sentencing guidelines which were the alternative approach prescribed in the statute. The Trial Court held that it could issue a downward departure in duration but not in disposition (i.e. Gracey had to go to gaol). Gracey argues that the statute defines a departure as a sentence “inconsistent with the presumptive sentence”, which therefore would include the option of probation. The Kansas Supreme Court agreed with Gracey on this point. It held that once the Judge had found sufficient mitigating circumstances to depart from the “Jessica’s Law” sentence, he could have then found those same circumstances sufficient for a further departure from the sentencing guidelines (as laid out therein) to probation. It did not hold that the 55 month sentence was an illegal sentence. While Gracey’s sentence is vacated and the case remanded for another go, the District Court is only instructed to determine whether probation is appropriate. Should it determine otherwise it could still choose prison.

The Court noted that the law at issue was amended in 2008. Future convictions under this law cannot, even with mitigating circumstances, receive probation. Gracey was convicted before this amendment was made. This fact further supported the Court’s reasoning that prior to the amendment the District Court could have considered probation.

Commentary: Justice Rosen is clearly concerned in this opinion that the State applied “Jessica’s Law” to Gracey, who has an IQ of 50. However, it occurs to us that the reason for the mandatory minimum under that law is that these kind of offenders are especially likely to re-offend. A low IQ does not alter that fact: indeed perhaps someone with such an exceptionally low IQ is even more likely to reoffend, since they may be less likely to appreciate the criminal aspect of what they are doing. Whether civil commitment is a better option in such situations is another matter.

Analysis: The Sebelius Court

The appointment of Daniel Biles to fill the vacancy created on the Kansas Supreme Court by Chief Justice McFarland’s retirement is in some ways an anti-climax. When the nominating commission announced its three choices it was fairly clear which one Governor Sebelius would pick. As an attorney, Biles does not have a judicial track record that can be pored over to determine where he will take the law, but it is pretty safe to say that his appointment represents another significant leftward shift of the court. A major part of that is Chief Justice McFarland’s retirement*, but one must consider Biles’ record as a litigator (where for example he successfully advocated the Court’s ordering the Legislature to increase education spending). Now, an attorney has a job to do irrespective of his own beliefs, but it is implausible that he would be such a well-connected operator if he did not believe in what he argued for.

But while we must wait to see what impact Justice Biles will have on the law of Kansas it is worth noting that for the first time in its history a majority of the Justices of the Supreme Court will have been appointed by one Governor. For Kathleen Sebelius, a Democrat in an overwhelmingly Republican state, to claim this achievement is doubly notable. The Court she leaves behind as her tenure draws to a close has been stamped with her imprint.

And it is through those last two years of her tenure that we will see how the Court reflects the rest of her legacy. Conservative Republicans will doubtless note the symbolism of her appointing the architect of the Montoy case to the court as the State stumbles into a billion-dollar deficit they largely blame on that case. Democrats will see the Court as a firewall that can protect their interests in what looks to be an exceptionally challenging election cycle for them. And Sebelius herself ponders a Senate bid – one which is now uniquely vulnerable to the Court she picked handing down an unpopular decision.

Long after the Governor has moved on to other things, or retired from public life, the Kansas Supreme Court will extend her influence into the laws and precedents of the state. With Chief Justice McFarland’s retirement, the leadership of the State Judiciary automatically passes to Justice Robert Davis, but at least for the time being this won’t be the Davis court, but rather the Sebelius court.

*The Chief Justice has penned a few dissents in criminal cases in recent years, often the lone dissent. Most notable of these was Kansas v. Marsh which was ultimately overturned by the US Supreme Court. It is also fairly likely that that court will again endorse McFarland’s position and not her colleagues when it considers the case of Kansas v. Ventris later this month. [Note: both referenced cases were named as State v. ... during their earlier history].

US Supreme Court Preview – Kansas v. Ventris (Analysis)

This post continues from the background to the case which was published previously. Since the Kansas Supreme Court’s decision in State v. Ventris was based on rights guaranteed in the Federal Constitution the U.S. Supreme Court has jurisdiction to review it. The State of Kansas filed a certiorari petition which the Supreme Court granted, and the case will be argued on January 21st 2009.

Before proceeding any further, it should be noted that in the background of this case is a much bigger issue than the immediate concerns of Mr Ventris, or even the main issue of the introduction of this type of evidence for impeachment purposes. The Warren court decided in Massiah v. United States (1964) that once criminal proceedings had commenced (the right to counsel is said to be attached at this point), statements made by the defendant without his lawyer present were inadmissible. Massiah is a far reaching case, but one which the Court has seemed to back away from in more recent years. When the issue was last addressed in Michigan v. Harvey (1990) the Court explicitly noted that it was not addressing the use of such statements for impeachment purposes. Now, that that latter issue is before it there is clearly fear on the part of the Respondents that the U.S. Supreme Court will trim back Massiah if it finds for Kansas.

In its appeal, Kansas argues that the Kansas Supreme Court erred in its application of an exclusionary rule to evidence used for impeachment purposes. The state argues that as it has crafted its exclusionary rules the U.S. Supreme Court has clearly differentiated between evidence that is admissible in the case in chief and evidence that is only available for purposes of impeaching a defendant’s testimony. Citing caselaw concerning the 4th, 5th and 6th amendment exclusionary rules the state argues that to disallow the use of this kind of evidence for this purpose would create a ‘license to commit perjury’ and that any exclusionary rule crafted should balance between the protection of the underlying constitutional rights and the Trial Court’s role as a truth-seeker. The proper balance it says is to block such evidence only in the case in chief. It notes that well known exclusionary rules such as those stemming from illegal seizures and Miranda rights do not prevent the use of such evidence for impeachment purposes.

The State further argues that the purpose of exclusionary rules is to deter future misconduct by police. Losing the evidence for those purposes is bad enough to deter future miss-steps. It is worth noting at this point that this is an appeal of a conviction for aggravated robbery. Had Ventris’ statements to Doser been admissible in the main case, perhaps he would not have been acquitted of felony murder. The State also makes the argument that other deterrents exist given the increasing professionalization of the police and the existence of Bivens actions and 1983 suits.

The State also takes issue with the Kansas Supreme Court’s use of the term ‘prophylactic rule’. It argues that ,while this is a useful analytical term to describe how the U.S. Supreme Court has crafted its rules, citing it in the way it did the Kansas Supreme Court elevated it to the status of a ‘legal talisman’ that it does not warrant. Perhaps this argument is designed to show a lack of textual fidelity to get the attention of the conservative Justices.

Ventris’ argument takes a different approach. His brief draws a distinction between different types of exclusionary rules – those that protect a constitutional right itself and those that are ancillary to the right. It is these latter ones which have exceptions for impeachment purposes. For example, in the case of the Fourth Amendment and an illegal search, it is the police search which was the violation, not the admission of the evidence at trial. Thus the rule excludes the evidence from the case in chief as a deterrent but does not eliminate it altogether. In contrast, the right to avoid self incrimination concerns the trial itself and is therefore totally exclusionary. At its heart, Ventris’ argument is that the 6th Amendment right to counsel is fundamental to the adversarial process which in turn is fundamental to justice, and that since it is inextricably connected to the trial the only remedy for a violation is total exclusion. His brief cites Powell v. Alabama (1932) for an eloquent argument of why a defendant needs a lawyer in the pre-trial process. This case, he reminds the Court, was why the right to counsel was extended to apply before trial, since today much interrogation happens before any trial which was not the case at the time of the Founding.

As a backup position the brief argues that even if the U.S. Supreme Court does find an exception to the exclusionary rule it should not be as broad as that sought by Kansas but should be limited to cases where a defendant is clearly lying.

Kansas is supported by three amicus briefs. The first two of these (from the United States, and from 24 of the States) break no new ground but underpin and expand on Kansas’ core arguments. The third, submitted by the Criminal Justice Legal Foundation is noteworthy.  While the first section of this brief ties back to the Ventris case, much of it is devoted to an analysis of Massiah, its origins and an argument that Massiah has been superseded by the Court’s holding in Kuhlmann v. Wilson (1986) which allowed confessions collected by a passive listener. The brief focuses on the voluntary nature of Ventris’ conversation with Doser and makes the argument that it should not be classed as an interrogation at all, and therefore Ventris should have no 6th Amendment rights at issue. The brief suggests that the decision of the Kansas Supreme Court was motivated by hostility to informants.

An interesting piece of trivia is that the same passage from Powell, which the Respondents’ brief cited is contained in the CJLF brief too, where it is used to argue that the purpose of the 6th Amendment is to protect a right which exists in the critical stages of a prosecution and that extending those to include the circumstances of this case is too much.

We will have more coverage of this case, when it is argued before the U.S. Supreme Court.

US Supreme Court Preview – Kansas v. Ventris – Background

In January of 2004, after a night spent abusing marijuana and methamphetamine Donnie Ray Ventris and his girlfriend Rhonda Theel went to the house of Ernest Hicks to confront him over rumors that he was abusing his girlfriend’s children. What happened inside the house remains clouded, with conflicting accounts but a few facts are undisputed. Hicks was shot to death and both Theel and Ventris made off with his truck, cell phone and several hundred dollars in cash. Ventris and Theel were apprehended a few days later, and Theel entered into a plea agreement to testify that Ventris was the shooter. The State charged Ventris with Felony Murder, Aggravated Burglary, Aggravated Robbery and misdemeanor theft. In a classic he-said she-said situation, both Ventris and Theel testified that the other had produced the gun and shot Hicks.

While in police custody, detectives had recruited Johnny Doser, a probation violator, to share a cell with Ventris and listen to what he had to say. In the course of the time they were in the cell together Ventris told Doser that he had been involved in a robbery that ‘went sour’ and that he had shot and robbed Hicks. At trial, Ventris’ attorney objected to Doser’s testimony arguing that his deliberate placement in the cell to have conversations with Ventris amounted to an interrogation without the benefit of counsel, a 6th Amendment violation. The State conceded the constitutional violation, but successfully persuaded the Trial Court that the testimony be allowed to impeach (i.e. contradict) Ventris’ testimony that Theel was the guilty party.

The jury acquitted Ventris of the murder and theft charges but convicted him of the robbery and burglary ones. Ventris appealed, and after losing in the Court of Appeals won a 6-1 decision of the Kansas Supreme Court, which held that statements obtained in breach of the 6th Amendment Right to Counsel are not able to be introduced at trial for any purposes at all. In reaching this decision, in an opinion by Justice Rosen, the Court looked at the history of 6th Amendment Right to Counsel claims, along with the history of exclusionary rules.

The Court found that some exclusionary rules (such as Miranda) are ‘prophylactic’ ones created to protect a constitutional right but not embodying a right in themselves. In these cases evidence may be admitted which was collected in breach of them to impeach the contradictory testimony of the accused, per existing U.S. Supreme Court precedent. It found in other cases where exclusionary rules are part of the constitutional right itself, that the exclusion was total. Noting that the United States Supreme Court had not ruled on this issue, it found that while most courts that had addressed it had ruled in the same way as the Trial Court, the Supreme Court of Maine had decided the issue the other way. Having discerned the two approaches it opted for the latter and blocked the admission of this type of evidence. The opinion itself dwells a great deal on the clandestine nature of the use of jailhouse informants. It notes that the 6th Amendment requires a defendant to make a knowing and voluntary waiver of their right to counsel once prosecution has commenced and holds that this cannot happen with an undercover informant.

Chief Justice McFarland dissented. In her view not only was the evidence admissible, but the State was wrong to have accepted that the evidence was obtained in violation of any constitutional right. She felt that an argument could me made to allow it in the main case. Her argument was that the U.S. Supreme Court’s case law on the subject was driven by the issue of whether the statements were made voluntarily or not (in this case they clearly were), and that they would only be barred if involuntarily made.

Down time

The Kansas Supreme Court is unlikely to issue any more opinions in 2008. Opinions are normally issued on Fridays, but the Court is closed this Friday. Posting here will therefore be sporadic until the normal pace is resumed. However, it will be worth checking back, or subscribing to our RSS Feed because while the Court will be quiet, we have a few things to get to here.

First of all, at any time in the next three weeks Governor Kathleen Sebelius will be naming one of three finalists to the vacancy on the Court created by the impending retirement of Chief Justice McFarland.  For our coverage of this topic, click on the Supreme Court Applicants category on the blog menu.

Secondly, on January 21st the United States Supreme Court will hear an appeal by the State of Kansas against a ruling of the Kansas Supreme Court in the case of Kansas v. Ventris (formerly State v. Ventris), concerning limits on the use of a defendant’s uncounseled testimony at trial to contradict their statements in the witness box. We’ll have coverage of that case throughout 2009, starting with an overview of the arguments and what is at stake. To follow that case, click on the KSvVentris tag, below.

Blog Round Up

Other blogs covering the Kansas Supreme Court, or related topics lately:

• Kaw and Border criticizes the selection process for Kansas Supreme Court Justices.
• Kansas Defenders covers the decision in State v. Schow.
• The Kansas Liberty analyzes Planned Parenthood v. Kline and criticizes Justice Beier’s opinion.
• In Re LM covers a Court of Appeals decision restricting who can be prosecuted under the State’s Romeo and Juliet law, which seems destined to head to the Supreme Court.

If you know of any other Kansas-related law blogs, please post links to them in the comments. We would be especially interested in those which have commented on any of the recent decisions of the Court.

Commentary: Hard case, bad dissent

This is a follow up to an item about the decison in In Re Adoption of A.A.T., which appeared a few days ago. Before reading this commentary please read the case overview at that link.  What follows is personal opinion.

The opinions issued in this case can be summarized roughly as follows:

* The majority holds that M.P. missed his (albeit fleeting) opportunity to assert his parental rights as an unwed father. He therefore had no constitutional right to the notice which he was not given. The adoption therefore stands, and A.A.T (who is four years old). remains with the family he has spent his whole life with.

* Justice Nuss clearly thinks the father was wronged and that the adoption should be voided so that M.P. may regain his exclusive rights as a father to A.A.T. He makes no comment on the practical implications of this to A.A.T..

* Justice Beier implies horror at the practical application of her position, but would void the adoption and let the chips fall where they may because she sees the burden on M.P. set by the majority to be too great for him to have had a chance to meet it.

* Justice Rosen would void the adoption but have it replayed under a standard that includes the concept of the ‘best interests of the child’, something which would more or less guarantee that A.A.T. remain with his adoptive parents after several more years of draining legal fights.

It is my opinion that the outcome in this case was the correct one. It is somewhat disturbing that 3 out of 4 Justices on the Kansas Supreme Court would be willing to void the adoption, in the knowledge that to do so would present the likely outcome of a young child being ripped from his home and placed with a stranger who had never so much as seen him solely on the basis of biology. Justice Rosen suggests a way out, but there is no certainty that lower courts would have followed it had one more vote gone the dissenters way. What is more, while Rosen’s position (that the courts in Kansas have already established that the ‘best interests of the child’ is a valid theme in adoption cases) is a strong one, the language he couches it in is practically a license to judicial invention.

Justice Nuss’ dissent is particularly troubling. He praises M.P. for respecting N.T.’s abortion rights by eliminating himself from a role in the decision, then turns around and claims that because N.T. chose not to have an abortion but lied to M.P. about it that he can claim his rights. Does it not occur to Nuss that passively going along with the supposed abortion proves more than any legal analysis that M.P. abandoned his claim on the child?

The dissenters would have you believe that they are obligated to come to the conclusion they do by the state of the law and the current precedents from the US Supreme Court, yet we should remember that the court was not being asked whether M.P. would have prevailed had he attended the original hearing, but whether his failure to attend (for whatever reason) rose to the level of a constitutional violation, great enough to warrant reopening a case that has already been finalized where no such precedent exists in such an extreme situation.

When the US Supreme Court found a due process parental right of unwed fathers attached to the due process rights of parenting, it did so in a case far removed from this one. In that case an unmarried couple raised their children together, until the mother died and the State of Minnesota took the children and put them up for adoption. The father in that case effectively filled the now lost (in law) concept of common law marriage. To extrapolate from that case to the position that the dissenters take is an abomination.