Attorney General Kris Kobach seeks to profoundly limit filing of ineffective counsel motions

by Tim Carpenter, Kansas Reflector
February 6, 2025

TOPEKA — Kansas Attorney General Kris Kobach is the driving force behind a Kansas Senate bill placing stringent limits on the ability of people convicted of a crime to file multiple petitions claiming ineffective legal representation.

If the bill introduced by the Republican attorney general and considered Wednesday by a GOP-led Senate committee had been part of state law in 2017, Lamonte McIntrye would have remained incarcerated for a double homicide he didn’t commit. It wasn’t until filing a third petition on McIntrye’s behalf that evidence was presented proving he was innocent in the Wyandotte County murders. After serving 23 years in prison, he was exonerated and released.

“Under the proposed changes in Senate Bill 60, the evidence that established the truth about Lamonte’s innocence could not have been presented,” said Jean Phillips, who testified against the bill on behalf of the Kansas Association of Criminal Defense Lawyers. “SB 60 jeopardizes the continued work to correct injustices and free the wrongfully incarcerated.”

She said 20 people, including McIntrye, had been exonerated in Kansas since 2004.

Kris Ailslieger, deputy solicitor general in the attorney general’s office, told the Senate Judiciary Committee that Kobach was in favor of the bill because it would curb the filing of “repetitive, meritless post-conviction motions.”

Ailslieger said implementation of reform would relieve “unnecessary strain on the courts and prosecutors” who were compelled to respond to a backlog of “frivolous filings.”

The Kobach bill

Under the bill, Kansas courts “shall not consider” a second or subsequent motion claiming ineffective counsel. The legislation would establish two exceptions. First, the bill says a successive motion could be evaluated by the court if the claim relied on a new rule of constitutional law that was applied retroactively and relevant to the prisoner’s case. The other would allow a court review if the factual basis of the claim couldn’t have been discovered at trial and was sufficient to establish by clear and convincing evidence no reasonable person would have found the defendant guilty.

The measure also would prohibit a second or subsequent motion regarding flawed or negligent legal counsel from being considered while an appeal was pending on a previously filed motion.

Existing Kansas statute says judges weren’t required to entertain more than one similar motion on behalf of a prisoner, but judges possessed independent authority to examine an individual’s multiple claims for ineffective counsel.

Ailslieger said a 2004 decision by the Kansas Supreme Court contributed to the problem by permitting the cycle of filings. The outcome of Brown v. State improperly created a right to effective assistance in post-conviction proceedings despite lack of an explicit state statute forming that right or a state constitutional foundation for that right, he said.

The bill introduced last month by the attorney general’s office would restore the pre-Brown approach to motions on ineffective assistance of counsel, Ailslieger said. Adoption of the change would slow the state’s appellate perpetual-motion machine and more efficiently bring finality to criminal cases, he said.

“The purpose of this bill is to stop or stem kind of the tidal wave,” Ailslieger said. “These motions bog down the court system. They take up judicial resources. They take up prosecutorial resources. They take up defense resources. They almost never have any kind of merit, but we still have to have hearings on them. We still have to write answers to them.”

The Senate Judiciary Committee took no action on the bill. The concept of the bill was endorsed by a prosecutor working for Sedgwick County District Attorney Marc Bennett, who suggested an amendment outlining an alternative procedure for the courts to work on one motion per case at a time.

Aaron Breitenbach, deputy district attorney in Sedgwick County, also raised a concern about reference in Kobach’s bill to “expedited” hearings in death-penalty appeals. He said that provision could cause “grievous harm” to the ability of prosecutors to deal with complex appeals by defendants in capital cases.

“Given what is at stake in such cases, I question whether a judge’s ruling should be explicitly hurried,” Breitenbach said.

Compounding wrongs

Tricia Rojo Bushnell, executive director of the Midwest Innocence Project, said the organization worked with legal partners to represent Kansans Floyd Bledsoe, Richard Jones, Olin “Pete” Coones, Cedric Warren and McIntyre, who served a combined 81 years behind bars for crimes they didn’t commit. She said SB 60 would result in incarceration of innocent people with cases comparable to the five men.

Bushnell said Kobach’s bill would harm innocent people who received ineffective assistance of counsel even when they could prove their innocence.

She said the legislation would block court consideration of secondary petitions if the underlying facts could have been discovered earlier through due diligence. That meant a defendant could be precluded from proving innocence with evidence not presented at trial because a defense attorney had been ineffective, she said.

Most federal appellate circuit courts, including the 10th Circuit covering Kansas, defined new evidence as information not presented at trial, she said. Only the Eighth Circuit with jurisdiction in Missouri and Nebraska defined new evidence in terms of facts not previously brought to light with due diligence, she said.

Bushnell illustrated the distinction by outlining the case of Ricky Kidd, who was convicted of a double homicide despite a compelling alibi not presented at trial. Kidd was in a sheriff’s department office applying for a permit at the time of the crime, she said. In 2019, he was exonerated in the case.

The standard proposed by Kobach for Kansas would have interfered with Kidd’s justifiable appeal, Bushnell said.

“Unfortunately, Ricky’s counsel failed to adequately track down and present this (alibi) information at trial. And, his post-conviction counsel also similarly failed to present this and other important evidence,” she said. “When he offered the previously unpresented evidence … the Eighth Circuit foreclosed all relief because it — like this bill proposes — interprets new evidence to mean evidence that could not have been identified through the exercise of due diligence.”

Eight years later, Bushnell said, Kidd was exonerated after the case was returned to state courts. Under the Kobach bill, she said, that option wouldn’t be available to defendants in Kansas.

“SB 60 eviscerates the importance of a fair and equitable process in reviewing a defendant’s liberty interest when it eliminates the ability of a defendant to raise ineffective assistance of post-conviction counsel,” she said.

Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com.