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End of 2008 Report
Posted by: Trey Pettlon
January 28, 2009
Topic: End of 2008 Report

We have a lot of people to be thankful to for another terrific year! Certainly we appreciate the referrals from former clients and other lawyers over the past year. We are thankful not only for the opportunities but for the confidence you have in us. We will always take care of our clients and do the very best for them that we can!

Paul Morrison Exonerated!

We are extremely pleased that the special prosecutors completed their investigation of our client, Paul Morrison, and determined that he did not commit any crimes. This is, of course, what Paul maintained from the inception of the news leak, but after a thorough and independent investigation he has been exonerated!

"We investigated numerous allegations into the conduct of Mr. Morrison, and while there may have been some evidence that would lead the casual observer to believe charges could be brought, there was insufficient evidence to support one or more of the elements of these alleged crimes as well as valid and sustainable defenses to many of these allegations."

- Special Prosecutors Timothey E. Keck and Robert E. Arnold III, Dec. 17, 2008

Here's video coverage of the story: http://www.nbcactionnews.com/mediacenter/local.aspx?videoid=430370@kshb.dayport.com&navCatId=4295.

In other news, Trey was selected to be the Edgerton Municipal Judge. Trey is honored to be the new Judge in Edgerton and looks forward to serving the city in this important position. Trey is following in the footsteps of the Honorable Kelly Ryan who was recently selected by Governor Sebelius to be the latest Johnson County District Court Judge and before him, the Honorable Charles Droege who has also since been selected as a Johnson County District Court Judge.

On a personal note from Trey: Congratulations to the Honorable John Anderson III, the senior Judge in Johnson County, Kansas. He has retired after 21 years on the bench! He was strict but fair and earned the admiration of attorneys for his tremendous knowledge of Kansas law, his brilliant insights and his quick wit. Attorneys appearing in Division 16 of the Johnson County District Court have learned a lot from Judge Anderson over the years. I certainly have. He will be missed by many.

Trey and Ryan have dedicated their law practice to helping good people through difficult times. We continue to focus on criminal defense but accept about five serious personal injury, medical malpractice and wrongful death cases at a time. We are extremely selective about what cases we accept because the cases we do accept demand a lot of attention...they are also cases that demand justice for a family or for someone who was injured or killed. We have represented people in these critical cases on numerous occasions all the way through settlement or trial to a jury. We know what it takes to win.

If you need help in an important criminal matter, we have a lot of experience we can bring to your defense. In recent weeks alone we have won several criminal trials including several DUI trials. We also won dismissals for a client charged with a serious felonies of felony child abuse and aggravated assault. These results won't dictate what happens in your case, of course, but they do illustrate some of the recent success we have had. If you have a defense, we can defend you in trial.

Trey's email is Trey@Pettlonlaw.com. Ryan's is Ryan@Pettlonlaw.com. (Please note that although our attorneys will respond to emails, our office will not enter into an attorney-client relationship by email. Please schedule an appointment to meet with us if you want to consider us for possible representation.)

It's been another busy year. We want to thank all of our clients for the opportunity to represent them through their difficult times and for the confidence they have in us. I also want to thank my fellow attorneys and friends for the many clients they have referred our way over the course of the year and for their continued confidence in us as well. Remember to slow down and enjoy what's important...family and friends.

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Paul Morrison - Press Release, December 17, 2008
Posted by: Trey Pettlon
December 23, 2008
Topic: Paul Morrison

Paul is relieved that this investigation is finally over and grateful that the special prosecutors, Tim Keck and Robert Arnold, lived up to their promise to conduct an independent investigation. Their investigation was deliberate and thorough and has confirmed what we have maintained from the beginning - Paul is not guilty of any criminal wrong-doing. Any allegations to the contrary were misleading and false.

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Election Of Judges in Johnson County
Posted by: Trey Pettlon
July 11, 2008
Topic: Election of Judges

Introducing Money and Popular Elections to the Courtroom

As an attorney, you can't give a judge money. That seems obvious enough. At worst, giving a judge money gifts can be viewed as an effort to bribe the court and at best, it has the appearance of impropriety. If you are a judge who takes gifts from attorneys, including money, you might end up in federal prison. Even lending a judge money may violate the rules of ethics for an attorney. For example, if an attorney lends money to a judge that he or she regularly appears before, it has the appearance of trying to sway the judge or buy the judge's favor and would violate the rules of ethics for the attorney and result in disciplinary action.

Even if the case ultimately is going to be decided by a jury, such as in a criminal case or a personal injury or wrongful death case, judges inevitably make decisions that are critical to the outcome of the case before it is over....ruling on evidence and ruling on motions that may limit one side's case or even dismiss it. In some cases, such as a divorce case, you wouldn't even have the protection of a the right to request a jury. Judges have broad discretion.

So when it comes to your case, for many the question comes down to whether you want to appear before an elected judge who must periodically run for election to keep his or her position , who must raise money from the attorneys and litigants who will appear before them...someone who must consider what decision would be popular or unpopular with the voting public...someone who may not necessarily be a respected member of the bar, but who is able to get popular support, or whether you would prefer to have your case decided by a judge who is not subject to political process.

If you don't think it matters that judges will periodically have to raise money for the political campaigns, consider this: let's assume you have a case before a particular judge. Would you would want to know if the attorney for the other party in your case had given the judge money? Would want to know if your attorney had ever given money to the judge? Would you worry about who gave more? What if you found out that the attorney for the other side had given considerable sums of money to the judge over the years? Or what if you found out that your attorney had spent considerable sums of money to actually try to keep the judge from becoming a judge? Do you think you would get a fair trial? Would you be worried about the possibility that the judge might be inclined to give favorable rulings to the attorney who has given him or her money? Should you have to worry about these things? Of course not. In a court of law, only the laws should guide the judge, without consideration for what is popular...or appealing to the voters. Unfortunately, if judges are elected, and if your case is important to you, you would have to be concerned.

This year Wisconsin Supreme Court Justice Louis B. Butler, Jr. was up for re-election and his challenger was a small-town trial judge with virtually no appellate court experience, Michael J. Gableman.¹ In fact, Judge Gableman's experience included arguing one zoning case before the state Supreme Court.²

The election included "a bitter $5 million campaign" in which both sides launched "caustic advertisements...many from independent groups."³ The worst came when Judge Gableman ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court [Justice Butler] had helped free a black rapist."⁴ The television ad juxtaposed "the images of his opponent, Justice Louis B. Butler, Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year old girl."⁵

"'Butler found a loophole,' the advertisement said. 'Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?'"⁶ As it turns out, Gableman's ad was accurate only in that Justice Butler had represented Mitchell in his criminal case 20 years earlier.⁷ In April 2008 Michael Gableman won 51% of the vote and will join the Supreme Court of Wisconsin in August.⁸

"There is reason to think, though, that the idea of popular control of the government...is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements."⁹

"'You don't get popular control out of this,' said Steven E. Schier, a professor of political science at Carleton College in Minnesota. 'When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.'"¹⁰

The election of judges will have undoubtedly a chilling effect on brave decisions by judges. No judge wants to be considered "soft" on crime for example. It's not uncommon for a criminal court judge to see a case where on the surface the defendant has committed a serious crime but once all the facts are carefully considered, prison is not the answer for this particular defendant. For the judge hearing that case, the just decision is to give the defendant a second chance...possibly with "shock time" in jail, or house arrest, community service, counseling, fines, probation and/or other sanctions.

To some extent, the judge might be taking a chance on a person that they will rehabilitate themselves. Criminal court judges take that chance every day. They can't lock up everyone and in a sense, the sentencing judge has taken that chance with every person that stands before them that they grant probation. The decision is to some extent a leap of faith...an act of bravery. Many times the decision or the reasons for the decision are complicated and they cannot be encapsulated in a "sound bite" or a headline. The much easier spin the next day is that the Judge is soft on crime. If the judge is free to make his decisions without fear that the decision will be unpopular with a voting electorate, he is more likely to make that brave decision.

One example might be the periodic criminal case that comes before the court involving a man charged with a very serious sex crime, and a prosecutor who has reviewed all the evidence but knows that it is likely that the Government will lose their case if they go to trial.  Instead of losing the conviction and any consequences for the person who committed the crime, the Government agrees to allow a plea to a lesser charge and to recommend a relatively minor punishment, possibly probation with counseling and other requirements like sex offender registration.  Plea negotiations play a vital role in making the system work.  For the judge that is worried about a headline the next day that reads, "Sex Offender Gets Probation", and the effect that such a headline will have on their upcoming election, there will be considerable pressure to ignore the plea negotiations of the party...to make the "easy" decision and put the defendant behind bars. As a result, plea negotiations won't mean anything in that court and the next 5 or 10 defendants charged with serious sex offenses won't take the plea, will have their trial and, if the prosecutor's worry comes to fruition, will likely avoid all consequences for the crime.

When discussing the election of judges at a conference on judicial independence at Fordham Law School, former Supreme Court Justice Sandra Day O'Conner said of the election of judges: "No other nation in the world does that because they realize you're not going to get fair and impartial judges that way."¹¹

"To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system," Hans A. Linde, a retired justice of the Oregon Supreme Court, at a 1988 symposium on judicial selection.¹² Under the rules of ethics, lawyers are not only not supposed to engage in 'improprieties', but they are supposed to avoid activities that have the 'appearance of impropriety'. The distinction between giving a judge money and donating money to his or her campaign probably is notso vast that the client who appears before the court is going to appreciate it if it turns out his lawyer did not give money and the other party's lawyer did.

"In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals."¹³

"A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality."¹⁴  "'A simple explanation for our results,' wrote the paper's authors - Stephen J. Choi, G. Mitu Gulati and Eric A. Posner - 'is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants - adequate rather than great opinions, in greater quantity.'"¹⁵

As an attorney, I see terrific attorneys and very bad attorneys every day...attorneys that I would seek out if I ever needed an attorney, and others that I would never have represent me. I marvel at the poor client who faces the challenge of finding a good attorney for an important case. One irony in the industry is that many of the best attorneys are not very good at marketing themselves. Either they come from the old school where they simply don't believe in attorney advertising or they are simply reluctant to ever say anything remotely braggadocios about themselves while others will not be so reluctant. On the other hand, some of the less capable attorneys are very good at marketing themselves. For these reasons and undoubtedly others, in some cases there is almost an inverse relationship between how big a lawyer's ad is in the yellow pages and how good they are. I worry about the client who finds their attorney in the yellow pages and am always a little surprised when a new client calls me and tells me they found my name in the phone book.¹⁶

When we elect judges, we undoubtedly lose some of the best candidates...the ones that are quite capable at everything concerning the law but don't market themselves or are not political.

To be candid, a system where judges are elected would be bad for my practice in part because of the expense of continually paying judicial candidates.  I would be one of the attorneys that donated substantial sums of money to candidates that I support.  I would be one of the attorneys that would not be disadvantaged in most courtrooms because of the money that I would spend supporting judges, but certainly there would be judges I didn't support that would win election and bear some grudge against me.  In those courts, if or when I lost cases, you would have a difficult time convincing my clients that my political contributions to the judge's political opponents did not affect the judge's decision in their case...whether that is true or not.  The election of judges would quickly become a high stakes popularity contest that would inevitably yield some disastrous results.

See http://www.justicenotforsale.org/newsletter.html for more information and updates on the election of judges in Johnson County, Kansas. 

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A Juvenile's Right to a Jury Trial
Posted by: Trey Pettlon
July 07, 2008
Topic: A Juvenile's Right to a Jury Trial in Kansas

Cheers to the Kansas Supreme Court!

"What happens in Juvenile Court does not always stay in Juvenile Court."

I have lectured about juvenile law dozens of times to whoever will listen and until recently, I have said that juveniles charged with "crimes" in Kansas have all the same rights that adults do, with two notable exceptions: they cannot represent themselves in court, and they do not have a right to a jury trial. In other words, if a juvenile pleads "not guilty", the State will have to convince a judge they are guilty beyond a reasonable doubt.

Until June of this year¹, a juvenile could ask for a jury trial, but the Judge could decide whether to grant the jury trial or not. K.S.A. 38-2357. The result of this was that over the years someone like me would periodically request a jury trial, but the Court would deny the request. The Court didn't have the time or the resources to conduct many jury trials.  As a result, until 2007 there had never been a single juvenile jury trial in the history of Johnson County.

For years I have thought it was a tremendous injustice that the juvenile laws in Kansas would not grant a juvenile² an absolute right to a jury trial. I have represented hundreds of juveniles who were charged with serious offenses. I can assure you that when a child of yours is charged with a serious felony, it doesn't feel like the system is set up for rehabilitation. For the juvenile, and many times the parents, the process seems punitive.

I understand the theory for allowing the juvenile courts discretion to deny a request for a jury trial. Traditionally the purpose of the juvenile laws was to rehabilitate, not to punish, and the consequences of being 'convicted' were not believed to be long-term. That is, juveniles had numerous statutory protections under the juvenile code that would ensure that the juvenile conviction would not affect the juveniles in the future.

There were laws that draped juvenile court with confidentiality so that juveniles who were charged would not be embarrassed by the allegations, something that was thought to be especially important because of the damage that the allegations can do to a person during their formative years. For example, people who were not related to the juvenile or an attorney in the proceeding or court staff or a witness there to testify could not be in the courtroom during the hearing if the child was under 16. K.S.A. 1982 Supp. 38-1652. Even the terminology used in juvenile cases is different than the terminology used in adult criminal court. Juveniles charged are called 'respondents'instead of 'defendants.' Juvenile convictions are called "adjudications". Juvenile crimes are called juvenile "offenses".³ The idea was that a juvenile who did something stupid would not have to answer 'yes' on a job application or a school application several years later when asked if they ever committed a crime.⁴

But these protections have never, in my view, justified denying a juvenile a right to a jury trial. The impact on a juvenile of an adjudication for rape or indecent liberties, just as an example, has always been important enough to justify a jury trial.

For those who say the juvenile code is still primarily concerned with what is best for the juveniles, I would say that is not true.⁵ I think most people who have a child in juvenile court charged with a serious crime, whether the charge is true or not, will not appreciate the differences between the juvenile code and the adult criminal code. Juvenile offenses sometimes result in loss of liberty for months or years. In many cases these offenses can never be expunged and are on the juveniles record forever. They have to be revealed on job applications or school applications or licensing applications. They may require registration which in turn requires placement of an sex offender website with adult offenders and even having the word "offender" prominently marked across the juvenile's drivers license like adult offenders.⁶ Juveniles must submit DNA like adult offenders.

The degree of confidentiality associated with juvenile cases has been reduced substantially. Under the KJJC, all juvenile hearings are open to the public unless the Judge specifically orders otherwise. K.S.A. 2006 Supp. 38-2353. Cases involving juveniles 16 years and older are even posted on the courthouse website that broadcast the charges and the history of the case. Up until 2006, the official court file and law enforcement records regarding juveniles under the age of 16 were protected from disclosure to the public. K.S.A. 1982 Supp. 38-1607 and 38-1608. Now those same records are accessible unless the child is under 14.

In 2001 Kansas adopted sentencing guidelines for adults charged with felonies to determine the sentence that they will receive if they are convicted. K.S.A. 21-4701 et seq. The Kansas legislature decided that a defendant's criminal history should include their juvenile record in many cases.

The jury trial is an important protection against false allegations and some of the most serious allegations, allegations regarding sex crimes, are frequently false compared to other crimes. I would point to the cases of two juveniles who were charged with sex crimes to make the point about the importance of jury trials. In one case, there is no question in my mind no jury would have convicted my client, but the judge was a judge who thought that "what happens in juvenile court, stays in juvenile court, so let's just convict him and get him some services."⁷ You might think, like the judge did, why have a trial then if "what happens in juvenile court stays in juvenile court?" Aren't there protections in the juvenile system to protect the young offender. First off, what happened in juvenile court never stayed in juvenile court. But the real answer kind of got lost in that particular court...sometimes the accused is innocent. My client was likely innocent. I wouldn't recommend that a client plead guilty to something he didn't do...ever, and the consequences for being convicted of something can be devastating when you are innocent.⁸

In the second case, a judge who had been on the juvenile bench for twenty years in an unprecedented move granted my request for a jury trial on behalf of a young man charged with a sex crime. At the time, there had never been a juvenile jury trial in Johnson County and mine was to be the first. The State's evidence was extremely flimsy. It was the kind of case that a prosecutor might cavalierly present to a judge in a two hour trial to the court, but would not want to present in two days to a panel of twelve jurors. Before the jury trial began, the prosecutor reconsidered the strength of their case, and asked me what, if anything, my client would plead guilty to. I said, "he admitted to using marijuana." We agreed and the prosecutor amended the charge from rape to misdemeanor marijuana. This would have never happened if I hadn't been granted a jury trial. Is it possible the Judge would have made the right decision at the close of the evidence and dismissed the case without the aid of a jury. Of course. But that is not the point. Whether you believe in harsher punishment for juvenile offenders or not, the point is that juveniles ought to have the same right as adults charged with the same offense ...the right to make the State prove their case beyond a reasonable doubt to a jury.

The Kansas Supreme Court made the right decision. Until last month, a juvenile would not have the right to a jury even though the consequences of a 'conviction' might be as severe or worse than they would be for an adult charged with the same offense. Undoubtedly it will be difficult for courts to adjust. Jury trials take more resources. More time. A simple trial will take a full day instead of an hour or less. Not all court rooms are equipped with a jury box or a jury room. But if a young person can't get a jury trial when they are faced with losing their liberty and their reputation, and when they face other life-long consequences like having a criminal record, not being eligible for certain careers, losing jobs or not being admitted to colleges, the cost is acceptable.

_______________________________________

1 In the Matter of L.M., No. 96,197

2 In Kansas a person is a juvenile for purposes of criminal law if their offense was committed when they were under eighteen. In Missouri they are a juvenile if the offense occurred when they were under 17.

3 These terms were changed so that juveniles would not have to admit on a job application, for example, that they had ever been charged with a 'crime'. This terminology has not provided any real protection for years though. Job, school and other applications have become more and more sophisticated and routinely ask whether the applicant has ever been charged with a juvenile offense.

4 Juveniles in Kansas can be charged for offenses that occur when they are as young as ten years old.

5 Certainly Judges and Court staff make every effort to consider what is best for every child that appears in their court, but many of the consequences, such as expunge ability of the offense, are not within the judge's discretion.

6 Teenagers can be cruel and this can completely change a teenager's high school experience and as a result cause a great deal of psychological damage during these important growing years.

7 I was told by attorneys who practiced regularly in that jurisdiction that they never asked for trials and it was widely believed that the consequences of the adjudications were nominal. Whether the child did the crime or not, the idea was to 'just get the kid some services' (probation, counseling...everyone can benefit from that.) The impact of this historical way of handling juvenile cases, now that the legislature has made juvenile adjudications part of an adult's criminal history for determining sentences for adults is that there are a lot of people that are adults now that have adjudications on their criminal histories for offenses that should have been dismissed at the very least as a part of plea negotiations if not trial but were not because they pled guilty because they were advised it would never matter. In other words, countless adults are now faced with significantly inflated "criminal histories" because of the misconception that their juvenile offenses would never be used against them or otherwise harm them once they completed their probation. Then the laws changed with the adoption of the Revised Kansas Juvenile Justice Code, K.S.A. 2006 Supp. 38-2301 et seq. and the adult sentencing guidelines. K.S.A. 21-4704 et seq.

8 I don't know if my client ever recovered from that decision which is part of the reason that I say "what happens in juvenile court doesn't stay in juvenile court." The results impact the juvenile for years to come in some cases...in a good way and sometimes in a bad way. He got into drugs after that, and a few years later he was on the front page of the Kansas City Star. He was a key witness in federal court in a big drug conspiracy case. He was murdered while the case was pending.

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End of 2007 - State of the Office
Posted by: Trey Pettlon
January 16, 2008
Topic: End of 2007 Report

We had a terrific year! We won several criminal cases, getting DUI's, felony and misdemeanor charges against our clients dismissed, and had one of the largest jury verdicts in Kansas City this year. We met a lot of terrific people going through tough times in their lives and helped them rebuild. For us, this is the reason we practice law. For those moments when you can get justice for your client, those moments when you can help a person when they are at their lowest point...to help them get back on their feet. Although we primarily work in the Kansas City area, this year our work has taken us to Augusta, Maine, Boston, Massachusetts, New York, New York, Oakland, California, Fort Worth, Texas and St. Louis, Missouri.

Trey finished a wrongful death jury trial in July. It was a case that was very difficult against a premier defense team. On July 20, 2007 a Jackson County Jury came back with a verdict in favor of Trey's client for almost a million dollars. In the days preceding the trial, the Defendant had offered $65,000 to settle the case. A number of attorneys said it was a case that could not be won. It was a close case, but with a lot of hard work and preparation, Trey got a verdict his client was very happy about.

Ryan tried a felony criminal jury trial in August, and the jury found his client "Not Guilty by Reason of Mental Defect"...one of the few times that defense has won in the last 20 years in Johnson County.

In addition to these jury trials, Trey and Ryan have had several victories (cases dismissed after a motion, a trial decided by a judge or a preliminary hearing) in recent months including cases where clients were charged with DUI's, felony DUI, Battery, Aggravated Battery and Possession of Cocaine.

Trey is currently serving on the Advisory Board for Kansas City's "Guns and Hoses". It is a charity boxing event that matches police officers against firefighters and raises money for families of police officers and firefighters who die in the line of duty. This is Trey's third year on the Board. The boxers train with Ringside. The event was at Memorial Auditorium in Kansas City, Kansas in November and was an unmitigated success once again. From an amazing rendition of the National Anthem sung by a Detective with the Kansas City, Kansas Police Department that brought the house down to Paul Morrison, the number one law enforcement officer in Kansas, winning his fight, it was an unbelievable night! Check out the website: http://www.kcgunsandhoses.com/Home.html.

On a personal note, Ryan just had his second baby girl. Elena Ginie was born October 22, 2007. She should be eligible to take the bar exam in 2032. Until then, Ryan and Trey have you covered.

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