Sunday, May 22, 2022

Kansas Disbars For Prosecutorial Misconduct

The Kansas Supreme Court disbarred a former prosecutor of a murder case for extensive misconduct in argument both to the trial jury and in arguments defending the conviction 

The trial was held in March, 2012. The respondent was the lead prosecutor in Chandler's murder trial. There were 10 days of testimony during which the State called over 80 witnesses and introduced nearly 900 exhibits into evidence. The jury convicted Chandler of two counts of premeditated first-degree murder and the district court sentenced Chandler to two consecutive life sentences, each carrying a mandatory minimum 50-year prison term.

Chandler took a direct appeal of the convictions to the Kansas Supreme Court. Chandler challenged the sufficiency of the evidence and asserted that the respondent engaged in prosecutorial misconduct. On April 6, 2018, the Supreme Court reversed Chandler's convictions based on prosecutorial misconduct committed by the respondent. [State v.] Chandler, 307 Kan. 657, 414 P.3d 713 (2018).

One issue involved an alleged protection from abuse order sought by the victim.

Respondent had argued the direct appeal

Upon additional questioning by members of the Supreme Court, however, the respondent ultimately conceded that there was no document evidencing a restraining or protective order in evidence. After multiple questions by the Supreme Court regarding the statements in her closing argument relating to the existence of a restraining or protective order, the respondent finally clarified:

'I don't want to mislead this Court. There is no document that I found in State's Exhibit 969 which was the divorce file. There's no document in that file that is either a protection from abuse or a protective order. So, if I indicated that there was a document, I don't want to mislead you. I do know, speaking with the victim's family members, that the order existed. 'Um, and that that was discovered by Detective Volle as the lead detective in this case.'

A phone call

During the oral argument, the Supreme Court questioned the respondent about her argument to the jury that M.S. informed Chandler of his engagement to K.H. during the five-minute phone call. In response to a question by Justice Johnson, the respondent asserted, 'We know exactly what happened during that phone call because [M.S.] told his brother, [T.S.]. . . . I'm going to get married to [K.H.] and I'm afraid of what that news will do when I tell [Chandler] because I'm afraid of what she will do . . . .' Further, in response to a question by Justice Beier, the respondent confirmed her position that T.S. testified about the substance of the discussion between M.S. and Chandler during the five-minute phone call.

Upon further questioning by the Supreme Court, the respondent abandoned her argument that T.S.'s testimony established that Chandler learned of the engagement in the five-minute phone call. See also (At the disciplinary hearing, the respondent agreed that T.S.'s testimony did not establish the substance of the five-minute phone call.)

Other unsupported arguments related to an alleged escape to Nebraska, Internet searches and

During the murder trial, the respondent called Chandler's former employer, J.M. to testify. During his testimony, J.M. testified that Chandler's intelligence was 'probably above average.' The respondent did not present any additional evidence regarding Chandler's intelligence. Chandler, 307 Kan. at 688.

During closing argument, the respondent said, 'she's smart, she's got high intelligence and she thought she was smarter than the police department and she thought she was smarter than the jurors and it's not true, . . . And we have you. She's not smarter than the cops, [and] she's not smarter than you.'

She violated a court order to not point out people in the courtroom gallery.

A "heat of the moment" argument in closing

In the rebuttal portion of her closing argument, the respondent argued, '[n]ow the State, just like the defense, would also like to implore you not to convict an innocent person. That would be horrible. Don't convict an innocent person. Instead, convict her because she killed [M.S.], she killed [K.H.], and she robbed her own children of their father and his fiancé [sic]. . . .[']

During the respondent's sworn statement, the respondent disagreed with the Supreme Court and testified that her statement was factual—by killing M.S. and K.H., Chandler robbed her children of their father.

The court rejected findings of misconduct in an unrelated prosecution where the Disciplinary Administrator relied solely on the record of that case

What is more, both the panel's final hearing report and the Disciplinary Administrator curiously ignored the vast amount of hearing testimony respondent presented that provided much more color to the otherwise cold Ewing record, which leads us to find that respondent's conduct in that trial did not amount to misconduct that violates the KRPC.

But found violations in the response 

The panel's finding that respondent violated KRPC 8.1 by making a false statement during her disciplinary investigation is supported by clear and convincing evidence given the stark contrast between her sworn statement and her testimony before the hearing panel.

Sanction

The evidence in this case demonstrates a serious pattern of grossly unethical misconduct. "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." KRPC 3.8 cmt. 1 (2021 Kan. S. Ct. R. 395). Respondent failed in her obligation to act as a minister of justice in her prosecution of Dana Chandler. She ignored the order of a district court, repeatedly made arguments to the jury that lacked any evidentiary support, intentionally lied to this court in her briefs and in oral arguments, and made false statements during the disciplinary investigation.

After carefully considering the findings, conclusions, recommendations, and the ABA Standards for Imposing Lawyer Sanctions, we find that respondent's intolerable acts of deception warrant the severe sanction of disbarment.

48 Hours covered the crime.

Oral argument is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/05/the-kansas-supreme-court-x-the-prosecutor-of-a-still-pending-murder-case-the-trial-was-held-in-march-2012-the-respondent-w.html

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