• Aug 01, 2014
  • Dodge City Daily Globe
  • -
  • by Christopher Guinn

A motion to file polygraph evidence in defense of Brock Cunningham and a series of anonymous tips caused a temporary stir in the proceedings.

The attorney representing Brock Cunningham against the state’s accusation of the murder and abuse of 3-year-old Natalie Pickle filed a motion to admit two polygraph, or “lie detector,” exams in defense of his client on Friday, July 25.

Daniel Monnat filed the extensive motion supporting the admission of two polygraph exams alongside expert testimony supporting the validity of the tests and an argument for the admissibility of the tests under a recent change in the Kansas evidentiary standards.

Polygraph exams measure small physiological changes that may occur when an interviewee is lying, including blood pressure spikes and palm sweating. The machines are widely used by local, state and federal law enforcement agencies during employment interviews alongside other interviewing techniques.

An anonymous tipster called the Globe and other media outlets, including KWCH, Monday, saying that the motion had been filed and the results of the tests were beneficial to Cunningham’s case.

When a reporter sought the contents of the court file containing the motion to admit polygraph evidence, Monday, Ford County Attorney Natalie Randall filed for an emergency sealing order. That order was approved later that day by Judge Van Hampton and both parties were called for a hearing.

Randall’s argument was that the release of information regarding the polygraph test results was a form of extrajudicial litigation, that is, trial by media, without the state knowing the method or the results of the examination. That public disclosure could make it difficult to seat an impartial jury in the trial scheduled for January.

The court found that a limited order sealing the motion to admit evidence and a second preventing the attorneys from discussing the motion did not unduly damage Cunningham’s ability to receive fair legal counsel. The court issued the order due to the potential risk of the information contaminating the jury pool.

Monnat objected, arguing that the order violated his client’s First, Sixth and Fourteenth Amendment rights, that is, free speech, defendant’s rights and equal protection under the law. He also claimed violations against his clients Kansas Bill of Rights Section 10 and Section 11 rights, or fair trial and the freedom of speech guarantees.

Judge Leigh Hood heard the arguments on July 30 and dissolved the sealing orders. He also told the two attorneys that they know their profession’s ethical obligations and if either is concerned about the actions of the other, they should contact the Kansas Bar Association.

Randall requested that if the polygraph exams are admitted as evidence, that the video recordings of the entire sessions be made available to the prosecution.

“The defendant filed a motion on Friday to admit polygraph information. In the past, the state has requested those be turned over to us in full. The polygraph had not been turned over to the state, which filed a motion to compel them to turn them over,” Randall said Thursday.

“The state is very interested in seeing the entirety of the examination,” Randall added.

The decision to admit the polygraph exams will be made during the pre-trial hearing on October 1 and October 2.

Before July 1, Kansas’s position on the admissibility of polygraph examinations was limited by the “Frye Standard” set in the 1923 federal trial Frye v. United States. That standard only allowed scientific expert testimony to be admitted only if the technique was generally accepted in the relevant scientific community.

Frye was overturned in 1993 with the Daubert v. Merrell Dow Pharmaceutical decision. The federal court ruled the limitations set by the Frye Standard could not coexist with the Federal Rules of Evidence.

Now, the judge may act as the gatekeeper based on several criteria set in Daubert and related decisions and may allow polygraph exams as evidence.

Hood also informed the attorneys that they should begin considering a questionnaire to send to potential jurors prior to gathering a pool. Earlier this month, Randall requested a bump in the county budget to account for potential difficulty in seating an impartial jury in January.

Dodge City Daily Globe – by Christopher Guinn

  • Jul 30, 2014
  • KSN TV

WICHITA, Kansas – Seth M. Jackson, 29, the foster father accused of leaving a 10-month-old child to die inside a hot car was charged on Wednesday in Sedgwick County Court with first-degree murder. An alternative count of second-degree murder charge has also been filed.

Seth Jackson’s mother shared a photo of the baby that died in a hot car with KSN on Friday.

The judge also stated that Jackson must not have any contact with anyone on the witness list, including his partner and his mother.

“This entire list, I can’t talk to anybody on that list, including my husband and my mother?” Jackson asked the judge.

The judge responded, “At this point that is correct.”

Bail for Jackson has been set at $250,000 with numerous conditions.

The next scheduled hearing for Jackson will be on August 13th at 9 a.m.

“After reviewing the case we determined these were appropriate charges based on the evidence,” Dan Dillon, a spokesman for the Sedgwick County district attorney, said without further comment.

Kansas law calls for a first-degree murder charge when someone is killed intentionally and with premeditation or “in the commission of…any inherently dangerous felony.” In Jackson’s case, that could be the endangerment charge on which he was first held.

But Jackson’s defense lawyer, John Stang told NBC News that the facts of the case don’t support a murder rap, which carries a life sentence with a minimum of 20 years behind bars.

“Overcharged, in my opinion,” Stang said. “Rather high for a mistake. I’m not trying to say it’s not a horrible loss. The death of a child is an awful thing. But this person is looking at 15 more years than someone who was driving drunk and ran into a car and killed someone.”

Stang also went on to say that he has see no evidence that Jackson and his partner neglected or abused their two adopted children and four foster children.

Last week, Jackson was booked on suspicion of aggravated endangerment.

KSN asked legal expert Dan Monnat to comment on why he is being charged with first-degree murder instead of a lesser charge of aggravated child endangerment, which Jackson was arrested under suspicion of.

“What they’re saying is that he recklessly caused the child to be placed in a situation where the child was endangered and regrettably that resulted in the death. Elevating what otherwise would be ‘aggravated child endangerment’ to first-degree murder,” said Monnat.

The baby’s biological grandmother told NBC news that she was surprised by the murder charge.

“It blows my mind. He loved those kids and they loved him so much. I’m mad, but at the same time, accidents do happen. I’m sure he is beat down inside. It’s hard to say what the charge should be,” said grandmother Cindy Poe.

“Even if it’s taken from him legally, his heart will never be the same. It will break every time he holds a baby. It’s going to break every time he walks in there and sees the crib,” said Dottie, the mother of Jackson.

Police say he had “somehow forgotten” leaving the girl in the back seat after picking her up from the baby sitter late Thursday afternoon. He went inside the house with a 5-year-old child but left the baby strapped in the car seat outside. The girl had been in the car for about two hours. Police say Jackson had apparently forgotten about her until something on TV jogged his memory.

Temperatures in Wichita at the time were around 90 degrees.

“He is devastated. He wants to die. Nothing like that should have ever happened to a child, and he knows it, and he wants to be the one. He should be the one and not her,” said Dottie, the mother of Jackson in an interview Friday with KSN.

In response to Wednesday’s charges filed following the death of the 10-month-old baby, Kansas Department for Children and Families (DCF) Secretary Phyllis Gilmore offers the following statement:

“We remain deeply saddened that this child suffered such a horrific death. We support the charges filed in this case, and we will aid in any way possible the prosecution of the defendant.”

DCF continues its investigation into the tragedy.

To read the Kansas Department of Children and Families’ statement in its entirety, click here.

KSN TV

  • Jul 25, 2014
  • KSN TV

WICHITA, Kansas – The Kansas Supreme Court on Friday overturned the death sentences of the Carr brothers who were convicted of capital murder in a case involving robbery, rape and the fatal shooting of four people whose bodies were left in a snow-covered Wichita soccer field.

The court also struck down three of the four capital murder convictions each against Jonathan and Reginald Carr. It upheld one capital murder conviction for each of them.

“Superficially, it could be said that an error of the court has resulted in the reversal of the death sentences because the Carr brothers were tried together in the death penalty phase,” said KSN legal analyst Dan Monnat.

“The result of the decision by the Supreme Court creates one certainty: Jonathan and Reginald Carr will not be released from prison. The conviction for capital murder for each defendant carries with it a life sentence,” said District Attorney Marc Bennett.

In overturning most of their capital convictions, the majority said the instructions to jurors had been flawed because the judge tied those capital murder charges to the rape of the surviving victim, not the deceased ones.

The brothers’ cases will return to Sedgwick County District Court for further proceedings.

“This office is committed to upholding the law and ensuring the safety of the citizens of Sedgwick County,” Bennett said. “The jury did not take lightly its recommendation that a death sentence be imposed, nor will this office.”

Prosecutors said the attack that culminated in the December 2000 deaths of 29-year-old Aaron Sander, 27-year-old Brad Heyka, 26-year-old Jason Befort, and Heather Muller, began when the brothers broke into a Wichita home.

The armed intruders forced the five people there to have sex with each other and later to withdraw money from automated teller machines. Two women were raped repeatedly before all five were taken to the soccer field and shot while they were kneeling. Four of them died. One of the women survived a gunshot wound to the head and she ran naked through the snow to seek help.

She became a key witness at the brothers’ trial where they were convicted of capital murder and sentenced to death.

Larry Heyka, the father of murder victim Brad Heyka, expressed disappointment and said he was struggling to make sense of the court’s rulings, which totaled nearly 480 pages.

“It seems like it takes a lot of time to get through these things, but we will do whatever it takes,” said Heyka, who is from Council Grove. “Hopefully going forward, we will all understand what these rulings really mean.”

On Friday, a 6-1 majority in the Kansas Supreme Court overturned the Carr brothers’ death sentences because the presiding judge did not hold separate sentencing proceedings for each man. The court narrowly rejected — 4-3 — the brothers’ claim that their convictions should also be overturned because they also didn’t have separate trials to determine their guilt.

In overturning most of their capital convictions, the majority said the instructions to jurors had been flawed because the judge tied those capital murder charges to the rape of the surviving victim, not the deceased ones.

The brothers’ cases will return to Sedgwick County District Court for further proceedings.

The attorneys who represented each brother did not return telephone messages seeking comment.

Kansas Attorney General Derek Schmidt and Sedgwick County District Attorney Marc Bennett issued a joint statement saying they were reviewing the decision, and that some legal issues were decided in the state’s favor.

“We are committed to seeking justice in this case for the victims, their families and the community,” they said in the statement.

Jonathan Carr, now 34, and Reginald Carr, 36, were in their early 20s when the crimes occurred. Together, they were convicted of 93 crimes, including rape, aggravated kidnapping and aggravated robbery and sentenced to death.

The Supreme Court upheld a total of 57 convictions against them. Most of the overturned convictions involved the allegations of forcing their victims to engage in sex acts.

Five other convicted murderers remain on death row in Kansas. The state Supreme Court last week overturned the death sentence of Sidney Gleason in the killings of a Great Bend couple in 2004. Last year it ordered a new trial for Scott Cheever in the shooting of the Greenwood County sheriff in 2005, though the U.S. Supreme Court later ordered the Kansas court to reconsider.

Kansas’ last legal executions were in 1965, by hanging. The current capital punishment law was enacted in 1994, but the state’s highest court has yet to approve any death sentences.

See video at KSN

KSN TV

  • Jul 22, 2014
  • KSNW TV
  • -
  • by Brittany Glas

WINFIELD, Kan. – Some residents of Winfield are outraged that a convicted sex offender was allowed to go home before being sentenced to life in prison.

Loarn Earl Fitzgerald II was released on a low bond amount after being convicted of child sex crimes for the third time.

A judge set a bond of $25,000 and Fitzgerald was allowed to go home for two weeks before sentencing to a neighborhood where many children live.

KSN spoke to Judge James Pringle about residents’ concerns over the bond amount.  He said it’s probably not that bad to let Fitzgerald spend two weeks with his family before he never sees them again.

It was a decision that still does not sit well with residents who were forced to live near the convicted sex offender over the course of those two weeks.

“I couldn’t believe it!” said Deanean Holden, one of Fitzgerald’s neighbors. “I mean that’s you know, you have kids around. You’d think at least he would have to wait for sentencing in jail, not be out and be accessible.”

The bond made waves across Cowley County, especially for his Winfield neighbors when they realized he would be out of jail and back home.

“He was down the street, sitting on the porch watching kids,” said Holden.

“I watch these little kids all the time, just like they were my own. So yeah, I’d be worried about it too!”

Cowley County residents reached out to KSN weeks ago, concerned District Court Judge Pringle was setting low bond amounts for sex offenders.

We learned that in setting a bond with the constitution and Kansas law in mind, a judge must consider two issues: whether the person is a danger to the community or a flight risk.

In the case of the three-time convicted sex offender, the bond was set at only $25,000, meaning he paid $2,500 to be home for two weeks before being sentenced to prison.

County Attorney Christopher Smith publicly disagreed with the bond.

He stated, as a prosecutor, he considered Fitzgerald both a danger to the community and a flight risk.

“I was against releasing him on bond under any condition,” Smith said.

Neighbors say Fitzgerald’s criminal history should have been evidence enough against him.

“He’s already been convicted three times,” said Holden. “It just didn’t make any sense.”

But it wasn’t up to his neighbors. It’s up to the man behind the bench: Judge Pringle.

“Entrusted to the wisdom of the individuals we elect and put in place as judges,” said Dan Monnat, KSN Legal Analyst.

“Fine, they have discretion, but there should still be some, you know, limits,” said Holden. “Our laws need to be stricter. They need to be more safe for our kids.”

State Senator Michael O’Donnell agrees.

“The legislature does need to step in and just have a minimum threshold,” said O’Donnell. “If you are accused or charged with a certain crime, and some of the most horrific crimes are child sex crimes, that we are going to hold you accountable.”

There are at least a dozen children who live in the immediate vicinity of the home Fitzgerald was living in prior to his sentencing.

Because this was Fitzgerald’s third offense, Jessica’s Law applied in this case.

Judge Pringle sentenced Fitzgerald Thursday to life in prison without the possibility of parole.

Neighbors say it was a relief.

KSNW TV – By Brittany Glas

  • Jul 09, 2014
  • KSN TV
  • -
  • by Brian Miller and Eric Armstrong

WICHITA, Kan. — A state judicial board finds a Sedgwick County judge has been sexually harassing female co-workers for years and now it’s up to the State Supreme Court to punish him.

Judge Timothy Henderson is being investigated for Sexual Harassment and other ethical violations.

The panel recommended that the Kansas Supreme Court publicly censure Henderson for “sporadic and pervasive comments of a sexual or suggestive nature.

But the State Supreme Court can punish Henderson further, including removing Henderson as a judge.

The allegations date back to 2006 and according to those who testified at a public hearing in May. Violations continued as recently as last year when a formal complaint was filed.

“Power tends to corrupt and judges have enormous power,” said legal expert Dan Monnat. “The panel has now found by clear and convincing testimony that this judge did not follow the rules designed to be a check on his power.”

According the recently released findings by the commission in judicial qualifications, Judge Henderson quote:

“….regularly made sporadic and pervasive comments of a sexual or suggestive nature.”

When the women accusing Henderson of wrongdoing were asked by the panel, why it took them so long to report sexual comments:

“She testified that she didn’t report the incidents before because (Henderson) was a judge and she felt he would retaliate.“

KSN reached out to Judge Henderson about the ruling, and he refereed us to his attorney who says his client has 20 days to accept or challenge the decision.

See video at KSN

KSN TV – By Brian Miller and Eric Armstrong

  • Jul 08, 2014
  • Dodge City Daily Globe
  • -
  • by Christopher Guinn

DODGE City, Kan. – Dodge City pastor Jerrold Wayne Ketner pled guilty to a single count of aggravated sexual battery as part of a plea agreement with the state that dropped six other felony charges.

The state sentence follows a charge that Ketner intentionally touched the victim without consent with the intent to arouse sexual desires on or between March 1 and March 31, 2013. The victim was manipulated through financial means, prosecutor Natalie Randall said.

The most severe charges facing Ketner, including one count of rape and one count of attempted rape, were dropped by the prosecution.

In light of his age, health and lack of prior convictions, Judge Leigh Hood sentenced the 80-year-old Ketner to three years of probation.

As terms of the probation, Ketner is not to contact the victim of the crime or her husband. Ketner will pay no restitution to the victim and will not have to register as a sexual offender. Due to Ketner’s age, Hood did not assign him community service as a condition of his probation.

The standard sentence for the severity level five felony is 32 months of confinement in a state prison.

“Dr. Ketner has accepted responsibility and has done it for the benefit of his family,” Ketner’s attorney Sal Intagliata said at the hearing, Tuesday.

Prior to sentencing, Intagliata added two documents to the court’s record, one outlining Ketner’s numerous health ailments and another documenting his record of service to the community.

“I leave that document as it speaks for itself,” Intagliata said. Intagliata also pointed out the number of supporters in the courtroom which he said have helped and will continue to help Ketner meet the conditions of his probation.

Ketner declined to make a statement at the hearing, as did the victim who was present when the sentence was levied.

Hood said he makes an effort to honor plea agreements between defendants and the state, though Ketner could appeal the sentence if he so chooses.

Read full story here

Dodge City Daily Globe – By Christopher Guinn

  • Jun 27, 2014
  • KSNW TV
  • -
  • by Brittany Glas

GARDEN CITY, Kansas – At least six Garden City teens could face charges for allegedly texting nude photos of a Garden Citty High School student when she was 13 years old.

In a press release issued Friday, Garden City Police said the investigation started in January of this year when it was reported to school officials who then notified the department.

To read the press release in its entirety, follow this link: GCHS Sexual Exploitation Press Release

It is unclear who took the photos and began sending them to students, however the law indicates that it doesn’t matter.

“The crime doesn’t hinge so much on who took the photo as much as it does who possesses it with the required criminal intent or who transmits it electronically, digitally, or photographically,” said Dan Monnat, a legal analyst.

Police have identified six suspects, ranging from 14 to 18 years old, and two victims, ranging from 14 to 16 years old.

“Sexting is a level five felony which carries a presumed sentence of imprisonment from 31 to 34 months,” said Monnat.

Officers also identified several potential suspects, victims, and witnesses, who are reportedly not cooperating with law enforcement.

KSN learned that there are at least three Kansas state laws that apply to sexting, all of which have already been requested in this case.

Police filed affidavits with the Finney County Attorney’s Office requesting the charges of:

  • Electronic Solicitation of a Child
  • Sexual Exploitation of a Child
  • Promoting Obscenities to Minors, and
  • Interference with a Law Enforcement Officer

The superintendent of Garden City Public Schools USD 457, Rick Atha, Ph.D., gave KSN News the following statement:

“Anytime something like this happens, we go to the police and give them our full cooperation. It was an issue in January and for a short time after, but in the last couple of months it hasn’t been.”

KSN also learned that cases like these could become more interesting in the future as a direct result of this week’s U.S. Supreme Court ruling that requires law enforcement to obtain a warrant before searching cell phones.

“We have to ask a question this week that we wouldn’t have had to ask last week and that is, ‘Did the law enforcement officers here acquire the images from the sexting telephones with a valid search warrant?’ If they didn’t, then the photos cannot be admitted into evidence, and probably, these individuals need to go free of being accused of any crime,” said Monnat.

See video at KSN

KSNW TV – By Brittany Glas

  • Jun 26, 2014
  • KSNW TV
  • -
  • by Felix Rodrigues Lima

WICHITA, Kan. – Supporters of same-sex marriage in Kansas say they are one step closer to having the ability to marry in their home state, after a ruling that more than likely could end up in the hands of the U.S. Supreme Court.

“This is another huge step forward for equality for LGBT Kansans and Americans who want to be able to marry their partners,” Thomas Witt, executive director for Equality Kansas, said.

The ruling by the 10th Circuit Court in Denver upheld a judge’s ruling in Utah, striking down that state’s same-sex marriage ban. It is binding in 6 states, including Kansas. But the circuit court put an immediate stay on the decision, pending an appeal to the Supreme Court.

“Does the decision of the court necessarily say those law enforcement officials must issue licenses? No, because the 10th Circuit stayed its decision,” legal analyst Dan Monnat said.

In light of the ruling, a county clerk’s office in Boulder, Colorado started issuing licenses to same sex couples. Here in Kansas, officials say a similar result is unlikely, since it is district court employees who issue a license to wed, not elected officials that have the authority to make those decisions.

“They are employees of the districts where they work, so if they’re not being told they can do that, they’re not going to be able to,” Witt said.

The Utah attorney general says it will appeal the decision to the Supreme Court, which could once again be in the middle of a same-sex marriage debate.

“Whether or not the United States Supreme Court reviews this is a discretionary matter,” Monnat said.

The Utah AG has 90 days to respond to the circuit court ruling an appeal to the Supreme Court. From there, it could be another year or two if the court decides to take on the issue.

KSNW TV – By Felix Rodrigues Lima

  • Jun 25, 2014
  • KSNW TV
  • -
  • by Felix Rodrigues Lima

WICHITA, Kansas – Individual privacy supporters applauded a Supreme Court ruling Wednesday that determined that the contents of cell phones can only be released to law enforcement through a search warrant.

It’s because “a person’s life and their privacy can be reconstructed, said the court, by means of their smartphone,” according to Dan Monnat, a legal analyst.

Local law enforcement agencies tell KSN there will not be much of a change to the way they operate in light of the ruling.

In the case of the Sedgwick County Sheriff’s office, they already work with the district attorney’s office to get search warrants, including cell phone records.

“We’re going to have the same procedures,” Lt. David Mattingly said. “It’s the Supreme Court’s decision. It’s not our place to argue that; it’s our place to follow what they say.”

There is concern the ruling could allow suspects to conceal evidence on their cell phone. As it stands, officers are trained to find other things to establish probable cause.

“There’s going to have to be something else tied with other than someone has a cell phone, that the deputy or detective will have to articulate in a search warrant application, and then a judge and district attorney’s office agree with that deputy that probable cause does exist,” Lt. Mattingly said.

In the majority opinion, the justices acknowledged that the ruling could impede some investigations, but considered it a small cost to pay to protect individual privacy.

“If these devices can be used for unlawful means, and the law enforcement officers have particular facts to demonstrate that, it should not be a problem for those officers to get a search warrant,” Monnat said.

KSNW TV – By Felix Rodrigues Lima 

  • May 27, 2014
  • Monnat & Spurrier

(WICHITA, Kan.) – Dan Monnat, of Monnat & Spurrier, Chartered, has been listed by Chambers USA 2014 as one of Kansas’ most notable litigators in the area of White-Collar Crime and Government Investigations. According to the publication’s editorial report, Monnat “continues to add to his impressive record of jury trials and appeals.”

Chambers USA surveys both lawyers and their clients each year. The publication bases its rankings on legal ability, client service, business acumen, diligence, professional conduct and pre-eminence in the attorney’s key practice area.

Monnat has practiced in Wichita for more than 38 years. A graduate of California State University, Monnat received his J.D. from Creighton University School of Law. He also is a graduate of Gerry Spence’s Trial Lawyer’s College.

A frequent national lecturer and editorial contributor on criminal defense topics, Monnat is the author of “Sentencing, Probation, and Collateral Consequences,” a chapter of the Kansas Bar Association’s Kansas Criminal Law Handbook, 4th edition. He was a member of the Kansas Sentencing Commission from 2007 – 2011.

Monnat has earned distinction as a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, the American Board of Criminal Lawyers, and the Litigation Counsel of America. He currently sits on the Kansas Association of Justice’s Board of Editors and is the Criminal Law Chair.

Monnat is a member of the National Trial Lawyers and served as a member of the National Association of Criminal Defense Lawyers Board of Directors from 1996 – 2004. He is a two-term past president of the Kansas Association of Criminal Defense Lawyers and a member of the Nebraska Criminal Defense Attorneys Association.