Law students win 13 appeals cases for defendants who didn't receive fair trials

LAWRENCE – Everyone has the right to a fair trial, but when the legal system slips up, not all is lost.

Students in the Project for Innocence and Post-Conviction Remedies at the University of Kansas School of Law work tirelessly to represent state and federal prisoners, and in the last 18 months, they’ve won 13 reversals of conviction for their clients. Since the start of 2009, the Project for Innocence has had a hand in 23 reversals – in some cases, giving citizens a chance to get out of prison and get on with their lives.

“It is really difficult for me to identify the biggest factor that has contributed to this success because there are so many variables involved,” said Rick Kittel, supervising staff attorney. “My hope is that through their work in the Project, the students will gain experience in the practical application of the law and have a greater realization of the importance of writing well and issue-spotting. The students have shown an ability to do these things, and that, as much as anything, has contributed to their success.”

The overturned convictions have involved cases ranging from the possession of methamphetamine to identity fraud. The most recent success came with third-year student Jon Ruhlen’s case, State v. Dan McConnell, on Nov. 23 McConnell had been convicted of domestic battery and battery, but the Kansas Court of Appeals reversed those convictions based on insufficient evidence and jury instruction errors.

A direct appeal is the first line of appeal after someone has been convicted at trial. Students review the record of the case at the trial court level, pinpoint issues showing that the defendant did not get a fair trial and then write a brief raising these issues that is filed in the Court of Appeals. If the appeal fails there, students can petition for review by the Kansas Supreme Court. If that also fails, they can still file habeas corpus lawsuits, which are additional efforts to obtain relief from a criminal conviction. Kittel supervises all students in writing direct appeals, and also represents the clients in court.

In some cases, careful scrutiny of the case record is all it takes to find an error that can reverse the sentence. Third-year student Lisa Bolliger is now student director of the Project for Innocence after working as a student intern last year. She received a case from the Kansas Appellate Defender’s Office regarding a DUI conviction. After reviewing the court procedures, she found that the judge had not specifically asked her client if he was waiving his right to a jury trial before proceeding to bench trial – a violation of the Sixth Amendment. The client’s conviction was overturned.

“In direct appeals, the issues you can raise are exclusively from the record of the trial court below,” she said. “You really have to pay close attention to detail to ensure that everything was done according to the rules and laws of the state, and that the defendant’s rights were maintained throughout the process.”

The Project for Innocence receives more than 200 letters each year from inmates seeking assistance. Although students receive course credit for their work, they don’t receive monetary compensation for the hours they pour into a case. Achieving justice for the accused is often reward enough.

“I was really glad to see that the issue won,” Bolliger said. “I think it sends an important message that the accused gets all the protection he is allowed under the Constitution. It also goes to show that the underdog can prevail; most direct appeals are affirmed.”

The KU School of Law ranks 19th in the nation for providing hands-on learning opportunities through clinical positions for its students, according to National Jurist magazine. The Project for Innocence is one of 13 clinics and externships at the law school, giving students practical experience under the supervision of law school faculty. As an “in-house” program, Project students represent clients from offices at the law school, and they are supervised by full-time faculty and staff attorneys.

Direct appeals won by KU law students since April 2010:

• State v. Antwon Dean, 42 Kan. App. 2d 32 (April 1, 2010), defendant lost appeal in the Kansas Court of Appeals, but his petition for review was granted and his convictions of endangering a child were reversed by summary order of the Kansas Supreme Court because evidence produced at trial was insufficient to prove all alternative means of committing the crime alleged in the complaint. Student: Sean Ostrow.

• State v. David Richardson, April 15, 2010 (unpublished), possession of methamphetamine conviction reversed due to violation of the Fourth Amendment. Student: Lorraine Hilleary

• State v. Clifford Baughman, 44 Kan. App. 2d 878 (May 28, 2010), aggravated indecent liberties with a child conviction reversed in published opinion, because jury was given an erroneous deadlocked jury instruction. Student: Kendra Oakes

• State v. Victor Dionicio, June 18, 2010 (unpublished), identity fraud conviction reversed due to improper waiver of jury trial. Student: Sibyl Wong

• State v. Douglas Koepcke, Aug. 6, 2010 (unpublished), DUI conviction reversed because jury was given an erroneous deadlocked jury instruction. Student: Alex Herman

• State v. Kenneth D. Brown, 44 Kan. App. 2d 344 (Aug. 6, 2010), aggravated burglary conviction reversed based on improper admission of evidence and an erroneous jury instruction. Student: Drew Cummings

• State v. Joseph Hogan, 45 Kan. App. 2d 715 (April 15, 2011), possession of methamphetamine conviction reversed based on district court’s incorrect ruling denying the defendant’s motion to suppress evidence. Student: Josh Berry

• State v. Lee Roy Taylor, June 3, 2011 (unpublished), aggravated battery conviction reversed and new trial granted because court incorrectly found as a matter of law that great bodily harm had occurred and failed to instruct on lesser included offenses, and because trial court erroneously admitted opinion testimony. Student: KC Atchinson

• State v. Bobbie Jo Jackson, 46 Kan. App. 2d 199 (July 29, 2011), defendant’s convictions of possession of methamphetamine and drug paraphernalia reversed based on district court’s incorrect ruling denying defendant’s motion to suppress evidence. Student: Carolyn McKune

• State v. Justin Hosler, Sept. 9, 2011 (unpublished), DUI conviction reversed due to improper waiver of jury trial. Student: Lisa Chauvin Bolliger

• State v. Robert Smith, Sept. 30, 2011 (unpublished), possession of methamphetamine conviction with intent to sell and drug tax stamp convictions reversed based on violation of defendant’s Fourth Amendment rights. Student: Jeff Spahr

• State v. Marquez McCray, Nov. 4, 2011 (unpublished), burglary and felony theft convictions reversed based on trial court’s erroneous procedures and response to questions asked by jury during deliberation. Student: Sarah Wang

• State v. Dan McConnell, Nov. 23, 2011 (unpublished), domestic battery and battery convictions reversed based on insufficiency of the evidence and jury instruction errors. Student: Jonathan Ruhlen.