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September 29, 2017 Digests

Posted By Administration, Tuesday, October 3, 2017
Updated: Tuesday, October 3, 2017

Kansas Supreme Court – Attorney Discipline

ORDER OF REINSTATEMENT
IN THE MATTER OF JOHN M. STUDTMANN
NO. 17,370 – SEPTEMBER 29, 2017

FACTS: Studtmann was disbarred in November 2003. He filed a petition for reinstatement in March 2016. A hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing and recommended that the petition be granted, with the condition that Studtmann continued to receive treatment.

HELD: The petition for reinstatement is granted, subject to conditions. Studtmann must continue to receive treatment from Dr. Parker until Dr. Parker believes that treatment is no longer necessary. Studtmann must also complete a bar review course that has been approved by the court and must pay all outstanding fees.

 

ORDER OF REINSTATEMENT
IN THE MATTER OF EDWARD F. WALSH, IV
NO. 99,410 – SEPTEMBER 29, 2017

FACTS: Walsh was indefinitely suspended from the practice of law in May 2008. He filed a petition for reinstatement in December 2016. After conducting a hearing, a hearing panel recommended that the petition be granted.

HELD: After considering the record, the court grants Walsh's petition for reinstatement. The reinstatement is conditioned on Walsh's compliance with the annual continuing legal education requirements and upon payment of all fees. 

Kansas Court of Appeals – Criminal

criminal procedure - Juries - prosecutors
state v. hirsh
barton district court:  affirmed in part, reversed in part, vacated in part, remanded
no. 116,356 – september 29, 2017

FACTS: Hirsh convicted of aggravated assault, criminal threat, and domestic battery.  During trial, jury asked if pillow over victim’s head could be considered a deadly weapon for aggravated assault, same as a gun pointed at victim’s pillowed head.  In response over Hirsh’s objection, district court told jury to refer to the instructions.    On appeal Hirsh claimed:  (1) district court’s response to jury’s question allowed jury to convict him of uncharged crime; (2) his two criminal threat convictions are multiplicitous; (3) prosecutor improperly commented that victim was telling the truth; (4) State violated Brady by not disclosing potential impeachment evidence that was disclosed when prosecutor cross examined Hirsh’s witness on last day of trial; (5) jury should have been recalled to investigate alternate juror’s claim that several jurors had not disclosed they were victims of domestic violence; (6) cumulative error denied him a fair trial; and (7) district court violated Apprendi by making “deadly weapon” finding to impose violent offender registration requirement.  

ISSUES: (1) Response to Jury Question, (2) Multiplicitous Convictions, (3) Comment on Victim Credibility, (4)  Brady Violation, (5) Recall - Jury Misconduct, (6) Cumulative Error, (7) Apprendi Violation - Sentencing

HELD:  On facts of this case, both a handgun and a pillow could be considered a deadly weapon to support the aggravated assault charge, but State charged Hirsch with committing the offense with a handgun.  The legally appropriate response would have been to inform jury that based on the charge, it must find the deadly weapon was a handgun rather than a pillow.  District court abused is discretion by failing to provide a meaningful response, and the error was not harmless in this case.  Aggravated assault conviction is reversed, sentence is vacated, and case is remanded for new trial on that charge.

Under the unit prosecution test, Hirsh’s criminal threat convictions are not multiplicitous.  He made one single communicated threat against his wife, and another single communicated threat against their children.

Prosecutor committed error by saying the victim was telling the truth, but under facts in case the error was harmless.

No Brady violation. Prosecutor did not suppress any evidence, and parties discovered the evidence at the same time while witness was on the stand.  Even if inadvertent suppression of this evidence, the error would have been harmless in this case. 

No abuse of district court’s discretion in denying Hirsh’s motion for recall. Counsel never asked any juror at issue whether they personally had experienced domestic violence or knew someone who had experienced it, and jurors were not required to volunteer this information.    

Aggravated assault conviction was reversed due to district court error. Remaining error committed by prosecutor during closing argument does not merit reversal of the remaining convictions. 

Apprendi claim not addressed because aggravated assault sentence, which included the violent offender registration, was vacated. 

STATUTES:  K.S.A. 2016 Supp. 21-5412(b)(1), -5415(a)(1); K.S.A. 22-3420(3), 60-261, -2105

Tags:  Attorney Discipline  order of reinstatement 

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