In re Spradling ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,083
In the Matter of JACQUELINE J. SPRADLING,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed May 20, 2022. Disbarment.
Matthew J. Vogelsberg, Deputy Disciplinary Administrator, argued the cause, and Krystal L. Vokins,
Deputy Disciplinary Administrator, was on the brief for the petitioner.
LJ Leatherman, of Palmer Law Group, LLP, of Topeka, argued the cause and was on the briefs
for respondent.
PER CURIAM: This is an original proceeding in discipline filed by the office
of the Disciplinary Administrator against the respondent Jacqueline J. Spradling, an
attorney admitted to the practice of law in Kansas in 1992. After a December 2020
hearing before a panel of the Kansas Board for Discipline of Attorneys, the panel issued a
final hearing report on June 3, 2021. The hearing panel determined that respondent
violated KRPC 1.1 (2021 Kan. S. Ct. R. 321) (competence), KRPC 3.1 (2021 Kan. S. Ct.
R. 384) (meritorious claims and contentions), KRPC 3.3(a)(1) (2021 Kan. S. Ct. R. 385)
(candor toward the tribunal), KRPC 3.4(c) and (e) (2021 Kan. S. Ct. R. 389) (fairness to
opposing party and counsel), KRPC 8.1 (2021 Kan. S. Ct. R. 424) (bar admission and
disciplinary matters), and KRPC 8.4(c) and (d) (2021 Kan. S. Ct. R. 427) (misconduct)
involving respondent's conduct during the prosecutions of Dana Chandler and Jacob
Ewing, Chandler's direct appeal, and respondent's disciplinary proceeding.
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After the hearing and arguments, the hearing panel made the following findings of
fact, conclusions of law, and recommendations:
"Findings of Fact
"31. The hearing panel bases the following findings of fact on the evidence
presented during the disciplinary hearing, including the exhibits admitted into evidence
and the testimony of the witnesses. The hearing panel finds the following facts by clear
and convincing evidence.
"32. The hearing panel is cognizant that the criminal cases which gave rise to
this case remain pending in district court. The hearing panel's findings of fact and
conclusions of law do not reflect what the State may or may not be able to prove during
any retrial of the cases. Rather, the findings of fact and conclusions of law relate only to
the respondent's conduct during the previous trials and appeals held in the cases as well
as the respondent's conduct during the disciplinary investigation.
"Prosecution of Dana Chandler
"33. M.S. and Dana Chandler were married in 1982. Two children were born of
the marriage. On March 3, 1997, M.S. filed a petition for divorce in the District Court of
Douglas County, case number 97D0163. That same day, M.S. filed an amended motion
for interlocutory relief. In the motion, M.S. included standard language seeking an order
mutually restraining Chandler and M.S. from bothering the other. On March 5, 1997, the
district court granted M.S.'s motion and ordered that, 'Petitioner and respondent are
mutually restrained and enjoined from contacting, bothering, harassing or molesting each
other in any manner whatsoever, wheresoever each may be, pending the final hearing of
this matter.'
"34. On March 5, 1998, the district court entered a journal entry of divorce. The
district court awarded custody of the minor children to M.S. and visitation to Chandler.
Based on the language contained in the ex parte order referenced above, the standard
restraining order terminated on March 5, 1998.
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"35. M.S. developed a romantic relationship with K.H. K.H. resided in Topeka,
Kansas.
"36. On October 13, 1998, following the expiration of the standard ex parte
restraining order, M.S. filed a motion for an immediate restraining order in the divorce
action. In the motion for an immediate restraining order, M.S. asserted that Chandler was:
(a) intentionally, maliciously and repeatedly following and
harassing the petitioner, [M.S.];
(b) destroying personal property of petitioner's acquaintances,
including on two different occasions slashing automobile
tires and ripping the convertible top of an automobile;
(c) harassing petitioner on the telephone under the pretense of
talking to the parties' children;
(d) verbally abusing petitioner in the presence of the children
and parents at sporting activities; and
(e) verbally abusing petitioner in the presence of friends and
neighbors.
There are no entries in the Record of Action in the Douglas County District Court case
that establish that Chandler filed a response to M.S.'s motion, that the motion was set for
hearing, or that the district court ruled on the motion.
"37. In approximately 2000, M.S. and the children moved to Topeka, Kansas.
Neither M.S. nor K.H. sought or obtained a protection from abuse order restraining
Chandler in either Douglas County, Kansas or Shawnee County, Kansas.
"38. During the afternoon hours of July 7, 2002, M.S. and K.H. were found
dead in K.H.'s Topeka home, from gun shot wounds. There was no evidence of a
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burglary—there was no evidence that anything was missing from the home; K.H. was
wearing jewelry, M.S.'s wallet containing more than $950 in cash was in his shorts, and
K.H.'s purse containing more than $350 in cash was on the kitchen counter. A sliding
glass door leading into the house from the back was ajar. The gun was never recovered
and no fingerprints were found on the empty shell casings or elsewhere at the scene of the
crime.
"39. At the time of the murders, Chandler lived in Denver, Colorado. Later,
Chandler moved to Oklahoma.
"40. In July 2011, Chandler was charged with two counts of premeditated first-
degree murder. See K.S.A. 21-3401(a).
"41. The trial was held in March, 2012. The respondent was the lead prosecutor
in Chandler's murder trial. There were 10 days of testimony during which the State called
over 80 witnesses and introduced nearly 900 exhibits into evidence. The jury convicted
Chandler of two counts of premeditated first-degree murder and the district court
sentenced Chandler to two consecutive life sentences, each carrying a mandatory
minimum 50-year prison term.
"42. Chandler took a direct appeal of the convictions to the Kansas Supreme
Court. Chandler challenged the sufficiency of the evidence and asserted that the
respondent engaged in prosecutorial misconduct. On April 6, 2018, the Supreme Court
reversed Chandler's convictions based on prosecutorial misconduct committed by the
respondent. [State v.] Chandler, 307 Kan. 657, 414 P.3d 713 (2018).
"Protection from Abuse Order
"43. On January 23, 2012, more than a month before Chandler's jury trial
commenced, the respondent filed a motion to admit K.S.A. 60-455 evidence. In the
motion, the respondent sought permission to offer evidence that M.S. filed a motion for
an immediate restraining order on October 15, 1998, indicating that Chandler
intentionally, maliciously, and repeatedly followed and harassed him, that she destroyed
the personal property of his acquaintances, and that she engaged in telephone harassment.
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The respondent also sought permission to offer evidence of a protection from abuse order
filed by M.S. and Chandler's daughter in 2009.
"44. The district court granted the motion and permitted the respondent 'to
present evidence regarding 1) the following and harassing of [M.S.] including the
October 15, 1998 PFA Order, 2) the entering of [M.S.]'s home, 3) arguing with victims
[M.S.] and [K.H.], 4) peeking inside [M.S.]'s home, and 5) frequently phoning both
victims at various times during the day and night.'
"45. The district court affirmed its prior ruling that M.S. and K.H.'s statements
that they feared being murdered by Chandler were inadmissible hearsay. The court,
however, ordered that 'a witness could relate incidents (pursuant to K.S.A. 60-460[d][3])
if those incidents were recently perceived by the victim(s)' and were otherwise admissible
based on the district court's rulings. Finally, the District Court ordered that a witness
'could testify about his or her personal observation of the victim's demeanor while
relating the incident.'
"46. In the respondent's opening statement, she stated that M.S. 'responded to
[Chandler's request to set aside all the orders in the divorce case] with motions for an
immediate restraining order against the defendant which is a court ordering the defendant
to stay from him.' M.S. filed only one motion—rather than multiple motions—seeking an
immediate restraining order. Later, in her opening statement, the respondent stated that
M.S. 'asked for the immediate restraining order . . . on October 15th, 1998. And in his
request, . . . said that the defendant continued to follow and harass him . . .'
"47. During her opening statement, the respondent also displayed a slide show.
The slide show included a slide which stated, '[M.S.] responded with Motions for
Immediate Restraining Order against the defendant . . .'
"48. Gordon Rock represented M.S. in the divorce action filed in Douglas
County, Kansas. The respondent called Mr. Rock to testify as a witness in Chandler's
trial. The respondent did not question Mr. Rock regarding the existence of any type of
restraining order in effect at the time of the murders.
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"49. Sergeant Volle was the lead detective who investigated the murders of
M.S. and K.H. The respondent called Sergeant Volle to testify as a witness in the case
against Chandler. On direct examination, the respondent did not ask Sergeant Volle any
questions regarding the existence of a restraining order.
"50. During redirect-examination, the respondent questioned Sergeant Volle
regarding a protection from abuse order as follows:
'Q. Will you tell the jury what a production [sic] from abuse or PFA is.
'A. It's a document signed by the Court that says you are not able to have
contact with another person, you're not supposed to call them, write them,
contact them in any manner.
'Q. A court order precluding one person from contacting another?
'A. Yes.
'Q. Did [M.S.] get a protection from abuse?
'A. Yes, he did.
'Q. Against who?
'A. Against the defendant.
'Q. In 1998?
'A. That's correct.'
"51. On recross-examination, the following exchange occurred between
Sergeant Volle and defense counsel:
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'Q. Detective Volle, you testified that [M.S.] had obtained a protection from
abuse order; is that correct?
'A. Yes.
'Q. Do you have that?
'A. It's in the divorce file. I don't have a copy of it.
'Q. Was it actually signed by a judge and filed or was it a motion or a request
for one that wasn't—
'A. I don't recall.'
"52. During the respondent's closing statement to the jury, she argued:
'How else do we know the defendant is guilty? [M.S.] got a protection from
abuse, a court order. He applied and said, hey, Judge, please order this woman to
stay away from me and the Judge agreed. And in 1998, meaning one year after he
filed for the divorce, he was continuing to have problems with the defendant not
leaving him alone. So he got a court order saying she has to stay away. The
protection from abuse order did not stop the defendant, though.'
Again, the respondent displayed a slide show. The slide show included slides that stated,
'How Else Do We Know the Defendant is Guilty [M.S.] GOT A PROTECTION FROM
ABUSE COURT ORDER KEEPING DEFENDANT AWAY FROM HIM IN 1998' and
'How Else Do We Know the Defendant is Guilty THE PFA DID NOT STOP
DEFENDANT . . .'
"53. Chandler filed a direct appeal of her convictions to the Supreme Court.
The parties filed initial briefs and the Supreme Court conducted oral arguments. The
respondent was one of the attorneys who wrote the initial brief and she argued the case.
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"54. The respondent drafted the statement of facts included in the State's
initial appellate brief. Additionally, the respondent signed the State's initial brief.
"55. In the State's initial brief, the respondent stated that '[w]hile Defendant
proclaims that there was no protection from abuse order, the record shows otherwise.'
The respondent also stated that M.S. 'was granted a protection from abuse order in 1998.'
"56. The respondent delivered the oral argument on behalf of the State.
During the argument, the respondent conceded that M.S. did not obtain a protection from
abuse order from the Douglas County District Court. The respondent, however, continued
to argue that a restraining or protective order followed M.S.'s October 1998 motion for an
immediate protective order.
"57. Upon additional questioning by members of the Supreme Court,
however, the respondent ultimately conceded that there was no document evidencing a
restraining or protective order in evidence. After multiple questions by the Supreme
Court regarding the statements in her closing argument relating to the existence of a
restraining or protective order, the respondent finally clarified:
'I don't want to mislead this Court. There is no document that I found in State's
Exhibit 969 which was the divorce file. There's no document in that file that is
either a protection from abuse or a protective order. So, if I indicated that there
was a document, I don't want to mislead you. I do know, speaking with the
victim's family members, that the order existed. 'Um, and that that was
discovered by Detective Volle as the lead detective in this case.'
"58. Then, the parties were permitted to present additional supplemental briefs
and the case was argued for a second time. At the time the supplemental briefs were filed
and the case was argued for a second time, the respondent was no longer employed by the
Shawnee County District Attorney's office and she did not participate in those portions of
the appellate case.
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"59. On July 27, 2016, Keen Umbehr filed a complaint against the respondent.
The respondent provided a written response to the disciplinary complaint to the
disciplinary administrator's office on October 4, 2016. In her response to the disciplinary
complaint, the respondent again relied on Sergeant Volle's testimony. Specifically, the
respondent stated, 'Here, the lead detective testified under oath that [M.S.] had received a
protection from abuse order against the defendant in October of 1998.' The respondent
did not acknowledge that Sergeant Volle recanted his testimony on recross-examination.
"60. After the initial complaint and response were received by the disciplinary
administrator's office, the disciplinary investigation was placed on hold pending the
Supreme Court's decision in Chandler's direct appeal. On April 6, 2018, the Supreme
Court reversed Chandler's convictions and the disciplinary investigation resumed.
"61. As part of the disciplinary investigation, on July 24, 2018, the respondent
submitted to a sworn statement. During the sworn statement, the respondent testified
under oath that M.S. had a protection from abuse order in place at the time of the
murders.
'A. . . . So, in preparing the case for trial, I spent enough time with Detective
Volle to try and familiarize myself with a case that he had spent years,
really, investigating, and during that trial preparation there are many things
that Volle passed on to me, and one of them was there was a pending PFA at
the time that [M.S.] and [K.H.] were murdered. And so we—
'Q. Can I interrupt you?
'A. Yes.
'Q. A pending PFA, you mean a pending PFA that has been asked for [but] not
signed by a judge?
'A. No, signed, but—
'Q. What does pending mean then?
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'A. Pending meaning—
'Q. Outstanding?
'A. —signed, current, controlling, in place.
'Q. In effect?
'A. In effect, yep. . . .'
The respondent also testified that she did not recall that Sergeant Volle recanted his
redirect testimony on recross-examination.
"62. At the disciplinary hearing, the respondent called K.R., M.S.'s co-worker,
to testify. K.R. testified that he recalled reading over a restraining order with M.S.
However, on examination by a hearing panel member, K.R. testified he believed that the
divorce was not yet finalized when he read over the restraining order with M.S.
"63. The respondent also presented an affidavit from K.R. K.R.'s affidavit
provides, in pertinent part, as follows:
'8. [M.S.] told me he was getting a restraining order to keep [Chandler]
away from him.
'9. I know [M.S.] had a restraining order prohibiting Chandler from
contacting him.
'10. I believe [M.S.] brought the restraining order to work and show[ed] it to
me, saying, "Finally".'
Thus, at best, K.R. confirmed only that M.S. received the standard restraining order
issued at the outset of the divorce action, restraining both parties from bothering the
other.
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"64. Moreover, the hearing panel finds that K.R.'s testimony lacks credibility as
it conflicted with other statements made by K.R. (The respondent made a note that K.R.
stated, 'M wanted a restraining order.'); (K.R. testified at Chandler's preliminary hearing
that M.S. wanted a restraining order.); and (K.R.'s testimony at Chandler's jury trial was
struck by the district court after K.R. testified that M.S. had a restraining order, called the
police, and 'just point blank [told] them what do I got to do, die before you're going to
help me.')
"65. Sergeant Volle testified at the respondent's disciplinary hearing. He
testified that he does not have a specific memory of a specific family member of a victim
informing him of the existence of a restraining order. Rather, he recalled reviewing Mr.
Rock's client file, observing the motion for an immediate restraining order, and noting
that Mr. Rock's file did not include a restraining order issued in response to the motion.
Sergeant Volle recalled contacting the Douglas County District Court, requesting a copy
of any order issued in response to the motion, but not receiving an order. He testified that
he would have noted the existence of a restraining order in the police reports only if he
was able to document the order's existence. The hearing panel finds that Sergeant Volle
did not include a reference to a restraining order in the police reports because he was
unable to verify an order's existence. Sergeant Volle testified that he assisted in preparing
the probable cause affidavit and that the probable cause affidavit did not include any
references to a restraining order in effect at the time of the murders.
"66. Finally, Sergeant Volle testified:
'Again, it's—I—I can't deal in hearsay. I get the hearsay coming into the report. I
had recollection that there was an application, but Douglas County could not
provide me a copy of the actual order, the final order. So it's—it's a matter of I
can believe it's there, I can't prove it's there, so it's not going to go in my
affidavit. But the fact that they couldn't provide it doesn't mean that it doesn't
exist. It's just a matter I can't prove it. So I'm not going to put it in my affidavit if
I can't prove it, . . .'
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"67. The respondent testified on her own behalf at the disciplinary hearing.
For the first time, the respondent acknowledged that she introduced no evidence that a
restraining order was in effect at the time of the murders. She testified, 'And I can't tell
you as I sit here today that the restraining order exists. Since—the—the—since you filed
the complaint against me, I went looking, and I can't find it.'
"68. She admitted that she was wrong when she stated in the sworn statement
that a protection from abuse order was in effect.
'Q. . . . And when they asked you about the PFA you made the claim that there
was a PFA still in existence at the time of the murders?
'A. Yes, I did. I misspoke.
'Q. And you actually said that there was two PFAs, one in '97 and one in '98—
'A. Yes.
'Q. —that were both active at the time of the murders?
'A. I don't believe—I don't remember saying they were both active at the time
of the murders. However, I did say that at least one, I think I said that the
one was active or in place at the time of the murder, and I was wrong.
'Q. I don't believe you said that you were wrong in your sworn statement.
'A. Yeah.
'Q. You were pretty—you were pretty adamant it was in effect?
'A. Yeah, you're right, I really was. And, you know, when I gave my sworn
statement my mistake was not asking to look at the file. I hadn't seen it, 'um,
since, oh—I don't know if I looked at the facts before I gave oral arguments
in 2016 or not. Assuming that I did, that would have been the last time I
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saw, so it—it had been a couple years, two to six—two to six years, I think
that is, since I had seen the file. And so, what I should have done, and I
failed to do, was ask to look at the discovery before I gave my statement.
'Q. And if you went and looked at the discovery, what would it have told you?
'A. What it told me as I prepared for this hearing, that there is no document
that's a restraining order.'
"69. The respondent testified that she did not plan to ask Sergeant Volle
questions about a restraining order. But, during redirect-examination, the respondent
asked Sergeant Volle about the existence of a protection from abuse order to differentiate
Chandler from other suspects.
"70. The respondent testified that she did not recall that Sergeant Volle changed
his testimony on recross-examination.
"71. The disciplinary administrator's office questioned the respondent about any
attempts she made to verify whether the Douglas County District Court granted M.S.'s
motion for an immediate restraining order. Initially, the respondent did not squarely
answer the question. Rather, the respondent explained that it was not her practice to offer
restraining orders into evidence and it was Chandler's conduct that was relevant not
whether an order was issued restraining her from contacting M.S. Eventually, the
respondent testified that she could not recall whether she looked for an order in the
divorce file during the criminal investigation and prosecution. Likewise, she could not
recall whether she directed someone else to look for an order in the divorce file. But see
(The respondent testified that she did not 'try to verify whether or not an order had
resulted from this motion filed in October of '98.')
"72. During the disciplinary hearing, the respondent testified that prosecutors
use the term, 'protection from abuse orders' or 'PFA' interchangeably with other types of
orders including restraining orders, protective orders, no contact bond conditions, no
contact probation conditions, and no contact provisions in divorce cases. Additionally,
the respondent called other witnesses who testified similarly.
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"Five Minute Phone Call
"73. On July 5, 2002, two days prior to the murders, Chandler called M.S. seven
times. One of the phone calls lasted five minutes.
"74. During opening statement of Chandler's jury trial, the respondent alleged
that during the five-minute phone call M.S. told Chandler that he was engaged to marry
K.H. The respondent implied that news of the engagement prompted Chandler to travel to
Kansas and murder M.S. and K.H. two days later.
"75. S.R., Chandler's sister, testified at Chandler's jury trial that Chandler was
aware that M.S. was going to marry K.H. and that Chandler most likely learned the news
during a conversation with M.S. S.R. did not testify about when Chandler learned that
M.S. was going to marry K.H. The respondent did not question S.R. about the five-
minute phone call.
"76. During Chandler's jury trial, Agent Malick testified about his interview of
S.R. Agent Malick confirmed S.R.'s trial testimony. Again, the testimony did not include
any information about when Chandler learned that M.S. planned to marry K.H. Further,
the respondent did not question Agent Malick whether S.R. reported that Chandler
learned that M.S. planned to marry K.H. during the five-minute phone call.
"77. At trial, T.S., M.S.'s brother, testified that M.S. relayed a conversation to
him that M.S. had with Chandler in the 'breezeway' of M.S.'s home. Specifically, T.S.
testified that sometime in late May or early June 2002—more than a month prior to the
murders—M.S. found Chandler in the 'breezeway' of his home. T.S. testified that, during
that conversation, Chandler suggested to M.S. that they reconcile and that she move into
his home so that they could again live together as a family. T.S. testified that, in response,
M.S. told Chandler that he was marrying K.H. The respondent did not question T.S.
about his knowledge of the five-minute phone call.
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"78. During closing argument, the respondent, again, asserted that two days
prior to the murders, during the five-minute phone call, M.S. told Chandler that he was
engaged to marry K.H.
"79. On appeal, Chandler asserted that the respondent's statements about the
content of the five-minute phone call constituted error.
"80. During the oral argument, the Supreme Court questioned the respondent
about her argument to the jury that M.S. informed Chandler of his engagement to K.H.
during the five-minute phone call. In response to a question by Justice Johnson, the
respondent asserted, 'We know exactly what happened during that phone call because
[M.S.] told his brother, [T.S.]. . . . I'm going to get married to [K.H.] and I'm afraid of
what that news will do when I tell [Chandler] because I'm afraid of what she will do . . . .'
Further, in response to a question by Justice Beier, the respondent confirmed her position
that T.S. testified about the substance of the discussion between M.S. and Chandler
during the five-minute phone call.
"81. Upon further questioning by the Supreme Court, the respondent abandoned
her argument that T.S.'s testimony established that Chandler learned of the engagement in
the five-minute phone call. See also (At the disciplinary hearing, the respondent agreed
that T.S.'s testimony did not establish the substance of the five-minute phone call.)
"Escape Route Through Nebraska
"82. During her opening statement, the respondent stated that the State's
evidence would show:
'. . . The defendant's actual route included that she went from Denver to Topeka,
[M.S.] and [K.H.]'s house, and after killing both [M.S.] and [K.H.] in an interest
to get out of the state as quickly as she could, she drove directly up to Nebraska.
After she gets to Nebraska, she turns around and goes home heading towards
Denver. This route matches the defendant's gas purchases and the defendant's gas
consumption by her credit card receipts. It is the only route that matches that
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she's attributed to. Meaning, what we know she bought in gas is not consistent
with what she told Detective Volle she did. It is not consistent with what she told
[J.B.] she did the weekend of the murder.'
"83. Before the jury, the respondent asked Sergeant Volle whether there was 'a
route other than going east that would have taken a person out of Topeka into another
state that's the quickest route to get out of Kansas.' Defense counsel objected and
requested a sidebar. The attorneys approached the bench and defense counsel argued that
the question called for speculation. The respondent responded, 'Your honor, what I'm
trying to explain is that if a person heads north, they can get out of [the] state into
Nebraska, and it may be that I asked it inartfully, but I will not be asking for a route, only
that heading north out of Topeka you get out of the state.' The district court sustained the
objection.
"84. During the balance of the trial, the respondent put on no evidence to
establish that Chandler drove through Nebraska to return to Colorado.
"85. Later, during the respondent's rebuttal closing argument, the respondent
made an additional reference to the Nebraska exit theory, 'What these two gas cans [do]
match up with is it gives her enough fuel to get from Denver to Topeka to do the killing
and get out of the state. That's the significance of the gas cans. Otherwise her 27-mile-
per-gallon can't be done.'
"Internet Searches
"86. During the investigation into the murders, computers associated with
Chandler were seized and turned over to the Kansas Bureau of Investigation for
examination. Kansas Bureau of Investigation Agent John Kite examined the computers
and prepared reports regarding his findings. In addition, an additional investigator, Mark
Johnson, examined the computers associated with Chandler.
"87. In her opening statement, the respondent told the jury that Agent Kite
would testify that Chandler 'accessed articles on CJ Online that dealt with how to defend
against murder charges and articles that dealt with sentencing in murder charges.'
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"88. During her direct-examination of Agent Kite during Chandler's jury trial,
the respondent asked Agent Kite several questions about Internet searches conducted on
the computers associated with Chandler. During the examination, the following exchange
occurred:
'Q. Did you find anything related to viewing articles on CJ Online or the
Topeka Capital-journal [sic]?
'A. Yes. I found HTML fragments that produced search results for CJ Online
that had related articles about the homicide and the investigations into them.
'Q. And then at the one-year anniversary, did you also find a search regarding
these homicides and the investigation into them?
'MR. BENNETT: Just for clarification, anniversary of what?
'MS. SPRADLING: [M.S.] and [K.H.]'s murder.
....
'Q. Did you find the anniversary of the double homicides that there had been
another search regarding or looking into CJ Online about the homicides?
'A. The HTML fragments I found that related to that produced a story which
was the one-year anniversary story by Tim Hrenchir.'
The respondent did not question Agent Kite whether Chandler searched the Internet for
articles about how to defend against murder charges or articles about sentencing in
murder charges. Further, during cross-examination, Agent Kite indicated that in his
examination of Chandler's computers, he did not find anything 'that was significant to
[him] that occurred prior to July 7, 2002.' The respondent did not call Mark Johnson to
testify regarding his examination of Chandler's computers. The respondent put on no
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other evidence regarding Chandler's Internet searches or Chandler's access to online
articles regarding how to defend against murder charges or about sentencing in murder
cases.
"89. During the disciplinary investigation, the respondent made a sworn
statement. During that sworn statement, the respondent testified that Chandler conducted
the Internet searches that the respondent referenced in her opening statement and closing
argument. She testified during the disciplinary hearing that Agent Kite told her during
trial preparation that Chandler made those searches. She indicated that she did not recall
the questions that she asked Agent Kite during the jury trial but she testified that she
intended to ask him about Internet searches and articles accessed relating to murder
charges.
"90. On September 19, 2019, as part of the disciplinary investigation, Agent
Kite gave a deposition. During the deposition, Agent Kite specifically denied ever finding
evidence that Chandler accessed articles regarding how to get away with murder, how to
defend against murder charges, or sentencing in murder cases. Furthermore, Agent Kite
denied ever conveying such information to the respondent during a pretrial meeting. At
the disciplinary hearing, Agent Kite again testified that he did not find evidence that
Chandler conducted Internet searches about how to defend against murder charges or
sentencing in murder cases.
"91. Because of the conflict in testimony, the hearing panel must weigh the
credibility of the witnesses in light of all the evidence presented. The respondent did not
pose any questions to Agent Kite designed to elicit testimony to establish that Chandler
conducted Internet searches on how to defend against murder charges or on sentencing in
murder cases. Further, Agent Kite's reports do not contain any conclusions that Chandler
conducted Internet searches on how to defend against murder charges or sentencing in
murder cases. Because other evidence corroborates Agent Kite's testimony, because
Agent Kite has no reason to fabricate, because the respondent did not ask Agent Kite any
questions designed to elicit the information, because the respondent has expressed that
she does not recall a number of facts in this case, because the respondent has now
18
admitted that other statements she made previously were incorrect, and because the
respondent misstated evidence, the hearing panel accepts Agent Kite's testimony and
rejects the respondent's testimony in this regard.
"Chandler Thinks She is Smarter
"92. During the murder trial, the respondent called Chandler's former employer,
J.M. to testify. During his testimony, J.M. testified that Chandler's intelligence was
'probably above average.' The respondent did not present any additional evidence
regarding Chandler's intelligence. Chandler, 307 Kan. at 688.
"93. During closing argument, the respondent said, 'she's smart, she's got high
intelligence and she thought she was smarter than the police department and she thought
she was smarter than the jurors and it's not true, . . . And we have you. She's not smarter
than the cops, [and] she's not smarter than you.'
"Reference to S.R. in Gallery
"94. Shortly before the parties made closing arguments in Chandler's jury trial,
the district court admonished the parties to refrain from asking members of the gallery to
stand up during the closing arguments. The admonition was aimed at the respondent
based on an experience in a previous case. The district court also stated, 'Do not do that in
this case. I don't want references to folks here at all.'
"95. Despite the district court's clear order, during her closing argument in the
Chandler jury trial, the respondent referred to S.R. and pointed out that S.R. was giving
the respondent 'a look.' Specifically, the respondent stated, '[t]hat's the defendant and her
close friend [S.R.] that I'm getting a look from talking about what a great day it was
because [P.W.] was dead and can't put the defendant in Kansas.'
"96. At the oral argument, the following exchange occurred between the
respondent and Justice Rosen:
19
'JUSTICE ROSEN: Well, I'll jump in with what I think is misconduct, and that's
right off the bat you were warned not to refer or to have anybody in the gallery
stand up, . . .
'MS. SPRADLING: Yes, sir.
'JUSTICE ROSEN: And then there was "I don't want you to do that in this case.
I don't want references to folks here at all." And then during your closing
argument you do exactly what the trial Court emphatically told you not to do. . . .
....
'MS. SPRADLING: And, actually, let me disagree with you, please. . . . There
was no one who stood up in the Chandler case. I didn't request anyone to stand
up in the Chandler [case].
'JUSTICE ROSEN: Any reference to, you said "I'm getting a look." . . . and
you're referring to the defendant's sister, I believe.
....
'JUSTICE ROSEN: You're referring to someone in the gallery, and the Court
told you not to do that.
'MS. SPRADLING: Let me disagree with the analogy, if I could, please. I do not
think that saying that the defendant's sister who was mean mugging the State is
akin to asking half of the gallery to stand up during closing argument. So I
respectfully disagree that I did the same thing that the Court asked me not to.'
"97. At the disciplinary hearing, the respondent generally acknowledged that
she violated the district court's order by pointing out S.R. in the gallery when she testified
as follows:
20
'I admit today it was wrong. I didn't at the time believe that I was violating the
Court's order. My understanding of the Court's motion in limine, or pretrial order,
was that I was to not have anybody stand. I still had that belief at oral argument.
But I shouldn't have commented on it. You just take those looks and go on would
have been the better approach.'
"Robbing the Children of Their Father
"98. In the rebuttal portion of her closing argument, the respondent argued,
'[n]ow the State, just like the defense, would also like to implore you not to convict an
innocent person. That would be horrible. Don't convict an innocent person. Instead,
convict her because she killed [M.S.], she killed [K.H.], and she robbed her own children
of their father and his fiancé [sic]. . . .[']
"99. During the respondent's sworn statement, the respondent disagreed with the
Supreme Court and testified that her statement was factual—by killing M.S. and K.H.,
Chandler robbed her children of their father.
"100. At the disciplinary hearing, the respondent simply stated that the statement
was made in the 'heat of the moment.'
"Prosecution of Jacob Ewing
"101. In 2016, the Jackson County Attorney filed six criminal cases against Jacob
Ewing, charging him with committing numerous sex crimes against several individuals.
The county retained the respondent as a special prosecutor to handle the prosecution of
the criminal cases against Ewing.
"102. On February 14, 2017, the respondent filed a motion to consolidate two of
the six cases for trial, cases numbered 2016-CR-195 and 2016-CR-203. Those cases
involved J.M. and M.W. The district court granted the respondent's motion and scheduled
a jury trial.
21
"103. On June 26, 2017, a five-day jury trial commenced. The jury found Ewing
guilty of two counts of rape, four counts of aggravated criminal sodomy, two counts of
battery, one count of possession of drug paraphernalia, one count of hosting minors
consuming alcohol, and one count of furnishing cereal malt beverages to a minor.
"104. Ewing appealed his convictions to the Court of Appeals, arguing, among
other issues, that the respondent committed prosecutorial error during her closing
argument.
"Touch DNA
"105. During her closing argument, the respondent stated:
'Now, [J.M.] told everyone, and there's no contradiction to this, that when she
went to bed in the defendant's bed she was fully clothed. Why is that important?
It's important because of the defendant's DNA around the waistband of [J.M.'s]
panties. You cannot get the defendant's DNA there unless [J.M.] was unclothed.
She went to bed in panties and sweats. Unless the sweats are taken off, she would
not have the defendant's DNA there. And the only reason that [J.M.'s] panties
were exposed was because the defendant took her pants off.'
The respondent informed the jury that Ewing's DNA could not—as a certainty—be on
J.M.'s underwear waistband unless her sweat pants had been removed by Ewing. The
respondent's argument is not supported by the evidence at trial. First, J.M. testified that
she did not remember whether she had changed clothes in Ewing's bathroom or his
bedroom and she did not remember whether she laid the sweat pants on Ewing's bed
before changing into them. Further, Rachel White, a forensic scientist with the Kansas
Bureau of Investigation, testified that touch DNA occurs when 'an individual has simply
touched an item and left behind some of their skin cells just in the process of touching
that item.' Further, White testified that touch DNA could transfer from bed sheets to
underwear by simply laying down on bed sheets.
22
"Low-Functioning Young Woman
"106. The respondent asserted that a witness was low functioning and also
asserted that Ewing liked to 'watch autism abuse pornography.'
"107. At the disciplinary hearing, the respondent testified that the jury observed
the witness' testimony and it was clear from how she presented that the witness was low-
functioning.
"108. Additionally, Shawna Miller, the Jackson County Attorney testified at the
respondent's disciplinary hearing regarding whether the witness was low functioning.
Specifically, Ms. Miller testified regarding her experience with the witness during
Ewing's preliminary hearing, as follows:
'A. One thing[]that sticks out to me is I conducted the preliminary hearing and I
questioned her on the stand, and, 'um, one thing in particular is right when I
got to kind of the very, very difficult part of her testimony where we had to
start talking about penetration, she kind of froze and seemed to just not
respond for—it was probably only a few seconds, but it seemed like a long
time.
'And at some point later there was discussion that—I think it was on her
cross-examination by defense she explained that she had disassociated. That
was kind of her way of coping with trauma and she had done that because
she was being asked to remember something that was extremely traumatic
for her. So that was one of the reasons that they brought that up.
'Another thing that I would just note in dealing with her is that, 'um, I almost
had to examine her like I would examine a young child. Had to use very
simple terms. She was very easily confused by the questions. We had to ask
very simple questions. It's kind of hard to articulate other than to say that I
had to ask her questions like I would a very young child on the stand, not
somebody who was in her early twenties, late teens.
23
'Q. And does she have a fidgeting issue?
'A. She does, yeah, 'um . . .
'Q. Is it—is it one of those that—the Supreme Court Justice Hand, [sic]
"pornography, you know it when you see it," but is it one of those that when
you see it you realize there's some mental issues going on there? Just—
'A. Yeah.
'Q. Yeah. And—
'A. It's pretty evident.
'Q. And can you just describe it a little bit, because one of the issues we have is
not making the record—
'A. Right.
'Q. —so I apologize, and I hope JM isn't—doesn't need to be embarrassed about
any of this, but we—we've got to put it in this record so we've got it, so . . .
'A. It would just go back to, you know, she was very childlike, and just having
to ask her questions as you would a young child. Very simple words. Simple
questions. Breakdown your questions into very simple, small answers. You
could tell that she—you could tell that she was very traumatized obviously
with the disassociation that I described. She acted as a young child would on
the stand. You mentioned fidgeting, just kind of keeping her attention,
keeping her focused was a little bit of a challenge, too.'
Miller's testimony, however, was not evidence that was presented to the jury in the
underlying jury trial.
24
"Victimized on Social Media and Looking for Attention
"109. In her closing argument, the respondent argued:
'. . . [t]he delay in the reporting is in part because of what we saw in this
courtroom, because women who have been sexually assaulted do not want to be
cross-examined on it. They do not want to tell well-intending but still strange
people to them about a sexual experience. They do not want to be victimized on
social media by the defendant's friends or family. They do not want to have the
embarrassment, the humiliation that these young women have had to know.'
"110. The respondent also argued:
'. . . Are these gals looking for attention? The only attention they've got in this
case is negative attention. [They] both were described as passive, shy. They're
not looking for attention. There's pictures of [J.M.'s] vagina put into evidence.
Anybody want that attention? Dr. Allison talked to you about women do not
report because they don't want the attention. This is a scarlet letter, is what this
case is about, and the scarlet letter is simply this, that these three women have
been branded. In the public and social media they've been branded, and nobody
seeks out that type of attention. The ugliness that has been directed towards these
women can be taken into consideration for you when you decide whether or not
you believe their testimony.'
"111. There was no evidence presented at trial that M.W. or J.M. were victimized
on social media by Ewing's friends or family. Further, during the testimony of the Chief
Detective of the Jackson County Sheriff's Office, the district court sustained an objection
to the respondent's question about contact between M.W. and Ewing's family. The district
court ruled that Ewing's family's behavior toward M.W. was irrelevant to the material
issues at trial.
25
"If There was Sex It was Nonconsensual
"112. During closing argument, the respondent also stated that 'in [M.W.'s] case
the defendant acknowledges that they had sex. It's different from [J.M.'s], but in [M.W.'s]
case the defendant is saying it was consensual. So with [J.M.] you have to decide whether
they had sex or not. If they did, it could not have been consensual.'
"113. The respondent's statement boils down to if the jury concluded that Ewing
and J.M. had sexual contact, then the sexual contact was nonconsensual. While Ewing
did not assert consent as a defense, he maintained that he could not recall the events of
the night in question.
"Watching Pornography on Mobile Phone and Autism Abuse
"114. During the final moments of the respondent's initial closing argument, the
respondent reminded the jury that Ewing's mobile phone had been seized and examined.
The respondent then stated, '[n]ow, folks, while the defense is telling you that the
defendant did not watch those videos[,] know this, the evidence shows differently.'
"115. Agent Malick testified before the jury that he could not say with any
certainty 'what section of the video was watch[ed] or was not watched.' Also, Agent
Malick testified that the data from the mobile phone suggested that only portions of the
videos were watched and the data from the mobile phone did not support a conclusion
that Ewing watched the videos in their entirety in one sitting.
"116. During the rebuttal portion of her closing argument, the respondent stated,
'now, the defense says this is all smoke. It's not smoke, it's evidence of an attitude of
what—of how you treat women. . . . Autism abuse, yes, he does.'
"117. In August 2018, after Ewing filed his brief, but while his appeal was still
pending, Ewing's mother, W.E., filed a disciplinary complaint against the respondent.
26
"118. The Court of Appeals reversed Ewing's convictions. The Court of Appeals
based the reversal on cumulative error. The Court of Appeals concluded that the district
court's erred in admitting State's Exhibit 66 (a DVD containing a compilation of
pornographic videos) into evidence. In addition, the Court of Appeals concluded that the
respondent engaged in prosecutorial error (not misconduct), that the respondent failed to
show that the cumulative error was harmless beyond a reasonable doubt, and that Ewing
was denied a fair trial. The Court of Appeals remanded the cases for a new trial. The
Supreme Court denied the State's petition for review.
"Conclusions of Law
"119. Based on the above findings of fact, the hearing panel concludes as a
matter of law that the respondent violated Kansas Rules of Professional Conduct 1.1
(competence), 3.1 (meritorious claims and contentions), 3.3 (candor to the tribunal), 3.4
(fairness to opposing party and counsel), 8.1 (disciplinary matters), and 8.4 (professional
misconduct), as detailed below.
"Prosecution of Dana Chandler
"Protection from Abuse Order
"120. In the K.S.A. 60-455 motion filed pretrial, the respondent sought
permission to offer evidence of the motion for immediate restraining order filed in
October, 1998. In the K.S.A. 60-455 motion, the respondent did not seek permission to
admit evidence of an order restraining Chandler from contacting M.S.
"121. Because the respondent accurately described the evidence in the K.S.A. 60-
455 motion, because in that motion the respondent did not seek to introduce evidence of
an order restraining Chandler, and because the respondent never saw the order, the
hearing panel concludes that, when the respondent filed the motion to admit K.S.A. 60-
455 evidence, the respondent knew that she had no evidence to establish that the district
court granted M.S.'s motion for an immediate restraining order.
27
"122. Again, in her opening statement, the respondent accurately acknowledged
that M.S. filed a motion for an immediate restraining order in October, 1998. Because the
respondent accurately described the evidence regarding M.S.'s 1998 motion for an
immediate restraining order in her opening statement, the hearing panel concludes that
the respondent knew, at the outset of the trial, just as she knew when she filed the K.S.A.
60-455 motion, she had no evidence that the district court granted M.S.'s motion for an
immediate restraining order.
"123. Despite that knowledge, during her redirect-examination of Sergeant Volle
during Chandler's jury trial, the respondent asked him whether M.S. had a protection
from abuse order in place against Chandler. While Sergeant Volle testified that M.S. did
have a protection from abuse order protecting him from Chandler on redirect-
examination, he later recanted that testimony and indicated that he could not recall
whether it was a request for an order or an actual order.
"124. At the conclusion of Sergeant Volle's trial testimony, there was no
evidence presented on which the respondent could rely to argue that M.S. obtained any
type of order restraining Chandler and that Chandler violated such an order. Further,
during the balance of the jury trial, the respondent presented no other evidence regarding
the existence of any type of restraining order.
"125. Relying on Sergeant Volle's redirect trial testimony—in separate
proceedings including (a) her closing argument before the jury, (b) in the State's initial
appellate brief, (c) during oral argument before the Supreme Court, (d) in her written
response to the disciplinary complaint, and (e) in her sworn statement made during the
disciplinary investigation—the respondent falsely asserted that M.S. had a protection
from abuse order in place at the time M.S. and K.H. were murdered.
"126. The Supreme Court concluded that the respondent's false statement in
closing argument that M.S. had a protection from abuse order in place at the time of the
murders was prosecutorial misconduct. Determining whether a prosecutor committed
error or misconduct involves a different analysis than determining whether a prosecutor
violated the Kansas Rules of Professional Conduct. However, a review of the law in this
area is helpful.
28
"127. In State v. Sherman, 305 Kan. 88 (2016), the Supreme Court modified the
analysis employed when considering prosecutorial error and prosecutorial misconduct.
The Supreme Court articulated a two-step analysis when evaluating claims of reversible
prosecutorial error.
'Appellate courts will continue to employ a two-step process to evaluate claims of
prosecutorial error. These two steps can and should be simply described as error
and prejudice. To determine whether prosecutorial error has occurred, the
appellate court must decide whether the prosecutorial acts complained of fall
outside the wide latitude afforded prosecutors to conduct the State's case and
attempt to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial. If error is found, the appellate court must next
determine whether the error prejudiced the defendant's due process rights to a fair
trial.' Id. at 109.
If there is no reasonable possibility that the error contributed to the guilty verdict, then
the error is harmless. The Supreme Court defined prosecutorial misconduct as
prosecutorial error done with a level of culpability exceeding mere negligence. Id. at 114.
"128. The distinction between prosecutorial error and prosecutorial misconduct
as well as the impact of the conduct on the verdict are crucial when deciding whether a
criminal case will be upheld or reversed. Those considerations are, likewise, relevant
when considering whether the same conduct amounts to professional misconduct under
the Kansas Rules of Professional Conduct. When a prosecutor commits error or engages
in misconduct, whether the prosecutor acted negligently, with knowledge, or intentionally
is an important consideration.
"129. Generally, the respondent defended this allegation by asserting that she
made a mistake. To that end, the respondent put forth a number of arguments in an
attempt to establish that her false statements were not made knowingly or intentionally.
"130. First, the respondent asserted that she did not recall Sergeant Volle's
testimony on recross-examination. Competent representation of the State required the
29
respondent to be familiar with all the evidence presented to the jury, including the
evidence elicited during the examination by opposing counsel.
"131. Second, the respondent argued that she knew an order existed because
unnamed family members of the victims told her and Sergeant Volle so. The respondent's
position appeared to be that because she believed that the order existed, she had a
reasonable basis for arguing that a restraining order was in effect to the jury. The
respondent's belief, even a sincere belief, is not a replacement for evidence in any case
and that is particularly true in a murder trial. The hearing panel is troubled by the
respondent's failure to understand that her belief was an insufficient basis for her
argument that a restraining order was in place at the time of the murders and that
Chandler violated the order.
"132. Third, at oral argument in Chandler's appeal and to some extent during the
disciplinary hearing, the respondent argued that while there was no protection from abuse
order in place at the time of the murders, there was a restraining order in place and the
terms protection from abuse order, restraining order, protective order, etc., are
interchangeable.
"133. Protection from abuse orders, protection from stalking orders, restraining
orders, protective orders, bond provisions, probation provisions, and temporary orders in
divorce cases are all governed by separate statutory provisions, are obtained in different
ways, and are available in different circumstances. Finally, each type of restrictive order
carries with it a different implication. For example, in divorce cases, it is standard to
obtain an initial ex parte order restricting each party from bothering the other. That type
of order was issued in M.S. and Chandler's divorce case and continued in effect until the
divorce was granted on March 5, 1998. On the other hand, a protection from abuse order
can be issued only if a district court determines that a petitioning party has satisfied the
statutory requirements of K.S.A. 60-3101, et seq.
"134. In support of her argument, the respondent elicited testimony from other
witnesses who agreed that the terms are interchangeable. The respondent's argument in
this regard is fallacious—just because others also believe it is proper to use 'PFA' to
describe a variety of different types of restrictive orders does not make it proper to do so.
30
"135. The hearing panel concludes that regardless of whether prosecutors
generally use the term 'PFA' interchangeably with other terms, the respondent's
statements in her closing argument of Chandler's jury trial, during the oral argument, and
in the disciplinary investigation that a protection from abuse order was in place at the
time of the murders and that Chandler violated the order was improper. The respondent
should not have argued that there was any type of order in place without seeing or
presenting the order.
"136. Next, the respondent testified that it was not her practice to introduce
restraining orders into evidence. The respondent's testimony is, at best, disingenuous.
a. In the K.S.A. 60-455 motion, the respondent specifically sought permission
to admit evidence that M.S. and Chandler's daughter obtained a protection from
abuse order against Chandler.
b. And, in her questioning of Sergeant Volle at trial, the respondent
specifically asked, on redirect examination, whether M.S. obtained a protection
from abuse order against Chandler.
c. Likewise, during closing argument, the respondent did not argue only
Chandler's conduct which served as the basis for M.S.'s motion for an immediate
restraining order, the respondent also argued that M.S. obtained a protection from
abuse order and the order did not stop Chandler.
It is because the respondent offered evidence and argument about a protection from abuse
order that this discussion is necessary.
"137. In addition to the false statement made to the jury and to the Supreme
Court, during the respondent's sworn statement made during the disciplinary
investigation, she also made false statements.
31
"138. During the disciplinary hearing, the respondent admitted that her sworn
statement included misstatements. The hearing panel appreciates the respondent's
admission on cross-examination that her sworn statement includes misstatements.
However, the respondent's testimony that during the sworn statement she 'misspoke,' that
she 'was wrong,' and that her 'mistake was not asking to look at the file' ring hollow when
considering that the statement was made under oath, during a disciplinary investigation,
and only two months after the Supreme Court overturned Chandler's two premeditated
murder convictions based on the respondent's misconduct.
"139. Further, the record is void of any evidence that the respondent took steps to
correct the respondent's untrue statements made during the sworn statement. Importantly,
after the sworn statement was reduced to writing, the respondent reviewed the sworn
statement and offered an errata sheet of corrections.
"140. The hearing panel concludes that the respondent took an oath to tell the
truth when she gave the sworn statement and she failed to do so and that occurred in a
disciplinary investigation.
"KRPC 1.1
"141. Lawyers must provide competent representation to their clients. KRPC 1.1.
'Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.' Id. The hearing panel recognizes
the respondent's extensive preparation for the murder trial. The respondent, however,
admitted before the Supreme Court during oral argument and at the disciplinary hearing
that she did not recall Sergeant Volle's testimony on recross-examination. The hearing
panel concludes that the respondent violated KRPC 1.1 by not noting that Sergeant Volle
changed his testimony. The respondent's failure to thoroughly note the change in
testimony led to the respondent improperly relying on Sergeant Volle's redirect-
examination in closing argument. Accordingly, the hearing panel concludes that the
respondent violated KRPC 1.1.
32
"KRPC 3.3(a)(1)
"142. 'A lawyer shall not knowingly make a false statement of fact or law to a
tribunal or fail to correct a false statement of material fact or law previously made to the
tribunal by the lawyer.' KRPC 3.3(a)(1). In Kansas, '[a] matter is material if it is one to
which a reasonable man would attach importance in determining his choice of action in
the transaction in question.' Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d
198 (1973).
"143. The respondent violated this rule in three separate ways.
a. First, the respondent intentionally made a false statement of material fact to
the district court when she argued to the jury during closing arguments that M.S.
sought and obtained a protection from abuse order and that Chandler violated the
protection from abuse order. The respondent exacerbated the misconduct by
intentionally including false information in the slides that she displayed during
closing argument. Specifically, the respondent's slide falsely stated: 'How Else
Do We Know the Defendant is Guilty [M.S.] GOT A PROTECTION FROM
ABUSE COURT ORDER KEEPING DEFENDANT AWAY FROM HIM IN
1998' and 'How Else Do We Know the Defendant is Guilty THE PFA DID NOT
STOP DEFENDANT . . .'
b. Second, on appeal, the respondent likewise made a false statement of
material fact to the Supreme Court when she made similar statements in the
State's initial brief.
c. Finally, the respondent made a false statement to the Supreme Court during
oral argument when she falsely argued that evidence was introduced at trial to
support her claim that a restraining order was in effect at the time of the murders.
The hearing panel concludes that the respondent intentionally made the false statements
of material fact to the district court and Supreme Court, in violation of KRPC 3.3(a)(1).
33
"KRPC 3.4(e)
"144. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.' KRPC 3.4(e). In her oral closing statement and the
slide show that accompanied it, the respondent argued that M.S. obtained a protection
from abuse order and Chandler violated that order. The only evidence that the respondent
sought permission to introduce regarding this came in the form of Sergeant Volle's
testimony. On recross-examination, Sergeant Volle effectively recanted his statement that
an order had been issued when he stated in response to a question by defense counsel that
he could not recall whether an order was issued or whether only an application for an
order was made. Because the respondent's argument that a restraining order existed at the
time of the murders and that Chandler violated the restraining order was not based on any
evidence admitted before the jury, the hearing panel concludes that the respondent
violated KRPC 3.4(e).
"KRPC 8.1
"145. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(a)
provides that 'a lawyer in connection with a . . . disciplinary matter, shall not knowingly
make a false statement of material fact.' The respondent violated KRPC 8.1 in two ways.
"146. First, in the respondent's written response to the initial complaint, the
respondent stated that Sergeant Volle 'testified under oath that [M.S.] had received a
protection from abuse order against the defendant in October of 1998.' However,
Sergeant Volle backtracked on his statement elicited during redirect-examination when
opposing counsel asked him, on recross-examination, specifically whether an order had
been issued or just that a motion had been filed and Sergeant Volle testified that he could
not recall. Further, it is undisputed that M.S. never petitioned for nor obtained a
protection from abuse order restricting Chandler.
"147. In the respondent's sworn statement, she made similar statements about the
existence of a protection from abuse order and that the order remained in effect at the
time of the murders. The respondent's violation of this rule is particularly egregious in
light of the timing of the sworn statement. Just months prior to the sworn statement, the
34
Supreme Court concluded that the respondent engaged in prosecutorial misconduct and
reversed Chandler's two convictions of premeditated murder based on that misconduct.
"148. The hearing panel concludes that the respondent intentionally made false
statements of material fact in the disciplinary investigation in violation of KRPC 8.1(a).
"KRPC 8.4(c)
"149. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent
engaged in conduct that involved dishonesty when she argued before the jury that M.S.
sought and obtained a protection from abuse order and that Chandler violated the
protection from abuse order. The respondent repeated that dishonest conduct when she
included similar statements in the State's initial appellate brief, during oral argument, in
her written response to the initial complaint in the disciplinary investigation, and during
the sworn statement. As such, the hearing panel concludes that the respondent violated
KRPC 8.4(c).
"KRPC 8.4(d)
"150. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). The Supreme Court concluded
that the respondent's statement in closing argument that M.S. obtained a protection from
abuse order and that Chandler violated the protection from abuse order was prosecutorial
misconduct in that it was error 'done with a level of culpability exceeding mere
negligence.' Further, in reversing Chandler's murder convictions, the Supreme Court
concluded that the respondent's misconduct prejudiced Chandler's right to a fair trial
because there was a reasonable possibility that the error contributed to the guilty verdict.
Because the respondent's misconduct prejudiced Chandler's right to a fair trial, the
hearing panel concludes that the respondent violated KRPC 8.4(d).
35
"Five Minute Phone Call
"151. Only M.S. and Chandler—and anyone they told—would know what was
said during the five-minute phone call. M.S. is not available to testify, Chandler opted not
to testify, which was her Constitutional right, and there appears to be no evidence that
either M.S. or Chandler told anyone else what was discussed during that telephone call.
As a result, during the jury trial, the respondent did not and could not present any
evidence as to the substance of the conversation.
"152. Even though the respondent did not have any evidence as to what was
discussed during the five-minute phone call, in her opening statement the respondent
asserted that during that call M.S. told Chandler that he was engaged to K.H. and implied
that because the call occurred two days before the murders and because M.S. feared
Chandler's reaction to his engagement, the call was the motivation for the murders.
"153. The evidence that the respondent introduced at trial directly contradicted
that statement. The respondent introduced evidence, through T.S., that M.S. told
Chandler four to six weeks before the murders that he was going to marry K.H. during
the 'breezeway' conversation.
"154. Again, in closing argument, without any evidence to support the argument,
the respondent asserted that during the five-minute phone call, M.S. told Chandler that he
was engaged to marry K.H. and the respondent implied that news of the engagement
prompted Chandler to travel to Kansas and murder M.S. and K.H. two days later.
"155. During oral argument, the respondent told the Supreme Court that 'We
know exactly what happened during that phone call.' The respondent went on to explain
that the testimony of T.S. establishes that M.S. told Chandler during the five-minute
phone call that he was engaged [to] marry K.H. The respondent's arguments to the
Supreme Court misstate the evidence presented to the jury. T.S.'s testimony centered
around the 'breezeway' conversation which occurred four to six weeks prior to the
murders.
36
"156. The hearing panel finds, as the Supreme Court concluded, that there was no
evidence presented at Chandler's jury trial regarding the substance of the conversation
that occurred during the five-minute phone call between M.S. and Chandler on July 5,
2002. Likewise, the hearing panel concludes that it was improper for the respondent to
argue that Chandler learned of the engagement in the five-minute phone call and then
imply that the news of the engagement prompted Chandler to travel to Kansas and
murder M.S. and K.H. two days later.
"KRPC 3.1
"157. 'A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous.' KRPC 3.1. The
hearing panel concludes that the respondent violated KRPC 3.1 before the district court
and the Supreme Court. First, the respondent's assertions in her opening statement and in
her closing argument that Chandler learned of M.S.'s plans to marry K.H. during the five-
minute phone call and the respondent's implication that that knowledge prompted
Chandler to travel to Topeka and kill M.S. and K.H., are not based on any evidence and
are therefore frivolous. Also, the respondent also violated KRPC 3.1 during the oral
argument before the Supreme Court. There, the respondent stated, '[w]e know exactly
what happened during that phone call.' There is no basis for the respondent's statement to
the Supreme Court. The respondent's belief in a theory of the case is not evidence.
Because the respondent knew that she did not have a basis for making the assertions, the
hearing panel concludes that the respondent intentionally violated KRPC 3.1 during the
opening statement and closing argument of the jury trial and during the oral argument
before the Supreme Court.
"KRPC 3.4(e)
"158. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). The respondent's assertion that
Chandler learned of M.S. and K.H.'s plans to marry during the five-minute phone call and
the implication that that knowledge prompted Chandler to travel to Topeka and kill M.S.
and K.H. in the respondent's opening statement and closing argument, were not supported
by admissible evidence. Accordingly, the hearing panel concludes that the respondent
37
violated KRPC 3.4(e) when she made assertions in her opening statement and closing
argument that were not supported by admissible evidence.
"KRPC 8.4(d)
"159. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.' The respondent
engaged in conduct that was prejudicial to the administration of justice when she asserted
during her opening statement and closing argument, without any evidence, that Chandler
learned that M.S. and K.H. planned to marry during the five-minute phone call. She then
implied that that knowledge prompted Chandler to travel to Topeka and kill M.S. and
K.H. two days later without any evidence. The respondent's unsupported statements made
it appear to the jury that this part of the prosecution's theory of the case was supported by
evidence when it was not. As such, the hearing panel concludes that the respondent
violated KRPC 8.4(d).
"Escape Route Through Nebraska
"160. The respondent's assertion in her opening statement that Chandler's actual
route after the murders took her through Nebraska was not based on any evidence.
Rather, the respondent's statement was based on a theory of the case that the respondent
discussed with Sergeant Volle pretrial. While the respondent believed Sergeant Volle's
theory on this issue to be true, the respondent lacked any evidence to prove the theory.
The hearing panel concludes that the respondent's statement during her opening statement
was improper because she had no evidence, only a theory, that Chandler 'drove directly
up to Nebraska. . . .'
"161. Likewise, the hearing panel finds that the respondent's assertion in her
closing argument during Chandler's jury trial that Chandler sought to 'get out of the state'
after the murders lacked evidentiary support. The statement was improper and violated
the district court's ruling sustaining defense counsel's previous objection.
"162. The hearing panel concludes that at the time of the trial, the respondent
knew she did not have any admissible evidence of the Nebraska exit theory.
38
"KRPC 3.4(e)
"163. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). The respondent's statements in
opening and arguments in closing regarding the Nebraska exit theory were not supported
by evidence admitted at trial. Because the respondent made statements not supported by
admissible evidence, the hearing panel concludes that the respondent, again, intentionally
violated KRPC 3.4(e).
"KRPC 8.4(d)
"164. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when she made statements
during her opening statement and her closing argument that Chandler traveled through
Nebraska after killing M.S. and K.H. without evidence of such. The respondent's
unsupported statements made it appear to the jury that this 'theory' was supported by
evidence when it was not. As such, the hearing panel concludes that the respondent
violated KRPC 8.4(d).
"Internet Searches
"165. When the respondent stated during opening statements that Agent Kite
would testify that Chandler 'accessed articles on CJ Online that dealt with how to defend
against murder charges and articles that dealt with sentencing in murder charges,' the
respondent knew that she had no evidence to support the statement.
"166. Agent Kite's reports contained no references to Internet searches about how
to defend against murder charges or sentencing in murder cases. Agent Kite did not tell
the respondent that Chandler conducted such searches.
"167. The hearing panel concludes that the respondent did not have a good faith
basis to state during opening statements that Chandler accessed articles and searched the
39
Internet looking for articles about defending against murder charges and sentencing in
murder cases.
"168. The hearing panel is particularly troubled by this statement in light of the
fact that the respondent did not ask Agent Kite any questions during his trial testimony
about Chandler accessing articles and conducting Internet searches about how to defend
against murder charges and articles addressing sentencing in murder cases.
"KRPC 3.4(e)
"169. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). The respondent's statements in her
opening statement, that Agent Kite would testify that Chandler searched the Internet on
how to defend against murder charges and on sentencing in murder charges, was not
supported by admissible evidence. Because the respondent's statement in her opening
statement were not supported by admissible evidence, the hearing panel concludes that
the respondent, again, violated KRPC 3.4(e).
"KRPC 8.4(d)
"170. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when she stated, in her
opening statement, that Agent Kite would testify that Chandler conducted Internet
searches on how to defend against murder charges and sentencing in murder charges was
not supported by any evidence before the jury. Accordingly, the hearing panel concludes
that the respondent engaged in conduct prejudicial to the administration of justice, in
violation of KRPC 8.4(d).
"Chandler Thinks She is Smarter
"171. Chandler's former employer's testimony that Chandler had 'probably above
average' intelligence provided insufficient evidence to support the respondent's argument
that Chandler thought that she was smarter than the police and smarter than the jury. The
40
respondent had no evidence to support the statements that Chandler thought that she was
smarter than the police and smarter than the jury. Further, the comments were designed to
inflame the jury. Through those comments, the respondent suggested that the jury should
be personally affronted by the 'thoughts' the respondent attributed to Chandler.
"172. The hearing panel finds that the respondent's comments that Chandler
thought that she was smarter than the police and smarter than the jury were not based on
the evidence. Moreover, the hearing panel concludes that the statements were improper
and constitute violations of the Kansas Rules of Professional Conduct.
"KRPC 3.4(e)
"173. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In closing, the respondent's argument
that Chandler had 'high intelligence,' that Chandler thought that she was smarter than the
police, and that Chandler thought that she was smarter than the jury was not based on
sufficient evidence admitted before the jury. Because the respondent's statement in her
closing argument was not supported by sufficient admissible evidence, the hearing panel
concludes that the respondent, again, violated KRPC 3.4(e).
"KRPC 8.4(d)
"174. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when she argued that
Chandler thought that she was smarter than the police and smarter than the jury. The
respondent's purpose in making this statement was to inflame the jury—to cause the jury
members to be personally affronted by Chandler's thoughts. The hearing panel concludes
that the respondent's closing commentary about Chandler's thoughts was prejudicial to
the administration of justice, in violation of KRPC 8.4(d).
41
"Reference to S.R. in Gallery
"175. The respondent violated the district court's clear order prohibiting
references to members of the gallery during closing argument.
"176. The respondent's violation of the district court's order was compounded at
oral argument when the respondent argued that because she did not ask anyone in the
gallery to stand up, she did not violate the order. The respondent failed to recognize that
the district court's order was not limited to asking individuals in the gallery to stand up, as
the district court also ordered, 'Do not do that in this case. I don't want references to folks
here at all.'
"177. While the respondent generally acknowledged that she violated the district
court's order during her testimony at the disciplinary hearing, the respondent's admission
was tempered, 'I admit today it was wrong. I didn't at the time believe that I was violating
the Court's order. My understanding of the Court's motion in limine, or pretrial order, was
that I was to not have anybody stand. I still had that belief at oral argument. But I
shouldn't have commented on it. You just take those looks and go on would have been
the better approach.'
"178. The respondent's reference to her understanding of the district court's
pretrial order is curious. The meaning of the district court's order is plain. The district
court ordered the parties to not refer to anyone in the gallery and the respondent referred
to a person in the gallery.
"KRPC 3.4(c)
"179. KRPC 3.4(c) provides that '[a] lawyer shall not . . . knowingly disobey an
obligation under the rules of a tribunal except for an open refusal based on an assertion
that no valid obligation exists.' The respondent knowingly disobeyed an order of the
district court when she stated during closing argument that she was 'getting a look from'
S.R. As such, the hearing panel concludes that the respondent violated KRPC 3.4(c).
42
"KRPC 8.4(d)
"180. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when she pointed out S.R. in
the gallery, in violation of the district court's order, during closing arguments. By
pointing out S.R. and stating that S.R. was giving the respondent a look, the respondent
attempted to apply additional weight to the recorded conversation between Chandler and
her sister. The hearing panel concludes that the respondent's conduct in her closing
argument was prejudicial to the administration of justice. As such, the hearing panel
concludes that the respondent violated KRPC 8.4(d).
"Robbing the Children of Their Father
"181. The respondent's statement that Chandler 'robbed her own children of their
father and his fiancé [sic]' is improper. It is well-settled law that it is improper for a
prosecutor in closing argument to comment on the impact the crime had on the victim's
family. Such comments are not relevant to prove the case, the comments divert the jury's
attention from deciding the case on the evidence, and the comments appeal to the jury's
sympathy for the victim's family. See State v. Holt, 300 Kan. 985, 992, 336 P.3d 312(2014) (improper for a prosecutor to comment during a murder trial that there is a 9-year-
old and a newborn without a father) and State v. Henry, 273 Kan. 608, 640-41, 44 P.3d
466 (2002) (improper for a prosecutor to urge the jury to think about how the murder
victim's mother must have felt on Mother's Day).
"182. The hearing panel is likewise troubled by the respondent's testimony at the
sworn statement given during the disciplinary investigation. There, the respondent
testified that because her statement that Chandler 'robbed her children of their father' was
factual, it was appropriate for closing argument. As an experienced prosecutor, the
respondent should be well aware of the law on this point.
43
"183. Finally, the respondent's testimony before the hearing panel also does not
establish that the respondent understands why this comment is misconduct. At the
disciplinary hearing, without acknowledging the wrongful nature of the statement, the
respondent implied that it was unplanned and resulted from the 'heat of the moment.'
"184. The hearing panel concludes that the respondent's statement that Chandler
robbed her own children of their father and his fiancé [sic], was not relevant to prove that
Chandler killed M.S. and K.H., was designed to divert the jury's attention from deciding
the case on the evidence, and appealed to the jury's sympathy for the victim's family.
"KRPC 1.1
"185. Lawyers must provide competent representation to their clients. KRPC 1.1.
'Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.' Id. It is well settled that
prosecutors may not comment on the impact of a crime on the crime victim or the crime
victim's family. The respondent's statement during closing argument that Chandler
robbed her children of their father and his fiancé [sic] was improper and evidenced a lack
of competence. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.1.
"KRPC 8.4(d)
"186. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).
The respondent engaged in conduct that was prejudicial to the administration of justice
when she argued to the jury the impact the crime had on the victim's family. The hearing
panel concludes that the respondent's statement in this regard was an attempt to elicit the
sympathy of the jury and divert the attention of the jury and was prejudicial to the
administration of justice, in violation of KRPC 8.4(d).
44
"Prosecution of Jacob Ewing
"Touch DNA
187. The hearing panel concludes that the respondent's argument to the jury, in
her closing argument, that the only way Ewing's DNA could be found on the waistband
of J.M.'s panties was if Ewing took off J.M.'s panties was contrary to the evidence.
Specifically, the respondent's argument was contrary to the evidence provided by the
respondent's expert, Rachel White. The hearing panel concludes that the respondent's
statement was improper.
"KRPC 3.4(e)
"188. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In the respondent's closing argument
in Ewing's jury trial, the respondent made several statements that were not supported by
the evidence. The respondent's statement that the only way Ewing's DNA could be found
on the waistband of J.M.'s panties was if Ewing took off J.M.'s panties was not supported
by the evidence. The hearing panel concludes that the respondent violated KRPC 3.4(e)
when she argued that the only way Ewing's DNA could be found on the waistband of
J.M.'s panties was if Ewing took off J.M.'s panties.
"Low-Functioning Young Woman
"189. There was no evidence introduced at trial that the witness was low-
functioning or autistic. The respondent has a duty to refrain from making improper,
leading, inflammatory, or irrelevant statements to the jury and must guard against
appealing to jurors' sympathies or prejudices. State v. Holt, 300 Kan. 985, 992, 336 P.3d
312 (2014).
"190. The respondent argued that it was clear from the witness' appearance that
she was low functioning. However, in order for the respondent to argue that the witness
45
was low-functioning, the respondent was required to present evidence that the witness
was low-functioning. The respondent's beliefs, assumptions, and conclusions are not
evidence.
"191. The respondent's argument that the witness was low-functioning combined
with the respondent's argument that Ewing liked to watch autism pornography were
improperly designed to inflame the passions of the jury.
"KRPC 3.4(e)
"192. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In the respondent's closing argument
in Ewing's jury trial, the respondent made several statements that were not supported by
the evidence. There was no evidence introduced at trial that the witness was low-
functioning or autistic. The hearing panel concludes that the respondent violated KRPC
3.4(e) when she argued that the witness was low-functioning without first introducing
evidence to support the argument.
"KRPC 8.4(d)
"193. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).
The respondent engaged in conduct that was prejudicial to the administration of justice
when she made statements in her closing argument that were designed to inflame the
jury's passions and prejudices and contributed to the cumulative error resulting in the
reversal of Ewing's convictions. The respondent's purpose in arguing that a witness was
low functioning and that Ewing liked to watch autism pornography was to inflame the
jury. The hearing panel concludes that the respondent's statement that the witness was
low-functioning was designed to inflame the jury and generate sympathy for the victims,
in violation of KRPC 8.4(d).
46
"Victimized on Social Media and Looking for Attention
"194. While the respondent argued that J.M. and M.W. were attacked on social
media by Ewing's friends and family, the respondent presented no evidence to the jury to
support those arguments. On appeal, the respondent admitted there was no evidence to
support her comments made during closing argument that the women were branded with
the scarlet letter and that there was ugliness directed to the women. The hearing panel
concludes that the respondent's statements in this regard were designed solely to inflame
the jury's passions and prejudices.
"KRPC 3.4(e)
"195. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In the respondent's closing argument
in Ewing's jury trial, the respondent made several statements that were not supported by
the evidence. The respondent's statement that J.M. and M.W. were attacked on social
media by Ewing's friends and family was not supported by the evidence. Because the
respondent's statement that J.M. and M.W. were attacked on social media by Ewing's
friend[s] and family was not supported by evidence, the hearing panel concludes that the
respondent violated KRPC 3.4(e).
"KRPC 8.4(d)
"196. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).
The respondent engaged in conduct that was prejudicial to the administration of justice
when she made statements in her closing argument that were designed to inflame the
jury's passions and prejudices and contributed to the cumulative error resulting in the
reversal of Ewing's convictions. Likewise, when the respondent argued that J.M. and
M.W. were attacked by Ewing's friends and family, the respondent sought to produce
sympathy for the victims and to inflame the jury's passions and prejudices. The
respondent's statement that J.M. and M.W. were attacked by Ewing's friends and family
was designed to inflame the jury and generate sympathy for the victims, the hearing panel
concludes that the respondent violated KRPC 8.4(d).
47
"If There was Sex It was Nonconsensual
"197. The respondent's argument during closing that if Ewing had sex with J.M.
then it could not have been consensual misstated the evidence. The evidence presented
was contradictory and the conclusion that the respondent made regarding the conflicting
evidence was improper.
"KRPC 3.4(e)
"198. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In the respondent's closing argument
in Ewing's jury trial, the respondent made several statements that were not supported by
the evidence. The respondent's argument during closing that if Ewing had sex with J.M. it
was [non]consensual misstated conflicting evidence and was improper. Because the
respondent's statement lacked evidentiary support, the hearing panel concludes that the
respondent violated KRPC 3.4(e).
"Watching Pornography on Mobile Phone and Autism Abuse
"199. The respondent's statement, during the final moments of her initial closing
argument, that Ewing's mobile phone had been seized and examined and that 'while the
defense is telling you that the defendant did not watch those videos[,] know this, the
evidence shows differently,' misstates the evidence presented to the jury.
"200. During the rebuttal portion of her closing argument, the respondent again
misstated the evidence when she said 'now, the defense says this is all smoke. It's not
smoke, it's evidence of an attitude of what—of how you treat women. . . . Autism abuse,
yes, he does.' Because the respondent did not present evidence to the jury that Ewing
abused anyone with autism, the hearing panel concludes that the respondent's statement
was improper.
48
"KRPC 3.4(e)
"201. 'A lawyer shall not . . . in trial, allude to any matter . . . that will not be
supported by admissible evidence.['] KRPC 3.4(e). In the respondent's closing argument
in Ewing's jury trial, the respondent made several statements that were not supported by
the evidence. The respondent's statement that [Ewing] abused a person with autism was
not supported by the evidence. Accordingly, the hearing panel concludes that the
respondent violated KRPC 3.4(e) in this regard.
"KRPC 8.4(d)
"202. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).
The respondent engaged in conduct that was prejudicial to the administration of justice
when she made statements in her closing argument that were designed to inflame the
jury's passions and prejudices and contributed to the cumulative error resulting in the
reversal of Ewing's convictions. In the rebuttal portion of her closing argument, the
respondent's statement that Ewing engaged in the abuse of a person with autism served
no purpose other than to inflame the jury and generate sympathy for the victims. As such,
the hearing panel concludes that the respondent's statement was designed to inflame the
jury and generate sympathy for the victims, in violation of KRPC 8.4(d).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"203. In making a recommendation for discipline, the hearing panel considered
the factors outlined by the American Bar Association in its Standards for Imposing
Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be
considered are the duty violated, the lawyer's mental state, the potential or actual injury
caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
49
"204. Duty Violated. The respondent violated her duty to the public to maintain
her personal integrity. The respondent also violated her duty to the public, to the legal
profession, and the legal system to refrain from conduct that is prejudicial to the
administration of justice.
"205. Mental State. The respondent's level of intent is a key factor for the hearing
panel to consider in making its recommendation for discipline in this case. The
respondent engaged in misconduct during the trial and appeal of Chandler's criminal case
and Ewing's case. Additionally, the respondent engaged in misconduct during the
disciplinary investigation.
"206. When the Supreme Court reversed Chandler's two premeditated murder
convictions, it concluded that the respondent's culpability exceeded negligence.
"207. In the disciplinary context, '"knowingly," "known," or "knows" denotes
actual knowledge of the fact in question. A person's knowledge may be inferred from
circumstances.' KRPC 1.0(g).
"208. In the Standards for Imposing Lawyer Sanctions, the ABA defines intent
and knowledge as follows:
'"Intent" is the conscious objective or purpose to accomplish a particular result.
'"Knowledge" is the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result.'
Based on all the evidence in the record, the hearing panel concludes that the respondent
acted knowingly and intentionally.
"209. Injury. The respondent's misconduct caused serious actual injury. Two
premeditated murder convictions were reversed as a result of the respondent's
misconduct. Additionally, two counts of rape, four counts of aggravated criminal
sodomy, two counts of battery, one count of possession of drug paraphernalia, one count
50
of hosting minors consuming alcohol, and one count of furnishing cereal malt beverages
to a minor were reversed, in part, because of the respondent's misconduct. The injury
significantly impacts J.M., M.W., the families of M.S., K.H., J.M., and M.W., the
defendants, the families of both the defendants, the public, the legal profession, and the
legal system. The hearing panel concludes that the injury caused in this case is extreme
and the effects will be long-lasting.
"Aggravating and Mitigating Factors
"210. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
aggravating factors present.
"211. Prior Disciplinary Offenses. In 2015, the disciplinary administrator's office
informally admonished the respondent for violating KRPC 4.2 (communication with
person represented by counsel).
"212. A Pattern of Misconduct. The respondent engaged in multiple patterns of
misconduct.
a. In both the Chandler case and the Ewing case, the respondent included
many statements in her closing arguments that were not supported by any
evidence introduced at trial.
b. In the Chandler case, the respondent perpetuated the misconduct by
repeating the same statements in the appellate brief, during oral arguments, in her
written response to the initial complaint, and during the sworn statement.
c. The respondent engaged in similar misconduct in both the Chandler
prosecution and the Ewing prosecution. For example, in the Chandler
prosecution, the respondent argued that M.S. told Chandler that he planned to
marry K.H. during the five-minute phone call. The respondent then inferred that
Chandler's motivation to murder M.S. and K.H. was because M.S. told Chandler
51
that he planned to marry K.H. during the five-minute phone call. However, the
respondent had no evidence that M.S. told Chandler that he planned to marry
K.H. during that call. In fact, the respondent had no evidence whatsoever as to
what was discussed during that telephone call. Likewise, in the prosecution of the
Ewing case, the respondent argued that Ewing watched pornography on his
phone and then inferred that because he watched pornography on his phone, he
committed the sexual assaults. The evidence introduced at trial establishes that
pornography was downloaded to Ewing's phone. However, the respondent did
not present evidence that Ewing watched the pornography.
The hearing panel concludes that the respondent engaged in deliberative patterns of
serious misconduct.
"213. Multiple Offenses. The respondent violated six separate rules in many
ways. As such, the hearing panel concludes that the respondent committed multiple
offenses.
"214. Submission of False Evidence, False Statements, or Other Deceptive
Practices During the Disciplinary Process. At the disciplinary hearing, the respondent
admitted that statements made in her sworn statement were inaccurate. The respondent's
sworn statement came just a few months after the Supreme Court issued its opinion
reversing Chandler's conviction. Further, at that time, the disciplinary complaints had
already been pending for some time. The respondent was on notice that her statements
were being carefully scrutinized. Finally, the record is clear that the respondent reviewed
her sworn statement, because she specifically requested that corrections be made to the
sworn statement. The hearing panel concludes that providing false information in the
sworn statement amounts to engaging in a deceptive practice during the disciplinary
process.
"215. Refusal to Acknowledge Wrongful Nature of Conduct. While the
respondent admitted that she made mistakes, the respondent denied that her conduct
violated the Kansas Rules of Professional Conduct. Accordingly, the hearing panel
concludes that the respondent refused to fully acknowledge the wrongful nature of her
conduct.
52
"216. Substantial Experience in the Practice of Law. The Supreme Court
admitted the respondent to practice law in the State of Kansas in 1992. At the time of the
misconduct, the respondent had been practicing law for approximately 20 years.
"217. Mitigating circumstances are any considerations or factors that may justify
a reduction in the degree of discipline to be imposed. In reaching its recommendation for
discipline, the hearing panel, in this case, found the following mitigating circumstances
present.
"218. The Present and Past Attitude of the Attorney as Shown by Her
Cooperation During the Hearing and Her Full and Free Acknowledgment of the
Transgressions. The respondent generally cooperated in the disciplinary investigation and
prosecution. The respondent provided written responses to the complaints, she submitted
to a sworn statement, and she filed an answer to the formal complaint and an answer to
the amended formal complaint. This mitigating factor is offset significantly because the
respondent did not acknowledge that her transgressions violate the rules and she provided
false information during the sworn statement.
"219. Previous Good Character and Reputation in the Community Including Any
Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an experienced and well-respected
prosecutor. The respondent enjoys the respect of her peers and generally possesses a good
character and reputation as evidenced by a letter received by the hearing panel and by the
testimony of Judge Parrish, Carl Cornwell, Jerry Hathaway, Kim Parker, Joel Meinecke,
and Ron Paschal.
"220. Remorse. While the respondent did not admit that she violated any rules
and while the respondent argued that she should not be disciplined, the respondent also
expressed remorse. The respondent testified as follows: 'My responsibility as a
prosecutor is to protect people, and I failed in these cases.'
"221. Remoteness of Prior Offense. The misconduct which gave rise to the
informal admonition in 2015 is remote in character to the misconduct in this case.
53
"222. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'6.11 Disbarment is generally appropriate when a lawyer, with the
intent to deceive the court, makes a false statement, submits a
false document, or improperly withholds material information,
and causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse effect on
the legal proceeding.
'6.12 Suspension is generally appropriate when a lawyer knows that
false statements or documents are being submitted to the court or
that material information is improperly being withheld, and takes
no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding.
'6.21 Disbarment is generally appropriate when a lawyer knowingly
violates a court order or rule with the intent to obtain a benefit
for the lawyer or another, and causes serious injury or potentially
serious injury to a party, or causes serious or potentially serious
interference with a legal proceeding.
'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a
client or a party, or interference or potential interference with a
legal proceeding.'
"Discussion
"223. The hearing panel recognizes that these two criminal cases were very
difficult and complicated cases to prosecute. In the Chandler case, the prosecution was
based on circumstantial evidence and involved a well-publicized double homicide that
54
was tried 10 years after the crimes were committed. The Ewing case had other
complicating factors—it occurred in a small community and turned on the jury's
conclusions of the credibility of witnesses.
"224. The respondent presented credible evidence that she is known to be a
skilled, experienced prosecutor. In fact, the respondent's reputation as a skilled,
experienced prosecutor appears to be precisely why she was assigned and appointed to
prosecute these complex cases.
"225. The respondent's reputation evidence, however, is at odds with the
evidence in the disciplinary case. The respondent repeatedly made arguments without
evidentiary support for the arguments. The respondent made false statements to the
Supreme Court. The respondent ignored the order of a district court. The respondent
either failed to pay attention to the recross-examination of a key witness in the Chandler
case or she intentionally disregarded the fact that the witness recanted his testimony
regarding a key issue. The respondent improperly argued the impact of the crime on
surviving members of the crime victims—contrary to well-established law.
"226. From all the evidence presented, it appears that the respondent concluded
that Chandler and Ewing were guilty of the crimes charged and she adopted a 'win at all
costs' approach.
"227. This case does not involve the respondent making an error in judgment or
engaging in an isolated incident of misconduct. As stated above, the respondent's
misconduct was knowingly and intentionally committed. The respondent engaged in a
deliberative pattern of serious misconduct which resulted in serious injury.
"228. The injury caused by the respondent's misconduct is extreme. As a result of
the respondent's misconduct, the family members of M.S. and K.H. as well as the women
injured by Ewing will have to endure a second trial. Both criminal cases are complicated
and will require the dedication of significant community resources to retry. Further, the
respondent's misconduct undermines the confidence in the judicial system and caused
serious injury to the administration of justice.
55
"229. 'A prosecutor has the responsibility of a minister of justice and not simply
that of an advocate. This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence.' Comment 1 to KRPC 3.8. The respondent failed in her obligation to
see that Chandler and Ewing were accorded procedural justice.
"230. Justice Biles summed up the respondent's misconduct succinctly: 'Taken
as a whole, this prosecution unfortunately illustrates how a desire to win can eclipse the
State's responsibility to safeguard the fundamental constitutional right to a fair trial owed
to any defendant facing criminal prosecution in a Kansas courtroom.' Chandler, 307 Kan.
at 695.
"Recommendations of the Parties
"231. The disciplinary administrator's office recommended that the respondent's
license to practice law be indefinitely suspended.
"232. The respondent recommended that she receive no discipline.
"Recommendation of the Hearing Panel
"233. Based on the deliberative pattern of serious misconduct and the serious
injury that followed, the hearing panel unanimously recommends that the respondent be
disbarred.
"234. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
Respondent filed exceptions to the panel's findings of fact, conclusions of law, and
recommended discipline.
56
DISCUSSION
We first briefly address respondent's argument that the hearing panel should
have granted her motion to admit the results of a polygraph examination that was
administered to her before the hearing. The Internal Operating Rules of the Kansas
Board for Discipline of Attorneys, D.1, requires the panel to "rule on the prehearing
motions presented" by the parties. (2021 Kan. S. Ct. R. 308). Disciplinary hearings are
governed by the Rules of Evidence. Supreme Court Rule 222(e)(1) (2021 Kan. S. Ct. R.
272); see also In re Crandall, 308 Kan. 1526, 1543, 430 P.3d 902 (2018) (considering
arguments in an attorney discipline case "in light of the Rules of Evidence"). We review
the panel's ruling for abuse of discretion. The panel abuses its discretion if its decision is
(1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an
error of fact. In re Harrington, 305 Kan. 643, 656, 385 P.3d 905 (2016).
In a prehearing ruling, the panel exercised its discretion by declining to admit the
polygraph results, appropriately applying the rationale from State v. Wakefield, 267
Kan. 116, 136, 977 P.2d 941 (1999), where we held that polygraph examinations are
inadmissible absent a stipulation by the parties. We therefore find that the panel did not
abuse its discretion in declining to admit the results of respondent's polygraph
examination.
I. Rule Violations
"In a disciplinary proceeding, this court generally considers the evidence, the
disciplinary panel's findings, and the parties' arguments to determine whether KRPC
violations exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence." In re Swischer, 314 Kan. 439,
445, 499 P.3d 1130 (2021); see Supreme Court Rule 226(a)(1)(A) (2021 Kan. S. Ct. R.
57
276). Evidence is clear and convincing when it "'causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Rumsey, 301 Kan. 438, 447, 343
P.3d 93 (2015) (quoting In re Lober, 288 Kan. 498, 505, 204 P.3d 610 [2009]). "'In
making this determination, the court does not weigh conflicting evidence, assess witness
credibility, or redetermine questions of fact. If a disputed finding is supported by clear
and convincing evidence, it will not be disturbed.'" In re Ayesh, 313 Kan. 441, 464, 485
P.3d 1155 (2021) (quoting In re Hodge, 307 Kan. 170, 209-10, 407 P.3d 613 [2017]).
However, we are not bound by the Disciplinary Administrator's or the hearing panel's
recommendations. In re Kupka, 311 Kan. 193, 204, 458 P.3d 242 (2020).
A. The panel misapplied KRPC 1.1 because an isolated incident of mere
negligence, standing alone, is insufficient to support a KRPC 1.1 violation.
KRPC 1.1 (2021 Kan. S. Ct. R. 321) states: "A lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation." The panel
found that respondent violated KRPC 1.1 in two ways. First, she failed to note that
Sergeant Volle "changed his testimony" on re-cross examination, in violation of KRPC
1.1's "thoroughness" requirement. The inquiry into a lawyer's thoroughness includes
considering "the preparation and study the lawyer is able to give the matter." KRPC 1.1
cmt. 1. The panel "recognize[d] the respondent's extensive preparation for the murder
trial," yet it found that despite this extensive preparation, respondent's failure to note the
change in testimony constituted incompetence.
Second, the panel found that respondent's comment that Chandler "robbed her
children of their father and his fiancé [sic]" during closing arguments evidenced a lack of
competence because "[i]t is well settled that prosecutors may not comment on the impact
of a crime on the crime victim or the crime victim's family." Respondent admits that she
58
should "not have commented on the victim's children losing their father," but asserts that
she made the comment "in the heat of the moment."
The panel's conclusions seem to rely on a strict-liability-esque interpretation of
KRPC 1.1. Indeed, the Disciplinary Administrator even argues that the rule "requires no
proof of a particular mental state." We disagree. As we stated in State v. Sherman, 305
Kan. 88, 90-92, 378 P.3d 1060 (2016), not all improper or erroneous acts of a prosecutor
constitute "misconduct." "Prosecutorial acts properly categorized as 'prosecutorial
misconduct' are erroneous acts done with a level of culpability that exceeds mere
negligence." (Emphasis added.) 305 Kan. at 114.
"We prefer to examine the particular circumstances of each disciplinary case."
In re Ketter, 268 Kan. 146, 153, 992 P.2d 205 (1999). Given this, we hesitate to dictate
any bright line rule for defining when an attorney has violated KRPC 1.1, and instead
employ a case-by-case approach more akin to Justice Potter Stewart's famous "I know it
when I see it" standard. Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S. Ct 1676, 12
L. Ed. 2d 793 (1964) (Stewart, J., concurring). But despite the difficulty in creating a
hard and fast rule for defining "incompetence," we have no trouble holding that an
isolated incidence of "mere negligence" cannot rise to the level of "incompetence"
contemplated by KRPC 1.1.
The "'enforcement of competent standards has been generally limited to relatively
exotic, blatant, or repeated cases of lawyer bungling.' C. Wolfram, Modern Legal Ethics
§ 5.1 (1986)." In re Discipline of Laprath, 670 N.W.2d 41, 64 (S.D. 2003). And while
KRPC 1.1 certainly requires a lawyer to provide "legal knowledge" reasonably necessary
for the representation, the panel's finding that respondent's one-off victim impact
statement translated to a lack of legal knowledge necessary to competently prosecute the
case is illogical. Moreover, respondent's failure to notice the shift in Sergeant Richard
59
Volle's testimony on recross-examination was also an isolated act at the trial that did not
exceed "mere negligence" or reflect negatively on respondent's "preparation and study."
KRPC 1.1 cmt. 1; see also In re Disciplinary Action Against Feland, 820 N.W.2d 672,
684 (N.D. 2016) ("[A]n isolated act of negligence will not necessarily satisfy the broad,
generic concepts of incompetence or lack of diligence."); In re Askew, 225 A.3d 388,
394-95 (D.C. 2020) (ethics rules are designed to address "failures that constitute a
'serious deficiency' in an attorney's" conduct, and "[m]ere careless errors do not rise to the
level of incompetence"). The panel's findings that respondent violated KRPC 1.1 are not
based on any repeated patterns of conduct that exceed mere negligence and therefore do
not satisfy the broad, generic concept of incompetence.
Because we hold that mere negligence, standing alone, is insufficient to support a
KRPC 1.1 violation, we find the panel's conclusion that respondent violated KRPC 1.1 is
not supported by clear and convincing evidence.
B. The panel's finding that respondent violated KRPC 3.1 is supported by clear
and convincing evidence.
KRPC 3.1 (2021 Kan. S. Ct. R. 384) provides that "[a] lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein, unless there is a basis for
doing so that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law." The panel determined that respondent violated
this rule because no evidence supported her claim that Chandler learned of M.S.'s
engagement during the five-minute phone call. The panel concluded respondent also
violated KRPC 3.1 in Chandler's direct appeal when she stated before our court during
oral arguments that "[w]e know exactly what happened during that phone call."
Respondent focuses on the theory of the call being the "trigger" call, pointing out
that Sergeant Volle testified at the hearing that "many other law enforcement officers"
60
reached a "consensus" that the call "triggered" the murders, and that KBI investigator
Mark Malick similarly testified that he "strongly believed" that "that phone call was the
trigger." But just because the call itself was widely believed to be the trigger does not
prove what was actually said during the call. There is no evidence that would support
respondent's statement before this court that "[w]e know exactly what happened during
that phone call" or for her to make similar claims at trial.
Respondent argues that "to be sanctioned" she "must have known there was no
evidence nor reasonable inferences from the facts to show . . . the content of the five-
minute phone call." We are unpersuaded by this argument, because respondent has
offered no reason why she supposedly did not know about the lack of evidence. All the
evidence was readily available when she made her statement. Moreover, because of her
word choice, she was not making a "reasonable inference." Rather, "we know exactly"
presented it as a conclusive statement of fact.
Therefore, we conclude that the panel's finding that respondent violated KRPC 3.1
is supported by clear and convincing evidence.
C. The panel's finding that respondent violated KRPC 3.3(a)(1) is supported by
clear and convincing evidence.
KRPC 3.3(a)(1) (2021 Kan. S. Ct. R. 385) provides that "[a] lawyer shall not
knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer[.]" The
rule requires a "knowing" state of mind, which "denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances." KRPC 1.0(g)
(2021 Kan. S. Ct. R. 318).
61
The panel found that respondent intentionally violated this rule in three ways:
(1) by arguing to the jury during closing arguments (including in her PowerPoint slide)
that M.S. sought and obtained a PFA and that Chandler violated it; (2) by making similar
statements in the State's initial appellate brief; and (3) during oral arguments before this
court when she argued that evidence introduced at trial supported her claim that a
restraining order was in effect at the time of the murders.
Before the Chandler trial, respondent filed a K.S.A. 60-455 motion requesting to
admit evidence of stalking type behavior to establish Chandler had motive to kill both
victims. In it, she stated: "[M.S.] requested an immediate restraining order on October
15, 1998, indicating that this defendant intentionally, maliciously, and repeatedly
followed and harassed him, destroyed personal property of his acquaintances and had
engaged in telephone harassment." (Emphasis added.) Notably, the K.S.A. 60-455 motion
did not state that M.S.'s motion had ever resulted in a granted order. This fact supports
the panel's finding that respondent intentionally violated KRPC 3.3(a)(1), as the language
of respondent's pretrial motion seems to acknowledge that M.S. had only requested a
motion for a restraining order, yet had not been granted one. This is especially true
considering that in the very same motion, respondent also described a PFA order that had
actually been granted against Chandler by her daughter several years after the murders,
indicating that respondent was well aware that no such order had been entered in 1998.
Moreover, Sergeant Volle testified at the hearing that he unsuccessfully tried to
locate a signed order. He also testified that he did not have any specific memory of a
family member telling him that M.S. obtained a PFA against Chandler. And during
respondent's oral argument before our court in Chandler's direct appeal, she made clear
that she knew no order was entered, or at least, that the order was not physically in the
State's evidence—but we only obtained this admission from respondent after asking her
dozens of questions:
62
"JUSTICE BILES: And in the—I was reading the closing arguments again last
night, and when that comes up it seems like you hit it hard and fast. Number one, you
said something that wasn't true, that there was a protection from abuse order. Number
two, you said that that means that the judge agreed that the defendant was a danger
because you'd have—that would be the foundation for entering an order for protection
from abuse. And number three, you said that the defendant ignored the order.
"MS. SPRADLING: Yes, sir.
"JUSTICE BILES: And none of that is true?
"MS. SPRADLING: It is true.
"JUSTICE BILES: How's it true if there was no protection from abuse order?
"MS. SPRADLING: Because what I should have said Your Honor, was that
there was a protective order. A protective order, as this Court knows is an umbrella.
"JUSTICE BILES: Entered at the beginning of the divorce proceeding against
both parties and concerning, I think in her case, the residence. That's a whole lot different
then a protection from abuse order, isn't it?
"MS. SPRADLING: Yes, but there are two orders in this case, Your Honor.
"JUSTICE BILES: Okay. Well, what do I need to look at?
"MS. SPRADLING: There was a protective order in October of 1998. That is
different from the protective order that was originally given in 1997, which fits the
definition that you described. However, after the divorce was over in September of 1998,
the defendant had still not signed the divorce journal entry and she had filed, the day after
the last hearing multiple motions to reopen the entire case. It was after this in October of
1998 that Mike Sisco requested a protective order and a case manager.
63
"JUSTICE BILES: And the Court didn't—but the district court didn't give that
protective order that was requested in 1998?
"MS. SPRADLING: I can tell you, if I'm limited to the record on appeal, I
can't—I cannot point to it.
"JUSTICE BILES: You entered into evidence the entire divorce file.
"MS. SPRADLING: No, sir, I did not.
"JUSTICE [BILES]: Or a ton of it anyway?
"MS. SPRADLING: Yes.
"JUSTICE [BILES]: We have a huge exhibit—
"MS. SPRADLING: Yes, sir.
"JUSTICE [BILES]: —that—that's—that's the divorce file and there's no order
in it.
"MS. SPRADLING: There is no order in it, you're exactly right. There's no—
"JUSTICE [BILES]: I mean, you can't say there was an order entered because
there's nowhere in evidence that an order was entered.
"MS. SPRADLING: I believe that testimony that an order was entered is also
direct evidence that allows—
"JUSTICE [BILES]: That would be the detective's statement?
"MS. SPRADLING: Yes, sir.
64
"JUSTICE [BILES]: But the detective took it back in cross-examination and
said, oh, I really don't recall if there was an order, you'll have to look at the file in
evidence.
"MS. SPRADLING: Yes, Your Honor.
"JUSTICE [BILES]: There's no order in evidence. How do you stand up in front
of a Jury and tell them that a protective—protection from abuse order was entered and
then say that that means that the judge validated the claim and that the defendant ignored
it?
"MS. SPRADLING: Because a protective order, protection from abuse and also
protective order is signed off by a judge who must agree—
"JUSTICE [BILES]: But there was no protective—I mean, all I can do is go by
what you said.
"MS. SPRADLING: Sure.
"JUSTICE [BILES]: So what you said was there was a protection from abuse
order, and that's not true?
"MS. SPRADLING: That is not true. It is protective order, not a protection from
abuse. And the difference is the protective order was issued in the divorce proceeding. A
protection from abuse order is an order that a person applies for and is granted outside of
the divorce proceeding. However, they are both protective of one person against the
other. They both require, by judicial order, one person to stay away from the other. And
having been involved in pretrial meetings and preparation in this case, I can tell you that
there was a protective order. I said protective—protection from abuse and I should have
said protective.
"JUSTICE JOHNSON: And this is your—
65
"[JUSTICE BILES]: [J]ust—is it your claim that in that statement you are within
the wide latitude given to prosecutor's, that's really our step?
"MS. SPRADLING: Yes, sir. I can tell you without certain there's no ill will in
saying protection from abuse rather than protective order.
"JUSTICE BILES: But that's—I'm sorry, go ahead.
"JUSTICE JOHNSON: Now are we talking about the October '98 request?
"MS. SPRADLING: Yes, sir.
"JUSTICE JOHNSON: Well, I'm confused. A month before trial the State filed a
60-455 motion asking to—to enter this—this evidence, 'um, and it only referred to a
request for an immediate restraining order in October '98. I'm curious why the State
wouldn't have asked that the Court consider the order if there was one, in fact, in place.
"MS. SPRADLING: I don't want to mislead this Court. There is no document
that I found in State's Exhibit 969 which was the divorce file. There's no document in that
file that is either a protection from abuse or a protective order. So, if I indicated that
there was a document, I don't want to mislead you. I do know, speaking with the victim's
family members, that the order existed. 'Um, and that that was discovered by Detective
Volle as the lead detective in this case." (Emphases added.)
And lastly, respondent testified at the hearing that before the Chandler trial she
only found the motion for immediate restraining order in the divorce file, which led her to
refer only to the "motion for immediate restraining order" in her opening statement. This,
taken together with the above exchange during oral arguments and the language in
respondent's 60-455 motion, supports the hearing panel's finding that respondent violated
KRPC 3.3(a)(1).
66
D. The panel's finding that respondent violated KRPC 3.4(c) is supported by
clear and convincing evidence.
KRCP 3.4(c) (2021 Kan. S. Ct. R. 389) provides that "[a] lawyer shall not . . .
knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists[.]" The panel found that respondent
violated this rule when she referenced the gallery in her closing argument in direct
contradiction of Judge Parrish's order. KRPC 3.4(c) requires a "knowing" violation,
which can be shown through "actual knowledge of the fact in question" or "inferred from
circumstances." KRPC 1.0(g).
Judge Parrish's ruling was as follows:
"THE COURT: . . . One thing I do want to say, I know we've had a lot of folks
that have been here observing the trial and I suspect there are very, very strong feelings
on both sides of this case. I do not want any of the folks that are in the gallery to be asked
to stand up at any time during the closings.
....
"I will [be] jumping on you big time, if you do that. Do not do that in this case. I
don't want references to folks here at all.
"MS. SPRADLING: I understand your parameters, your Honor.
"THE COURT: That goes for both sides. We're not injecting any sympathy for
victims or for the defendant into these proceedings. And it's appropriate that we not inject
that into the proceedings." (Emphasis added.)
However, respondent referred to a friend of Chandler's that was present in the
gallery shortly after this ruling was made. After playing an audio recording of a jail call,
67
respondent stated: "That's the defendant and her close friend Shirley Riegel that I'm
getting a look from talking about what a great day it was because Patti Williams was dead
and can't put the defendant in Kansas." (Emphasis added.) Given that Judge Parrish
explicitly stated that "I don't want references to folks here at all," and respondent replied
that she "underst[oo]d [the] parameters," the panel's finding that respondent knowingly
violated the order is supported by clear and convincing evidence because the order's plain
language gave respondent "actual knowledge" of her "obligation under the rules of the
tribunal." KRPC 1.0(g); 3.4(c).
E. The panel's finding that respondent's conduct during the Chandler
prosecution violated KRPC 3.4(e) is supported by clear and convincing
evidence.
KRPC 3.4(e) (2021 Kan. S. Ct. R. 389) provides that "[a] lawyer shall not . . . in
trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence . . . ." KRPC 3.4(e) requires that the
attorney have a "reasonable belief," which "denotes that the lawyer believes the matter in
question and that the circumstances are such that the belief is reasonable." KRPC 1.0(j).
The panel found five instances in the Chandler trial where respondent violated this
rule: (1) arguing the existence of the PFA; (2) five-minute phone call; (3) Nebraska exit
theory; (4) internet searches; and (5) "Chandler thinks she is smarter" comment. We
consider each finding in turn.
First, the panel found that respondent violated KRPC 3.4(e) because her
"argument that a restraining order existed at the time of the murders and that Chandler
violated the restraining order was not based on any evidence admitted before the jury."
Respondent points to Sergeant Volle's testimony on redirect examination as the basis for
having made the statements to the jury:
68
"Q. Will you tell the jury what a production [sic] from abuse or PFA is.
"A. It's a document signed by the Court that says you are not able to have contact with
another person, you're not supposed to call them, write them, contact them in any
manner.
"Q. A court order precluding one person from contacting another?
"A. Yes.
"Q. Did [M.S.] get a protection from abuse?
"A. Yes, he did.
"Q. Against who?
"A. Against the defendant.
"Q. In 1998?
"A. That's correct.
"Q. Did [M.S.] get a PFA or protection from abuse against anybody other than the
defendant?
"A. No one else."
Chandler's defense counsel asked the following of Volle on recross:
"Q. Detective Volle, you testified that [M.S.] had obtained a protection from abuse order;
is that correct?
69
"A. Yes.
"Q. Do you have that?
"A. It's in the divorce file. I don't have a copy of it.
"Q. Was it actually signed by a judge and filed or was it a motion or a request for one that
wasn't—
"A. I don't recall."
In State v. Chandler, 307 Kan. 657, 678, 414 P.3d 713 (2018), we described this
exchange as Sergeant Volle "admit[ting] he could not say any such order existed, which
put the prosecutor on notice that the detective's testimony could not establish this as fact."
Despite this notice, respondent stated in closing arguments:
"How else do we know the defendant is guilty? [M.S.] got a protection from
abuse, a court order. He applied and said, hey, Judge, please order this woman to stay
away from me and the Judge agreed. And in 1998, meaning one year after he filed for the
divorce, he was continuing to have problems with the defendant not leaving him alone.
So he got a court order saying she has to stay away. The protection from abuse order did
not stop the defendant, though."
Respondent also displayed a slide to the jury that stated: "HOW ELSE DO WE
KNOW THE DEFENDANT IS GUILTY? [M.S.] GOT A PROTECTION FROM
ABUSE COURT ORDER KEEPING DEFENDANT AWAY FROM HIM IN 1998."
Respondent called Ron Paschal, Chairman of the Kansas Prosecutor's Grievance
and Ethics Committee, at the hearing to testify that he did not view the exchange on
recross "as a recantation," but rather "as a fairly effective cross-examination," and that he
70
viewed the issue as being "more about the quality of the evidence." Yet even if we were
to adopt that view of the exchange, still another problem remains when considering the
language that respondent used when referring to the PFA.
Respondent told the jury that M.S. "got a court order saying she has to stay away.
The protection from abuse order did not stop the defendant, though." (Emphasis added.)
This statement indicated to the jury that an active order was in place at the time of the
murders. But K.S.A. 60-3107(e) provides that "a protective order . . . shall remain in
effect until modified or dismissed by the court and shall be for a fixed period of time not
to exceed one year[.]" The only identified application in the Chandler case was from
1998. So even if that order had been granted, it would have expired years before the
murders without an affirmative renewal. Therefore, even if we gave full credit to
Sergeant Volle's testimony about the 1998 PFA, it was still too far of a jump for
respondent to declare that the order remained in place four years later in 2002 when the
murders occurred.
We accordingly find the panel's conclusion is supported by clear and convincing
evidence because Sergeant Volle's testimony did not give the respondent an evidentiary
basis for asserting that M.S. had obtained a PFA order or that Chandler violated it when
she allegedly committed the murders.
Next, the panel found that respondent violated KRPC 3.4(e) when she declared
that Chandler learned of M.S.'s engagement during the five-minute phone call and
implied that this knowledge prompted Chandler to travel to Topeka and kill the victims
because it was not supported by admissible evidence.
71
As we described above, no evidence was admitted at trial about the content of the
phone call. While it was apparently widely agreed among investigators that this call was
the "trigger," this does not confirm what was said during the call. KRPC 3.4(e) prohibits
alluding to any matter that will not be supported by admissible evidence. And respondent
presented no evidence supporting the theory. Accordingly, the panel's finding that
respondent violated KRPC 3.4(e) by discussing the substance of the five-minute phone
call during opening and closing but not admitting or attempting to admit any evidence as
to its contents is supported by clear and convincing evidence.
Third, the panel found that respondent intentionally violated KRPC 3.4(e) during
her "opening and arguments in closing regarding the Nebraska exit theory" because they
"were not supported by evidence admitted at trial."
Respondent's opening statement claimed:
"The defendant's actual route, you'll be provided in this case, is that she went through I-
70 east to Topeka from Denver passing through WaKeeney on July 6th, 2002, as
Margaret Linden will indicate. Somewhere along that route, probably around Salina, the
defendant would have had to have used the ten gallons of gas that were in the two five-
gallon gas cans she purchased at Autozone before she committed the murders. The
defendant's actual route included that she went from Denver, to Topeka, Mike and
Karen's house, and after killing both Mike and Karen in an interest to get out of the state
as quickly as she could, she drove directly up to Nebraska. After she gets to Nebraska,
she turns around and goes home heading towards Denver. This route matches the
defendant's gas purchases and the defendant's gas consumption by her credit card
receipts." (Emphases added.)
Additionally, respondent displayed slides to the jury that depicted a map of Kansas
and the eastern half of Colorado, with notes made along the map that stated "Defendant's
actual route." (Emphasis added.)
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The jury certainly heard evidence that challenged the legitimacy of Chandler's
alleged route and her whereabouts the weekend of the murders. However, it is one thing
for respondent to highlight the inconsistencies in Chandler's story—and it is quite another
for her to make repeated claims that Nebraska was Chandler's "actual route." We thus
find that the panel's conclusion that respondent violated KRPC 3.4(e) is supported by
clear and convincing evidence.
Fourth, during respondent's opening statement, she claimed: "John Kite will also
tell you that the defendant accessed articles on CJ Online that dealt with how to defend
against murder charges and articles that dealt with sentencing in murder charges." The
panel found that this violated KRPC 3.4(e) because this claim was not supported by
admissible evidence.
At trial, respondent asked Agent John Kite only a few questions about any CJ
Online articles covering the homicides that Chandler may have searched:
"Q. Did you find anything related to viewing articles on CJ Online or the Topeka Capital-
journal.
"A. Yes. I found HTML fragments that produced search results for CJ Online that had
related articles about the homicide and the investigations into them.
....
"Q. Did you find the anniversary of the double homicides that there had been another
search regarding or looking into CJ Online about the homicides?
"A. The HTML fragments I found that related to that produced a story which was the
one-year anniversary story by Tim Hrenchir."
73
However, this quick exchange about the anniversary articles in no way relates to a
search about how to defend against murder. Clearly the testimony elicited from Agent
Kite did not match up with respondent's opening statement.
The panel also pointed to testimony from Agent Kite at the hearing. The panel
found that Agent Kite "denied ever finding evidence that Chandler accessed articles
regarding how to get away with murder, how to defend against murder charges, or
sentencing in murder cases. Furthermore, Agent Kite denied ever conveying such
information to the respondent during a pretrial meeting." And though Agent Kite's
testimony conflicted with respondent's version of events, the panel weighed the
witnesses' credibility and found:
"Because other evidence corroborates Agent Kite's testimony, because Agent
Kite has no reason to fabricate, because the respondent did not ask Agent Kite any
questions designed to elicit the information, because the respondent has expressed that
she does not recall a number of facts in this case, because the respondent has now
admitted that other statements she made previously were incorrect, and because the
respondent misstated evidence, the hearing panel accepts Agent Kite's testimony and
rejects the respondent's testimony in this regard."
We generally respect the panel's findings when it concludes that one person's
testimony was more credible than another's because, as the trier of fact, the panel had the
chance to observe the witnesses and assess their demeanor. As such, we will not reweigh
evidence or evaluate the witnesses' credibility. In re Saville, 311 Kan. 221, 235, 458 P.3d
976 (2020); In re Murphy, 312 Kan. 203, 224, 473 P.3d 886 (2020). The panel made such
a credibility determination here, and evidence presented at the hearing supports this
finding. We will not disturb it.
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The fifth and final instance of respondent's conduct in the Chandler trial that the
panel found violated KRPC 3.4(e) came from closing arguments, where respondent
stated:
"She planned it in advance. You know why, you heard the evidence, she's smart, she's got
high intelligence and she thought she was smarter than the police department and she
thought she was smarter than the jurors and it's not true, because we are lucky enough to
have law enforcement officers who didn't torture her. She's still playing the victim. They
wanted justice. And we have you. She's not smarter than the cops, she's not smarter than
you."
The panel found that this argument was "not based on sufficient evidence admitted
before the jury" and therefore violated KRPC 3.4(e).
At respondent's hearing, detectives testified about their theory that Chandler
considered herself smarter than law enforcement, in part based on Chandler's tactic of
"going dark" during the time the murders took place (meaning that she took steps to
ensure her credit cards and phone could not be tracked). The FBI completed a profile on
Chandler, and "one of the key things" that the profile described about her is that she is the
type of person who "feel[s] like they're the smartest person in the room."
Despite these reports and seemingly widespread consensus among the
investigative team that Chandler thought she was smarter than everyone else, the jury
did not hear any of this evidence. The only information presented to the jury about
Chandler's intelligence came from her boss at Buell & Company in Denver. He testified
that Chandler was his bookkeeper, and when respondent asked him how smart he
believed Chandler was, he answered: "Intelligence wise, probably above average." This
one sentence of testimony about Chandler's intelligence does not support an inference
that Chandler believed she was smarter than police and the jurors, and since respondent
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made this statement in closing arguments, she knew that she had not entered evidence
that would support such a statement. We conclude that the panel's finding that this
statement violated KRPC 3.4(e) is supported by clear and convincing evidence.
F. The panel's finding that respondent's conduct during the Ewing prosecution
violated KRPC 3.4(e) is not supported by clear and convincing evidence.
While the panel's findings with respect to KRPC 3.4(e) violations resulting from
the Chandler trial are supported by clear and convincing evidence, we cannot say the
same of the panel's findings about the Ewing trial. The panel found five additional KRPC
3.4(e) violations resulting from the Ewing trial: (1) DNA evidence; (2) "low functioning"
comment; (3) reference to social media attacks; (4) if there was sex it could not be
consensual comment; and (5) watching pornography and autism abuse comments.
Before we turn to those findings, we first pause to note that the Disciplinary
Administrator presented no witnesses at the hearing who testified about the Ewing case.
At oral arguments the Disciplinary Administrator explained that he relied on the
admission of the Ewing trial record and the Court of Appeals State v. Ewing, No.
118,343, 2019 WL 1413962 (Kan. App. 2019) (unpublished opinion), opinion into
evidence before the hearing panel, which he alleges were sufficient to support a finding
that respondent committed the alleged rule violations. Interestingly, the Court of Appeals
declined to use the heightened "misconduct" label and instead categorized respondent's
conduct as prosecutorial error. 2019 WL 1413962, at *32. What is more, both the panel's
final hearing report and the Disciplinary Administrator curiously ignored the vast amount
of hearing testimony respondent presented that provided much more color to the
otherwise cold Ewing record, which leads us to find that respondent's conduct in that trial
did not amount to misconduct that violates the KRPC.
76
First, the panel found that respondent violated KRPC 3.4(e) when she stated:
"[J.M.] told everyone, and there's no contradiction to this, that when she went to
bed in the defendant's bed she was fully clothed. Why is that important? It's important
because of the defendant's DNA around the waistband of [J.M.]'s panties. You cannot get
the defendant's DNA there unless she was unclothed. She went to bed in panties and
sweats. Unless the sweats are taken off, she would not have the defendant's DNA there.
And the only reason that [J.M.]'s panties were exposed was because the defendant took
her pants off. [J.M.] told you that the panties were ripped, and the panties that are in
evidence are ripped. Rachel White told you that she swabbed around the waistline. Those
waistbands, pretty thin, not much there. Not much surface to swab, yet Rachel White was
able to find the defendant's DNA there."
The panel concluded this statement was made in violation of KRPC 3.4(e) because
it was not supported by the evidence.
KRPC 3.4(e) prohibits a lawyer from alluding to any matter the "lawyer does not
reasonably believe" is supported by admissible evidence. Reasonable belief is shown
when the lawyer "believes the matter in question and that the circumstances are such that
the belief is reasonable." KRPC 1.0(j). While the Court of Appeals took issue with this
statement, it was not because it was unsupported by the evidence. Rather, it was because
of respondent's phrasing. "[H]ad the prosecutor asserted that the DNA evidence
supported the conclusion that J.M.'s sweatpants were removed, that would not be error,"
but the way respondent phrased the argument "misrepresented the evidence that had been
admitted for the jury's consideration and, as such, was error." 2019 WL 1413962, at *35.
Shawna Miller, Jackson County Attorney, who initially reached out to respondent
for help with the Ewing prosecution, testified that she "would see absolutely zero
problem with saying that the logical conclusion is given the placement of the DNA, . . .
that was supportive of what the victim said happened, that he physically ripped those
77
panties off of her." Like the Court of Appeals found, Miller stated that the problem here
was "just kind of a phrasing issue." She highlighted how "the touch DNA was on the
inside of her underwear waistband and she had sweatpants over there. The allegations
were that he ripped off the sweatpants and literally ripped off her underwear. . . . And so,
given the placement of the DNA it was a logical conclusion that that's how it got there."
Given that the trial testimony did support this inference, but respondent erred
because of a phrasing issue, we find that respondent did not violate KRPC 3.4(e) when
she made this statement.
Second, the panel found that respondent violated KRPC 3.4(e) because there "was
no evidence introduced at trial that the witness was low-functioning or autistic," and that
she should not have made that statement "without first introducing evidence to support
the argument."
We agree that it would have been better for respondent to have sought admission
of evidence about J.M.'s functioning before commenting on it. However, we find that it
does not warrant a misconduct label given the extensive hearing testimony about J.M.'s
very visible difficulties. As the Indiana Supreme Court has recognized, disciplinary
proceedings afford an "opportunity for evidentiary development beyond the cold record
available to the Court of Appeals . . . . [A] written trial transcript 'presents only a small
part of the whole picture,' and in a disciplinary proceeding the parties may be able to
offer additional evidence that paints a more complete picture." In re Smith, 60 N.E.3d
1034, 1036 (Ind. 2016).
At trial, one of the only pieces of evidence from the cold record revealing J.M.'s
level of functioning came when she was asked to put the date on a picture, and asked,
78
"What number is June?" However, at the hearing, there was significant testimony about
J.M.'s functioning that paints a more complete picture. First, respondent stated:
"The victim/witness assistant held JM's hand up to the bar when she went to testify, and
that was there obviously in front of the jury. I believe that there was sufficient evidence
by her demeanor, her inability to—well, her struggling while she was testifying. She
wore slippers to court, Mr. Vogelsberg, and I believe that the record was sufficient for
that argument."
Agent Mark Malick testified:
"I spent of a lot of time with JM . . . . I was privy to how she conducted herself on the
witness stand, and I did see her throughout the trial, the initial trial. And I—I—I hesitated
when I use the word—just a quick background, I was involved with Special Olympics
Kansas as a volunteer, being on the board of directors for 29 years, and I hate to use the
word intellectual disabilities, but I—she comes awful close to fitting that term, if you
will.
"Her attention span was very short. 'Um, it took her a long time to answer
questions. And I will tell you that I never go into an interview setting a time limit because
you never know, depending on who you're talking to and what it involves, but I didn't
have the plan on spending as much time as we did. And I don't have that interview
directly in front of me to—to know how long it was, but it was several hours. And that
was just the first interview. And part of that was because between answering questions
she'd ask for a piece of paper so she could actually draw and doodle. And I—that helped
her to a degree, but she—she is a person that doesn't express herself very well. She does
come across as slow, if you will, or low functioning.
"'Um, I did see, partially, and hear of an episode in court where she, more or less,
zoned out or blacked out on the stand. And I don't mean physically collapsed, but she was
unresponsive to any questions or direction from the Court. She talked about medication
she's on to control some of her behaviors. She discussed some of the problems she had in
school. 'Um, so, yes, I—I did have—she was—she was difficult to work with, to say the
79
least. And—and I didn't believe that that was because, A, nobody likes to cooperate in
something like this, but I didn't take that as being the root cause of the difficulty in
interviewing her."
Later in his testimony Agent Malick reaffirmed that he would call J.M.
"somewhere in the low range" of functioning, stating, "there's no[] other way to put it,
she did not function that high."
Lisa Hyten, a victim services coordinator with the Jackson County Sheriff's
Office, reiterated many of the same impressions. Hyten stated:
"I notice when she communicated with other people she struggled often to find
words, sometimes would become short of breath. She would fidget and sometimes need
to draw in order to stay focused. It appeared as if she had a pretty serious issue with
social anxiety.
"She particularly struggles when she's given—given tasks with multiple steps
that need to be broken down.
....
"[T]here are a number of ways the jury would have observed the same
observations that I'm mentioning here today. First, when she was giving direct testimony
and answering questions by both the attorneys she . . . got very confused very frequently.
Often the attorneys would have to stop, and . . . if they had asked multidimensional
questions they'd have to break them down to one concept at a time to get her through. She
several times told both the attorneys on different occasions she was confused by what
was being asked and said.
....
80
"The jury would also have observed JM's vocabulary, for instance, when she was
describing her . . . neurological treatment she talked about having brain-ish therapy or
needing to do brain exercises. And another point in time when the defense was
questioning her she was asked to put a date on a picture and she asked the Court what
number is June. Those would have been some of, in her direct testimony, issues that were
maybe apparent to the jurors.
"She also in her direct testimony told the jury that she had ongoing long-term
neurological problems and mental health concerns. The jury would have had access to the
SANE-SART medical report and examination which listed a history of PTSD and
seizures. The jury would have heard Jennifer Johnson, who actually was a defense
witness, testify that the SANE-SART nurse that examined JM reported that she was very
immature."
Shawna Miller testified about J.M. as well. She pointed out that Ewing's counsel
filed a pretrial Gregg motion, which she described as a request "for the court to order
essentially a psychological evaluation of a witness. Usually it's asked for if there's mental
health issues, . . . limitations, maybe educational, functioning type limitations." This
motion was filed by the defense after the preliminary hearing, and Miller testified that
Ewing's defense counsel was "not one just to file a Gregg motion in every case," but she
rather would have wanted "to feel she could support that motion with a straight face
argument with the court. . . . [T]here are some defense attorneys that will just file them,
but she's not one of them. She's only going to file a motion if she thinks it's appropriate
and she's going to win it, honestly."
Miller recalled her impression of J.M. while questioning her on the stand:
"A. One . . . thing in particular is right when I got to kind of the very, very
difficult part of her testimony where we had to start talking about penetration, she kind of
froze and seemed to just not respond for—it was probably only a few seconds, but it
seemed like a long time.
81
....
"Another thing that I would just note in dealing with her is that, 'um, I almost had
to examine her like I would examine a young child. Had to use very simple terms. She
was very easily confused by the questions. We had to ask very simple questions. It's kind
of hard to articulate other than to say that I had to ask her questions like I would a very
young child on the stand, not somebody who was in her early twenties, late teens.
....
"Q. Is it—is it one of those that—the Supreme Court Justice Hand, [sic]
'pornography, you know it when you see it,' but is it one of those that when you see it you
realize there's some mental issues going on there? Just—
"A. Yeah. . . . It's pretty evident.
....
"A. It would just go back to, you know, she was very childlike, and just having to
ask her questions as you would a young child. Very simple words. Simple questions.
Breakdown your questions into very simple, small answers. You could tell that she—you
could tell that she was very traumatized obviously with the disassociation that I
described.
"She acted as a young child would on the stand. You mentioned fidgeting, just
kind of keeping her attention, keeping her focused was a little bit of a challenge, too."
When asked if the better route would have been to have an expert testify about the
low functioning of J.M. to better establish the record, Miller said maybe, but they also
wanted to avoid "heaping . . . on" embarrassment for J.M., and that they did not find it
necessary because "it was really pretty evident for the jury to see."
82
J.M.'s difficulties were so apparent, that even defense counsel had no problems
referencing it during her closing argument:
"So let's talk about why we know this could not have happened to [J.M.].
....
"Her story on the stand was confusing and it didn't make such sense. She seemed
very confused. She has seizure issues, we know that. She testified to that. We know they
happened before May 6th of 2016 and we know she's still receiving treatment for them.
She wants to tell you that she's going to some type of physical therapy for her brain to
make her brain work better . . . ."
What is more, defense counsel explicitly called J.M. intellectually slow, and then
even went so far as to contrast J.M.'s apparent reduced mental capacity with the other
victim, M.W., who she called "a really bright girl":
"[J.M.], she may be—she may be, intellectually, a little bit slower, but you saw
her. She's a tall girl, she's a broad-shouldered girl. She can take care of herself. But even
if she couldn't, where is the beating? Where is [M.W.]'s weakness? [M.W.] seems like a
really bright girl." (Emphasis added.)
As Hyten stated, the fact that the defense explicitly called J.M. intellectually slow
is perhaps "a lot more offensive" considering that "autism is a spectrum and not
necessarily a diagnosis." But in any event, the fact that defense counsel felt comfortable
enough with the visible nature of J.M.'s difficulties to make these statements to the jury
suggests that it was not a violation of our rules of professional conduct for respondent to
have done the same.
83
In sum, we find that respondent did not violate KRPC 3.4(a)'s prohibition on
alluding to a matter that she did not reasonably believe was supported. Once again,
"reasonable belief" is present where "the lawyer believes the matter in question and that
the circumstances are such that the belief is reasonable." KRPC 1.0(j). Here, based on the
testimony before the hearing panel, we find that the circumstances were such that
respondent's belief was reasonable.
Third, the panel found that respondent violated KRPC 3.4(e) when she claimed
"J.M. and M.W. were attacked on social media by Ewing's friends and family" because
this statement "was not supported by the evidence." Respondent specifically stated:
"[W]omen who have been sexually assaulted do not want to be cross-examined on it.
They do not want to tell well-intending but still strange people to them about a sexual
experience. They do not want to be victimized on social media by the defendant's friends
or family. They do not want to have the embarrassment, the humiliation that these young
women have had to know."
As the Court of Appeals noted, there was no evidence presented at trial that the
victims were victimized on social media by Ewing's friends or family. The victims were
not asked specifics about any social media or messages they received; Miller testified that
"they may have said, you know, my whole life has blown up," but that would be the
extent of it.
However, respondent presented extensive evidence before the hearing panel about
Ewing's family's activity on social media and in the community surrounding the trial
which was well known to all participants—including, to some extent, the jury. Miller
testified that the Ewing family targeted the victims online and "community wide." This
issue came up during voir dire because Ewing's counsel "added a question to the jury
questionnaire regarding social media" because of a recognition "that the family was
84
attempting to use this medium to influence the jurors and the community," and that it was
"constant" and "very inflammatory." Miller was concerned that the jury pool was tainted,
because the town of Holton had "probably around 2,000" citizens and "[e]verybody
knows everything in Holton, so if it's on Facebook, probably everybody is going to hear
about it."
Specifically, Miller recalled the victims being called "liars," "things much worse
than liars," and that "they were just doing it to get attention." She also recalled a meme
that was made that showed the victim's faces—and included their first and last names—
chained up in orange jumpsuits and which said something to the effect that "women who
false report should be in prison as well." These posts came from Ewing's mother and
grandmother.
Hyten also talked about "ongoing problems" with the victims receiving hateful
messages. She described how a Ewing family member took "a post off JM's Facebook
and edited to make it look as if it was sort of a crude sexual comment, and then had
reposted it and said something about what this pathetic whore was doing."
Miller recalled signs being put up "all over Jackson County" that said, "Justice for
Jacob," and that the family also had t-shirts with similar messaging that they all wore to
court during the trial. Miller agreed that it was necessary to address this environment with
the jury because they "obviously" were seeing it, as there was "no way to avoid it" when
going to the courthouse. She said that the courthouse "security had to be pretty tight"
because the Ewing family would harass those present in support of the victims, that they
"would make cow noises, pig noises at the victims as they walked by," and that they
would also make faces at the victims while testifying.
85
Ewing's grandmother was eventually barred from the courtroom after a handful of
instances when she "physically came after" a reporter, Miller, and Hyten. Hyten testified
that the accommodations that had to be made for the trial were unlike any she had seen
before in her 13 years of working with victims, and those accommodations were put in
place "because of the intense social media and in-person harassment that was being
reported." She recalled a time when she was walking J.M. out of the courthouse, and
members of Ewing's family called out "'here comes the hog train.'"
Miller agreed that "even if there wasn't direct testimony on it, the jurors were
addressed in voir dire about the social media problem" and said that everything
respondent said on the topic during trial was "appropriate and . . . true as far as
information that was known in court proceedings." Hyten testified that respondent even
"requested that there be a statement of perjury included on the jury's questionnaire,
because . . . [of] concerns of people falsifying information on their jury questionnaires in
order to get on the jury or denying knowing the family at all." Hyten also recalled a lot of
dialogue about the victimization on social media during jury selection. She stated that
"the context and importance and impact of social media started in jury selection . . . and
was relevant, and clear, throughout the whole trial." Even Ewing's defense counsel
acknowledged the intense media situation in her closing argument when she referred to
the "media storm."
We find that the more complete picture developed by the hearing testimony
revealed the intensity of the circumstances surrounding the trial and highlighted the
common understanding that would have existed among those present. Respondent's
comment did not violate KRPC 3.4(e) because her statement was made with a reasonable
belief that the comment was appropriate in light of the circumstances. KRPC 1.0(j).
86
Next, the panel found respondent violated KRPC 3.4(e) by misstating conflicting
evidence when she asserted: "With [J.M.] you have to decide whether they had sex or
not. If they did, it could not have been consensual."
The Court of Appeals found that this statement was error, because the
"wording of her assertion . . . impl[ied] a certain and foregone conclusion: if the jury
concluded that Ewing and J.M. had sex, then it 'could not' have been consensual.
Although Ewing did not assert consent as a defense—he maintained that he could not
remember the events of the night in question—it was a misstatement for the prosecutor to
inform the jury that if any sexual acts occurred that night, they were as a matter of fact
nonconsensual." 2019 WL 1413962, at *36.
At the hearing, however, Miller testified that she thought this statement was a
reasonable inference because J.M. said that the sex was not consensual, and Ewing
affirmatively maintained that they did not have sex at all—or, if they did, he could not
remember it. In any of the possible scenarios presented to the jury, then, consent would
be impossible. K.S.A 2020 Supp. 21-5503(a)(2) defines "rape" as "[k]nowingly engaging
in sexual intercourse . . . when the victim is incapable of giving consent because of . . .
the effect of any alcoholic liquor . . . ." Considering the facts of the case and the language
of the rape statute, respondent's statement was a correct statement of the law.
The panel determined that "respondent's statement lacked evidentiary support."
But respondent's statement did not actually "lack[] evidentiary support," rather, again the
issue came with the way that respondent characterized the evidence. We find respondent's
statement did not violate KRPC 3.4(e).
87
Finally, the panel found that respondent violated KRPC 3.4(e) by stating that
Ewing "abused a person with autism" as it "was not supported by the evidence." We first
note that many of the identified problems in the Ewing trial only arose because of the
district court's admission of the pornography. Several of respondent's statements that the
panel found inflammatory are statements she made about the admitted pornography. But
because the evidence was admitted by the district court, respondent was free to comment
on it. In her closing, respondent specifically mentions the titles of the various
pornographic films admitted by the district court. Those titles were clearly visible to the
jury while each clip was played. This context is important for understanding the
respondent's statements that otherwise would seem utterly shocking and inflammatory. In
other words, "Fist-Fucked and Double-Donged for Days," "Too Drunk to Fuck," and
"Autism Abuse," among others, are all references to the titles of the admitted
pornographic films that Ewing allegedly viewed.
Respondent's full statement was as follows:
"Now, Malick told you that he found, 'Pimp works over one of his hoes and she
takes a rough and mean pounding.' That's not something that people watch unless they
enjoy violence against women. Now, Malick told you that on the Christie Wett story the
defendant watched that, he stopped what he was watching, he researched Christie Wett,
she is a porn star, and then found something he liked, because he went back to the,
"Christie Wett, Prison Story," and watched some more. 'Fist-fucked and double-donged
for days,' now, the defense says this is all smoke. It's not smoke, it's evidence of an
attitude of what—of how you treat women. 'I love rough porn,' yes, he does. Too drunk to
fuck, yes, he does. Autism abuse, yes, he does. Drunken sex gone wrong, he sure does.
"Now, Malick found this that he picked out, he chose to watch, and it's, "Crave
the other side of sexuality." Dominating, humiliating or forcing submissive behavior with
violence, it's what these ladies have told you happened to them. Advertises the most
88
extreme brutal porn online, his pastime; advertises 'Your one-stop shop for all your abuse
needs,' his pastime. Unconscious women being raped and sodomized is what you see and
what he chose to do with his spare time. Sound familiar?
"These porn sites where rape scenes are being reenacted, women are being
slapped, strangled, overpowered, having their hair pulled, their hands held behind their
back and a dildo used on them, sound familiar? He chose this violent porn. The path he
chose on his phone—while we might go to Neiman Marcus, while we might go to Wal-
Mart, while we might go to Bing and see the daily picture, he chose paths to violent porn.
Now, he did that because he watched what he did and he did what he watched. If you
watch violent porn, that does not mean you rape, but if you watch violent porn and every
other piece of evidence in this case is considered, then that's strong evidence of the
rapes."
At another point in closing, respondent also stated:
"Only thing that makes sense from the evidence is that the defendant is guilty. [J.M.],
when she testified, was asked to put the date on a picture and [J.M.] asked, 'What number
is June?' [J.M.] is a low-functioning young woman, and the defendant likes to watch
autism abuse pornography."
The Court of Appeals stated that there "was no evidence that J.M. was 'a low-
functioning young woman,' whatever that means. This statement was prosecutorial error.
It also appears likely that this statement—immediately followed by a reference to 'autism
abuse'—was made to inflame the passions of the jury, which is also error." 2019 WL
1413962, at *35. The Court of Appeals seems to make clear that its main problem was
with the admission of the "Autism Abuse" film in the first place, noting that "this
particular disturbing video had no probative value to prove the charges against Ewing";
"[e]vidence that purports to show the sexual abuse of an autistic woman is irrelevant to
any material fact at issue, and it merely serves to inflame the jury by implying that Ewing
was sexually aroused by the abuse of a vulnerable individual"; and describing the video
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as a "glaring problem[]" because "there was no evidence that the victims in this case were
autistic." 2019 WL 1413962, at *24. The Court of Appeals found that respondent
"compounded" this error by making improper statements to inflame the jury by
"[i]mplying—with no evidentiary basis—that J.M.'s assault was related to Ewing's
enjoyment of watching pornographic 'autism abuse' . . . ." 2019 WL 1413962, at *38-39.
But the district court's order expressly permitted admission of video clips that
"showed acts Ewing was accused of doing to his victim." (Emphasis added.) 2019 WL
1413962, at *19. And there was abundant testimony at the hearing about J.M.'s cognitive
difficulties that were very visible to the jury. Again, even defense counsel freely
commented on those difficulties by calling J.M. "intellectually slow." Given these facts,
we find that the panel's conclusion that respondent violated KRPC 3.4(e) is not supported
by clear and convincing evidence.
G. The panel's finding that respondent violated KRPC 8.1 based on statements
she made during the disciplinary investigation is supported by clear and
convincing evidence.
KRPC 8.1 (2021 Kan. S. Ct. R. 424) provides that "a lawyer in connection with
. . . a disciplinary matter, shall not . . . knowingly make a false statement of material fact;
or fail to disclose a fact necessary to correct a misapprehension known by the person to
have arisen in the matter . . . ." The hearing panel found that respondent intentionally
made false statements of material fact during the disciplinary investigation, based on her
written response to the initial complaint and in her sworn statement.
Respondent's argument that "actual" knowledge is required to support a KRPC 8.1
violation falls flat given that we have stated "[a]lthough an attorney's motives and
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intentions might be relevant as aggravating or mitigating factors when considering
appropriate discipline, proof of intent or motive is not necessary to establish a violation
of KRPC 8.1." In re Lober, 276 Kan. 633, 640, 78 P.3d 442 (2003).
We conclude that the finding that respondent violated KRPC 8.1 is supported by
clear and convincing evidence, because at the hearing, respondent when asked "when was
the first clue" she had that she "might be wrong" on the PFA issue answered that it was
"[a]t oral arguments." But respondent made a sworn statement—on July 24, 2018, after
we released the Chandler opinion on April 6, 2018—where she testified:
"Q. So, let me make sure I'm comprehending your position correctly, you—you're saying
that you had a reasonable belief based on your conversations with Detective Volle, and
with others, especially associated with the decedent's family, that a PFA existed?
"A. Well absolutely. I believe as I sit here in front of you today it exists.
"Q. Okay. And so the Supreme Court calls this a misstatement, and, 'um, says that that's
not true. Is—is there anything else that you wanted to sort of add to that answer to
directly address what the Supreme Court holds?
"A. Yeah. The Supreme Court meant well, but they got it wrong, 'um, there is a PFA."
(Emphases added.)
She further testified:
"Q. Okay. And the—I want to close this chapter by giving you the opportunity to respond
to, I guess, two lines of the Supreme Court decision. On page 25 is where I am. 'In its
initial briefing, the state brazenly wrote, "While defendant proclaims there was no
protection from abuse order, the record shows otherwise."'
"A. Yeah.
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"Q. 'Um, 'The state further represented in its brief [M.S.] was granted a protection from
abuse order in 1998. These statements were not true.'
"A. They are true.
"Q. 'Um, the—so to me there's two separate, 'um, representations being made in the first
two sentences. 'Um, the second sentence that begins, 'The state further represented in that
brief, "[M.S.] was granted a protection from abuse order in 1998."' 'Um, and you believe
that to be true?
"A. Still do." (Emphases added.)
The panel's finding that respondent violated KRPC 8.1 by making a false
statement during her disciplinary investigation is supported by clear and convincing
evidence given the stark contrast between her sworn statement and her testimony before
the hearing panel.
H. The panel's finding that respondent violated KRPC 8.4(c) is supported by
clear and convincing evidence.
KRPC 8.4(c) (2021 Kan. S. Ct. R. 427) provides that "[i]t is professional
misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]" The panel found that respondent engaged in conduct that involved
dishonesty when she argued the existence of the PFA order before the jury, and that she
"repeated that dishonest conduct when she included similar statements in the State's
initial appellate brief, during oral argument, in her written response to the initial
complaint in the disciplinary investigation, and during the sworn statement."
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Respondent displayed dishonest conduct when she misrepresented to this court
that M.S. had obtained a PFA order, even though she ultimately—after persistent
questioning by our court—admitted that no such document existed. Moreover, as we
stated above, clear and convincing evidence supports a finding that respondent made
dishonest statements during the investigation into her conduct based on the timing of her
statements and her contradictory testimony. Namely, during her sworn statement made a
few months after we released the Chandler opinion, she brazenly stated that this court
"got it wrong" and emphasized that a PFA did exist. This, of course, does not square with
her admission to the hearing panel that she started doubting the existence of the PFA
during oral arguments.
We therefore conclude the panel's finding that respondent violated KRPC 8.4(c) is
supported by clear and convincing evidence.
I. The panel's finding that respondent violated KRPC 8.4(d) is supported by
clear and convincing evidence.
KRPC 8.4(d) (2021 Kan. S. Ct. R. 427) provides that "[i]t is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration
of Justice[.]" KRPC 8.4(d) includes any conduct that injures, harms, or disadvantages the
justice system. In re Kline, 298 Kan. 96, 121, 311 P.3d 321 (2013); see In re Hawver, 300
Kan. 1023, 1035, 339 P.3d 573 (2014) (respondent significantly prejudiced the
administration of justice by incompetently representing a capital defendant which led to a
reversed capital murder conviction).
The panel found that respondent violated this rule based on many instances of
conduct across the Chandler and Ewing trials as explained above. From the Chandler
trial, the panel cited: the PFA, the five-minute phone call, Nebraska exit theory, internet
searches, Chandler thinks she is smarter comment, reference to the gallery, and the
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robbing children of their father comment. In the Ewing trial, the panel cited the "low
functioning" and branding comments, the reference to autism abuse pornography, the
social media attacks, and the comment that Ewing abused a person with autism.
We disagree that the robbing children of their father comment constituted a KRPC
8.4(d) violation. As we described above, not all improper or erroneous acts of a
prosecutor constitute misconduct, and an isolated incidence of mere negligence cannot
support a finding that an attorney is incompetent. Accordingly, this comment did not
constitute a KRPC 8.4(d) violation.
The remaining instances of misconduct in the Chandler trial—i.e., the references
to the PFA, the five-minute phone call, the Nebraska exit route, the defending against
murder searches, the Chandler thinks she is smarter comment, and the reference to the
gallery—reveal a repeated pattern of misconduct resulting in significant prejudice.
Viewing the respondent's conduct as a whole, we find clear and convincing evidence
supports the panel's finding that respondent's conduct violated KRPC 8.4(d).
We base this conclusion only on respondent's conduct in the Chandler trial. We
disagree with the panel that respondent's conduct in the Ewing trial violated KRPC
8.4(d). The fuller picture of the circumstances surrounding the Ewing trial, as presented
by several witnesses before the hearing panel, convinces us that the panel's findings
regarding respondent's conduct in that trial are not supported by clear and convincing
evidence. While we will not rehash each individual instance that the panel found
constituted a KRPC 8.4(d) violation, as those instances have already been discussed at
length above, we will briefly evaluate the one final additional finding from the Ewing
trial that we have not yet discussed.
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The panel found that respondent violated KRPC 8.4(d) based on her comment that
the victims had "been branded" as it was "designed solely to inflame the jury's passions
and prejudices." However, a fuller picture of both parties' closing arguments clarifies why
respondent would have made those comments, for reasons that stretch beyond an intent to
inflame the jury.
Before respondent made the comments at issue in her rebuttal, defense counsel
first repeatedly suggested that the victims were lying and made quite inflammatory
remarks that—dare we say—sound a whole lot like an attempt to brand the victims. For
example, she stated that J.M.'s account of the rape was fabricated, because if her story
was true then "her face would have showed it." She also declared that "[i]t is not difficult
to get up here and repeat a story about terrible things happening to you when there's no
one to contradict you." She also speculated that perhaps M.W. made up the rape story
because "she was looking for new meds" or "maybe she was looking for more attention."
Defense counsel also called J.M. "intellectually, a little bit slower," and was quick to
remind the jury of J.M.'s physical stature—"[s]he's a tall girl, she's a broad-shouldered
girl. She can take care of herself." She also said that J.M.'s allegation was "unfounded"
because she did not have "the face of a beaten woman." And lastly, defense counsel
stated:
"[J.M.] claims that she was anally raped and then that penis was immediately put in her
mouth, and the State points out how awful that is. And when I was asking her about what
she had done prior to going to the hospital, 'Did you shower? Did you eat? Did you
change clothes'—I asked her if she brushed her teeth and she looked at me like that was a
really stupid question and said, 'I don't know.' Well, I submit to you that if you were in
that situation and someone had anally raped you and then forced you immediately to
perform oral sex, one of things you darn tootin' would know is whether or not you
cleaned your mouth, because I'm reckoning that's one of the first things that you would
want to do. That would be of your utmost concern." (Emphasis added.)
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Based on this slew of comments made by the defense, Hyten testified that in her
view, it was "relatively clear that the primary objective of the defense, or at least one of
them, was to brand these victims." And expert witness Dr. Julie Allison had testified at
trial that victims are often reluctant "to report sexual assault because of the fear of being
blamed, the fear of reprisal, and the stereotypes of what causes rape." 2019 WL 1413962,
at *11. Importantly, it was only after these comments by the defense that respondent
stated in rebuttal:
"Are these gals looking for attention? The only attention they've got in this case is
negative attention. [The victims] were described as passive, shy. They're not looking for
attention. There's pictures of [J.M.]'s vagina put into evidence. Anybody want that
attention? Dr. Allison talked to you about women do not report because they don't want
the attention. This is a scarlet letter, is what this case is about, and the scarlet letter is
simply this, that these three women have been branded. In the public and social media
they've been branded, and nobody seeks out that type of attention. The ugliness that has
been directed towards these women can be taken into consideration for you when you
decide whether or not you believe their testimony."
This statement, when viewed in context—i.e., immediately after the defense
labeled the victims as attention seekers whose body types are not the type that can
physically be raped, and that in any event, J.M.'s story must be fabricated because there is
no way someone could have been brutally raped and sodomized if they could not
remember when they brushed their teeth—seems to be an attempt on respondent's part to
rebut the labels defense counsel placed on the victims. The defense's comments surely
provide an obvious example of the type of attention and "branding" that rape victims do
not want.
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Despite our finding that respondent's conduct did not violate KRPC 8.4(d) in the
Ewing trial, we still conclude that respondent's repeated patterns of misconduct in the
Chandler trial clearly and convincingly support the panel's finding that respondent
violated KRPC 8.4(d) by engaging in conduct prejudicial to the administration of justice.
II. Respondent's patterns of serious misconduct and dishonesty warrant disbarment.
The final issue before us is determining the appropriate discipline to impose based
on respondent's misconduct. The Disciplinary Administrator recommended to the
panel—and maintains in his brief—that respondent should face indefinite suspension.
The panel recommends that respondent be disbarred. Respondent recommends that she
should receive no discipline.
"We base our disciplinary decision on the facts and circumstances of the
violations and the aggravating and mitigating circumstances present. In re Johanning,
292 Kan. 477, 490, 254 P.3d 545 (2011). And although not mandated by our rules, this
court and disciplinary panels '[h]istorically' turn to the American Bar Association
Standards for Imposing Lawyer Sanctions to guide the discipline discussion. . . .
"Under that framework, we consider four factors in assessing punishment: (1)
the ethical duty violated by the lawyer; (2) the lawyer's mental state; (3) the actual or
potential injury resulting from the misconduct; and (4) the existence of aggravating and
mitigating circumstances. ABA Standard 3.0. [Citations omitted.]" Kline, 298 Kan. at
213.
ABA Standards for Imposing Lawyer Sanctions sections 9.22 and 9.32 list
aggravating and mitigating factors to be considered. Of these, the panel found that the
following aggravating factors existed: (1) prior disciplinary offenses; (2) pattern of
misconduct; (3) multiple offenses; (4) submission of false evidence; (5) false statements
or other deceptive practices during the disciplinary process; (6) refusal to acknowledge
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wrongful nature of conduct; and (7) substantial experience in the practice of law. The
panel also identified the following mitigating factors: (1) present and past attitude of
the attorney as shown by her cooperation during the hearing and her full and free
acknowledgment of the transgressions; (2) previous good character and reputation in the
community including any letters from clients, friends, and lawyers in support of the
character and general reputation of the attorney; (3) remorse; and (4) remoteness of prior
offense.
The evidence in this case demonstrates a serious pattern of grossly unethical
misconduct. "A prosecutor has the responsibility of a minister of justice and not simply
that of an advocate. This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence." KRPC 3.8 cmt. 1 (2021 Kan. S. Ct. R. 395). Respondent failed in
her obligation to act as a minister of justice in her prosecution of Dana Chandler. She
ignored the order of a district court, repeatedly made arguments to the jury that lacked
any evidentiary support, intentionally lied to this court in her briefs and in oral
arguments, and made false statements during the disciplinary investigation.
After carefully considering the findings, conclusions, recommendations, and the
ABA Standards for Imposing Lawyer Sanctions, we find that respondent's intolerable
acts of deception warrant the severe sanction of disbarment.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Jacqueline J. Spradling is disbarred from the
practice of law in the state of Kansas, effective on the filing of this opinion, in accordance
with Supreme Court Rule 225(a)(1) (2021 Kan. S. Ct. R. 275) for violations of KRPC
3.1, 3.3(a)(1), 3.4(c), 3.4(e), 8.1, 8.4(c), and 8.4(d).
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IT IS FURTHER ORDERED that the Office of Judicial Administration strike the name
of Jacqueline J. Spradling from the roll of attorneys licensed to practice law in Kansas.
IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 231 (2021 Kan. S. Ct. R. 286).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
***
WILSON, J., dissenting: Jacqueline Spradling is one of the most skilled,
successful, and expert trial attorneys in this state. Today, we accept the panel's
recommendation to take away her profession by disbarment, our most serious
punishment, for ethical violations. Notably, we accept that recommendation even
after we have discarded for lack of sufficient evidence many of the panel's most serious
findings. Even considering all of the panel's findings, including those we now do not
consider, the Disciplinary Administrator only recommended the lesser punishment of
indefinite suspension.
Oh, Spradling did make mistakes, and those mistakes were serious and costly.
They caused reversals of convictions for murder and rape. But we also know some of
Spradling's mistakes were based in part on mistakes made by other professionals who
were honest and highly skilled.
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Let's examine the nature of Spradling's mistakes. As summarized by the majority,
she "ignored the order of a district court, repeatedly made arguments to the jury that
lacked any evidentiary support, intentionally lied to this court in her briefs and in oral
arguments, and made false statements during the disciplinary investigation." In re
Spradling, 315 Kan. ___, ___, ___ P.3d ___ (2022), slip op. at 98. Defiance of a district
court order might deserve admonition, and arguments lacking evidentiary support may
lead to a reversal of conviction, but disbarment? Doubtful, especially when, as here, there
appears to be some basis for Spradling's arguments to the jury, though not found in the
record.
The most serious of the panel's findings relate to Spradling's acts of intentional
falsehood. Acts of intentional falsehood are always serious. It is worth recognizing,
however, those acts found by the panel, and those acts for which we find clear evidence,
relate to Spradling's refusal to concede that she had ever intentionally lied—not to the
jury, not to the panel, and not to this court. So she lied by insisting she hadn't.
Spradling does concede she is guilty of stubborn pride. But the sins of pride and
stubbornness are not mentioned in the disciplinary code. As her counsel describes, she
has been hoisted on her own petard because of those sins. Clearly, Spradling's stubborn
pride made her too confident and too comfortable with the risks she was taking. They
undid her hard work. And more.
We lawyers and judges police our ranks, and for that we should be proud. This
court has the responsibility to examine and judge the wrongs done by those in our
profession. And if those wrongs violate our demanding codes of ethics the violators
should be punished. There is evidence sufficient to support findings that Spradling
committed ethical violations.
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I believe we have inadequately appreciated the reasons Spradling's mistakes
happened, and I am convinced we have punished too harshly.
I respectfully dissent from the majority's choice of discipline.
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