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Kansas Supreme Court Upholds Separation of Powers at Self Defense Hearings

Sunday, March 12, 2017 16:57
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(Before It's News)

The Kansas Supreme Court held that courts are independent of the state's executive branch, when ruling on immunity from prosecution for self defense.

In the case before the court, the self defense claim was very strong. Immunity from prosecution was granted. The state appealed, arguing that the judge was required to look at the evidence in the way most favorable to the prosecutor's case. From

The state’s highest court rejected a tougher standard set by a lower court for determining when someone can avoid prosecution for wounding or killing another person. The state Court of Appeals had said trial judges must view evidence on self-defense claims in the light most favorable to prosecutors; the Supreme Court said the review must be impartial.

The 2006 law says a person who is attacked “has no duty to retreat” and can use force in response. People who are arrested or charged with a crime but assert self-defense can seek a court hearing to determine whether they are immune from prosecution.

“Stand Your Ground” and “Castle Doctrine” self defense law reforms are a response to the abuse of prosecutorial power in self defense cases. Defendants may be near certain of winning a jury trial with a claim of self defense.  But prosecutors know that undergoing prosecution, with the attendant legal costs, stress, and time consuming defense, is a significant punishment in itself. There is always a small but real chance of conviction. Threatening such proceedings and the highest level of punishment often results in plea bargaining, even if the evidence of self defense is very strong.

Similar to self defense reforms in Florida, the Kansas statute allows a defendant to have a judge review the evidence before prosecution is started. If the evidence is so one sided as to make a conviction very unlikely, the court can grant immunity from prosecution. The point of such immunity hearings is to prevent prosecutors from pursuing cases that are near certain to lose on self defense grounds.  The immunity hearing is a mild check on the almost unlimited power of prosecutors.

The Kansas Supreme Court ruled that courts cannot take a side when determining the facts of such cases. The entire ruling can be viewed at the link. Here is the summation from

Defendant was charged with aggravated battery. After a preliminary hearing, Defendant moved for a grant of immunity pursuant to Kan. Stat. Ann. 21-5231. After weighing the evidence, the district court granted Defendant immunity and dismissed the charges. The Court of Appeals reversed and reinstated the complaint, concluding that the district court was required to view the evidence in a light favoring the State and, under the correct standard, there was probable cause to rebut Defendant’s claim of immunity and submit the case to a jury. The Supreme Court reversed the decision of the Court of Appeals and affirmed the decision of the district court, holding (1) because the Court announced a new rule of law enunciated herein, the Court of Appeals must be reversed; and (2) the district court correctly granted Defendant statutory immunity pursuant to section 21-5231.

Some people want the court to side with the prosecutors against people who make self defense claims. From

Djuan Wash, a Wichita community activist, said states can’t ensure that minority defendants will enjoy the same self-defense protections as white defendants. Also, Wash said, a person can provoke an altercation and invoke self-defense when it turns violent.

“There’s so little accountability,” he said. “There’s no way to ensure that these laws are being applied fairly.”

There is no way to ensure that *any* law is absolutely being “applied fairly”. The best we can hope for is the principle of equality under the law be understood and celebrated in society; that checks and balances be applied to those in power, from police officers and judges on up; and that a vigorous freedom of speech and the press, as enjoyed on the Internet, allows criticism and exposure of those who abuse their power under the law.

With this law, an independent party, the judge, who has no emotional interest in the case, and who has no self interest in piling up a record of convictions, may be appealed to.  Only those cases with significantly one-sided evidence are granted immunity.

In the similar Florida law, critics compiled a list of the results of all 119 immunity hearings that had occurred.  Black victims were twice as likely to use the law as white victims. John Lott, in the

Florida has the most detailed and by far the most accurate data on Stand Your Ground Laws, compiled by the Tampa Bay Times. Blacks make up 16.7 percent of Florida’s population, but they account for 34 percent of defendants who invoke this defense. Black defendants who invoke this statute are acquitted 4 percentage points more frequently than whites who do so.

The Kansas Supreme Court deserves credit for upholding the separation of powers in the Republic. The courts should not simply be an extension of the prosecutor's office.

 Kansas is known as the place where the “collective right” fiction about the Second Amendment was created in 1905, by another Kansas Supreme Court.  In 2017, the current Kansas Supreme Court made partial amends.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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