Lessons from recent win in Reno County District Court.

Carl Maughan, a lawyer with Maughan and Maughan L.C. recently won a jury trial in Reno County District Court where our client had been charged with aggravated battery (intentional physical contact causing great bodily harm or disfigurement.) Aggravated battery is a severity level 4 person felony. Our client was facing a prison sentence of approximately 16 years. At the close of the trial the jury returned a verdict finding our client not guilty of aggravated battery and guilty of a battery, a class B misdemeanor which carries a maximum sentence of six months in the county jail.

The case had a peculiar procedural history. Our client was arrested and accused of the crime after he had been involved in a physical altercation in a bar in Hutchinson, Kansas. Some time after the altercation the complaining witness reported to the emergency room where he was determined to have a broken nose which ultimately required surgery to repair. The case was originally charged as a a severity level 7 aggravated battery (a felony which requires mere bodily harm as opposed to great bodily harm.) Our client had previously waived his right to a preliminary hearing while represented by a different attorney. After we entered our appearance as the attorney of record we prepared for trial and appeared in court on the day the case was set for jury trial. However, on that date the prosecutor announced that they intended to amend the charges to the higher level felony if the defendant did not plea as charged. Our client declined the offer. However, because he had waived his right to a preliminary hearing when charged with the lesser crime, the amendment to the higher severity level of aggravated battery allowed us to insist upon a preliminary hearing.

Prior to the preliminary hearing, a review of the police reports revealed few defenses. However, at the preliminary hearing the complaining witness testified that his nose was broken, not in the bar as indicated in the police reports, but outside the bar after the initial fight when someone had kicked him in the face. He further testified that he did not know who kicked him and simply assumed it was our client because of the earlier altercation.

Later, on the day of the jury trial, the prosecution offered our client a plea which would have resulted in a six year sentence and then seemed incredulous when our client refused the offer. The prosecutor was convinced that the medical evidence would show that the complaining witness had suffered great bodily harm.

At trial we were able to use the complaining witness' preliminary hearing testimony to show that there was no evidence that our client had delivered the kick which supposedly broke the nose of the supposed victim . We were also able to introduce evidence that the complaining witness had been beaten bloody in a bar fight just a week earlier. The doctors who testified were unable to say whether the broken nose had occurred the night that he went to the emergency room or a week earlier. As a result the jury acquitted our client of aggravated battery and found him guilty of a misdemeanor battery resulting from the altercation inside the bar.

This result did not appear possible after an intitial review the police reports. It was only after cross examining the complaining witness at a preliminary hearing and obtaining an admission that he did not see who had kicked him and did not know who had kicked him, that a road to victory became apparent. When a portion of a transcript from the preliminary hearing containing this testimony was placed before the jury along with evidence that the injury could have occurred a week earlier, the jury did the right thing and concluded that there was reasonable doubt as to whether our client committed the crime that the State accused him of committing.

The lesson to be gleaned from this trial for the defense is as follows: 1. Do not waive your right to a preliminary hearing unless you do not expect to go to trial. Obtaining a preview of the testimony before trial is invaluable. 2. Talk to the witnesses even if victory seems unlikely. 3. Even cases that appear to be hopeless upon first review can be won. (As always this advice is not absolute. The specific facts of any individual case may warrant a different approach.)

The lessons that can be learned by the prosecutor: 1. If you have successfully obtained a waiver of preliminary hearing do not amend the charges in such a way that would allow the defendant a second chance at a preliminary hearing unless you know what your witnesses will say. 2. If you were not present during the preliminary hearing read the transcript so that you know what your witnesses said under oath. 3. Do not assume that you know everything about the case just because you have read the police reports. Sometimes the investigation is lacking.

In this case we were able to save our client from 16 years of undeserved incarceration by doing the basics. Have a preliminary hearing, get a transcript of the hearing, talk to the witnesses and carefully prepare for trial. Maughan and Maughan LC won this case by trying our case rather than that of the prosecution.