KANSAS PROSECUTORIAL MISCONDUCT
A study of criminal appeals from 1970 to the present revealed 231 Kansas cases in which defendants alleged prosecutorial error or misconduct. In 31, judges ruled the prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In one, a dissenting judge ruled the defendant deserved a new trial because a prosecutor withheld evidence from the defense. One defendant was later proven innocent.
Former Sedgwick County prosecutor Denise Donnelly-Mills repeatedly made prejudicial comments, which resulted in the reversal of four convictions in less than a year and a half. After the reversals, a local newspaper ran a story detailing Donnelly-Mills’ conduct and the district attorney asked her to resign.
“The whole thing brings me to tears,” she told the Center. “Being a prosecutor was my life—it was everything I wanted to do since the eighth grade.”
In September 2000, the appellate court reversed Charles Pham’s aggravated assault conviction in part because Donnelly-Mills told the jury that defense counsel did not “want the truth” and did not “care about the truth.”
Donnelly-Mills said she made those comments in response to one of the defense attorneys taking the witness stand to testify that what a state witness told him differed from what that witness testified to at trial. Donnelly-Mills said when the defense attorney took the stand it was “unethical” and opened the door for her comments.
“I talked about it with my supervisors before closing argument and asked if it was okay to comment on their credibility,” she said. “My supervisors said it was okay because the attorney was now a witness.”
Donnelly-Mills said that when the appellate court decision came out criticizing her conduct, the local newspaper ran a front-page story detailing how her improper trial conduct prompted judges to reverse numerous convictions.
“I’ve just taken a beating by the media,” she said. “Much of what happened is not how it is portrayed in the appeals—I don’t think I was given a fair chance; they just assumed I was some out-of-control prosecutor.”
She said one important aspect of the case was never reported.
After the court reversed Pham’s conviction, Donnelly-Mills learned that Pham’s lawyers hadn’t filed the paperwork necessary to get him out of prison. Donnelly-Mills said she took care of it.
“I couldn’t get his lawyers to do it,” she said. “I don’t even know if he knows that I got him out of jail.”
In January 2001, the appellate court granted Jerry Magdaleno a new trial. During his trial for rape and indecent liberties with a child, Donnelly-Mills referred to the defense attorney as a liar. The appellate court ruled her comments were “gross and flagrant” misconduct.
“I made a statement I shouldn’t have made,” Donnelly-Mills said. “It was in the heat of the battle.”
Donnelly-Mills said after she had time to think about the case and what she said at trial, she decided to offer Magdaleno a minimum sentence on his rape charge. She said she hoped that would compensate for her erroneous trial comments.
“He didn’t get any more time for the rape,” she said. “I thought that would take care of the problem.”
In November 2001, the appeals court reversed Melvin Holmes’ first-degree murder conviction because Donnelly-Mills “deliberately misstated the law to the jury.”
Donnelly-Mills said she still doesn’t know what was wrong with her arguments at Holme’s trial. She said her supervisor had approved her arguments before trail. At trial, she said, the judge seemed to have no problems with her arguments.
“I know people who have said it before, and I know people who have said it since then,” she said. “But because of my name, they were unhappy—at the appellate argument to the Supreme Court, the defense attorney started the argument by saying, this is a Denise Donnelly-Mills case, need I say more.”
Donnelly-Mills said in the ten years she worked in the Sedgwick County District Attorney’s office, there were no training sessions on improper arguments.
“I never did anything to try and hurt somebody,” she said. “Had I been trained properly, I probably wouldn’t have had those problems.”
When the DA’s office faced another appeal in which defendant George Cook alleged Donnelly-Mills deprived him of a fair trial, her supervisors admitted that Donnelly-Mills’ comments prejudiced the defendant and agreed to a new trial without an appeal.
“I was told they reviewed my closing argument, and I said a witness was telling the truth too many times,” Donnelly-Mills said.
She resigned in January 2002.
“I was asked to leave because it was the political thing to do,” she said. “I worked very hard for that office and for the victims in that community, and it didn’t get me anything but a lot of unhappiness and my entire reputation destroyed.”
Out of 60 Sedgwick County defendants who alleged a prosecutor’s conduct deprived them of a fair trial, 11 received new trials because of improper closing arguments. Appellate judges granted nine of the new trials after 1988, the year when the District Attorney Nola Tedesco took office.
Sedgwick County defense attorney Bradley Sylvester said the appellate court’s decisions are starting to make a difference.
“It is my impression that prosecutorial misconduct is coming to an end in Kansas because the courts are coming down on it.”
Geary County District Attorney Chris E. Biggs told the Center that the appellate decisions referring to misconduct cast an unfair shadow on prosecutors
“I’ve known some prosecutors who just aren’t going to give closing arguments anymore because it’s a minefield,” Biggs said. “They call it misconduct, whether it’s intentional or not, because prosecutors are held to a higher standard—we have an independent duty to the truth.”
He added, “Just about every case now, the defendants are raising prosecutorial misconduct because it’s an issue they had success with in some cases.”
Ready to fire up the word processors and printers again? This time we have a good one to write to. You've probably never heard of her, but when it comes to Section 861, it's HER BUSINESS. This is the government lawyer at IRS Chief Counsel who specializes in Section 861 and related regulations. If there is ANYONE inside the system who should be able and willing to explain that part of the law (hint: there isn't), she would be it.
Any day now we should have a fairly detailed letter posted that accompanied the first letter to Ms. Felker, which showed that the author (Tom Clayton) knows what he is talking about, and that evasions and insults just won't do. (There's no need for every one of us to include that explanation, though.) If YOU need to determine your taxable domestic income (or need to determine whether you have any), be sure you do it properly. You CANNOT DO THAT if you do not know the correct answers to the four questions below.
I can tell you right now, the chances of the government "expert" on 861 (Ms. Felker) giving you answers is slim to none. But I encourage you to ask anyway. It will help show the American public that while the IRS demands that they pay their "fair share," even their top experts are either UNABLE or UNWILLING to tell you how to determine what your "fair share" (according to the LAW) actually is. Is that not a bizarre situation?
You can send whatever cover letter you want to Ms. Felker. (It doesn't need to be anything more than "please provide me with written answers to the enclosed questions," unless you want to say more.) Here is her mailing address:
Barbara Felker, Chief, Branch 3
Office of Associate Chief Counsel (International)
1111 Constitution Avenue NW
CC:INTL:B03/Rm 4555
Washington, DC 20224
And below are the questions. (There are only four as they are the main ones which relate to her area of specialty.) After you've sent the questions, PLEASE TELL ME YOUR INITIALS, THE STATE YOU'RE IN, AND THE DATE THE LETTER WAS SENT. I want to have a record of how many letters she ignores. The format should be like this:
"L.R. (PA) 7/21/03"
The results of all the past letter-writing campaigns, and this one in particular, WILL come in very useful in the near future.
Sincerely,
Larken Rose
larken@taxableincome.net
http://www.theft-by-deception.com
---------------------------------
Questions Concerning the Determination of Taxable Domestic Income
1) Who should and who (if anyone) should not use the rules in 26 USC § 861(b) and the related regulations beginning at 26 CFR § 1.861-8 (in addition to any other pertinent sections) to determine his taxable domestic income?
2) If a U.S. citizen lives and works exclusively within the 50 states, and receives all of his income from within the 50 states, do 26 USC § 861(b) and 26 CFR § 1.861-8 show such income to be taxable?
3) Should one refer to 26 CFR § 1.861-8T(d)(2) to determine whether the “items” of income he receives (e.g. compensation, interest, rents) are excluded for federal income tax purposes?
4) What is the purpose of the list of non-exempt income in 26 CFR § 1.861-8T(d)(2)(iii), and why is the domestic income of the average American not on that list?
