10th Circuit Court of Appeals Overturns Conviction in Clinic Case
by John Francis
In January 2002, Chanda Feldkamp, Class of 2002, and Sherri Schuck, Class or 2002, argued the case of Kenneth Mark Cook v. David McKune and The Attorney General of the State of Kansas before the 10th Circuit Court of Appeals. On March 18, 2003, the Court of Appeals filed its opinion to overturn the U.S. District Court's denial of Habeas Corpus relief. The opinion effectively overturns Mr. Cook's conviction.
On March 8, 1994, Kenneth Cook was found guilty of first-degree murder in the death of Charles Duty. At his trial, the court declared the State's key witness, David Rudell, unavailable. The transcript of Rudell's preliminary hearing testimony was read to the jury in lieu of live testimony. Unable to hear live testimony and cross-examination of David Rudell, the jury returned a guilty verdict. Cook appealed his conviction to the Supreme Court of the State of Kansas. The Court affirmed the conviction, but remanded for resentencing. On May 14, 1997, after exhausting all state remedies and appeals, Cook filed a writ of habeas corpus in the United States District Court for the District of Kansas pursuant to 28 U.S.C. §2254 challenging his conviction. At this point, the Washburn Law Clinic began to represent Cook. On March 27, 2001, the District Court denied the petition for writ of habeas corpus. The appeal to the 10th Circuit subsequently followed.
In January of 2002, Chanda and Sherri, students in the Clinic, traveled to Denver to argue the case before the 10th Circuit. Last week the 10th Circuit issued it's decision, directing the U.S. District Court to grant the writ of habeas corpus. In addressing whether the state had made reasonable efforts to locate their key witness such that he could be considered "unavailable" for 6th Amendment confrontation purposes, the 10th Circuit stated:
If the State's feeble exertions in this case can be called a good-faith effort to secure Rudell for trial, the Sixth Amendment protections embodied in Ohio v. Roberts would be toothless.
We therefore conclude that Cook's conviction was obtained in violation of his Sixth Amendment rights and that the Kansas courts' decision to the contrary was an unreasonable application of established federal law as determined by the Supreme Court of the United States.
. . .
Therefore, we reverse and remand with directions to grant the writ, conditioned upon the retrial of Cook by the State of Kansas.
This is a tremendously important decision for Mr. Cook — and for Constitutional Jurisprudence in the 10th Circuit. The Clinic has worked hard on this case for many years. In fact, Mr. Cook's case has been in the Clinic longer than I have. Credit for this work is shared by a long list of interns, many of whom were supervised by Prof. Michael Kaye prior to my arrival. All this work culminated in a highly persuasive brief and reply brief filed by Clinic students as well as very impressive oral arguments conducted by Chanda and Sherri before the 10th Circuit.
The entire opinion can be found at www.kscourts.org/ca10/cases/2003/03/01-3106.htm.
