State’s highest court orders new trial with different judge in Reno County
BY: TIM CARPENTER
Kansas Reflector
TOPEKA — The Kansas Supreme Court unanimously ordered a new trial for a Hutchinson man because a Reno County District Court judge violated the defendant’s constitutional right to assistance of an attorney during a 2019 murder trial.
The justices found Judge Trish Rose’s order that defendant Brennan Trass had to assume responsibility for his own defense violated the 6th Amendment of the U.S. Constitution. Trass, 40, was accused of shooting to death Jose Morales during a 2015 methamphetamine transaction. It took more than three years to go to trial, in part, because 11 attorneys assigned to defend Trass were excused after clashing with Trass or due to a lawyer’s conflict of interest.
Rose, frustrated with pace of the case, issued an order that left Trass to defend himself at trial. He challenged that order in district court before he was convicted of felony murder in 2019 and subsequently through a direct appeal to the Supreme Court.
The Supreme Court decided Rose was wrong to declare Trass forfeited his right to a court-appointed attorney. In addition, the Supreme Court said Rose failed to advise Trass of the disadvantages of self-representation or to allow Trass an opportunity to modify his behavior to meet an acceptable standard.
The judge did have a standby attorney in the courtroom at trial, who was called upon at close of the trial when Trass asked to sit out the remainder of the proceeding in jail.
“The district court violated Trass’ right to counsel under the Sixth Amendment to the United States Constitution,” Justice Melissa Standridge said in the court’s opinion. “Because this violation constitutes structural error affecting the trial mechanism, we reverse his convictions for first-degree felony murder and criminal possession of a firearm and remand for a new trial before a different judge.”
The opinion said violation of the Sixth Amendment right to counsel was an issue of fundamental fairness and required automatic reversal of the conviction.
Meanwhile, the state Supreme Court established precedent in the opinion by declaring a defendant in Kansas could forfeit the right to counsel by engaging in extraordinary misconduct.
“Although we have never held as a matter of law that a criminal defendant in Kansas can forfeit the right to counsel through misconduct, we do so today,” the opinion said.
In doing so, the state appellate court said Trass’ conduct didn’t rise to the level necessary to warrant denial of counsel. The justices said Trass’ actions didn’t amount to egregious misconduct or a course of disruption designed to thwart judicial proceedings.
“Forfeiture is an extreme sanction in response to extreme conduct that jeopardizes the integrity or safety of court proceedings and should be used only under extraordinary circumstances as a last resort in response to the most serious and deliberate misconduct,” Standridge wrote.
Prior to trial in March 2019, the opinion said, Rose told Trass “that I’m finding that you have waived your right to appointed counsel by your conduct. I am finding that appointment of new counsel would be an exercise in futility.” She directed attorney Bobby Hiebert to be Trass’ standby counsel.
Reno County prosecutors filed a motion asking the judge to formally “advise the defendant of the pitfalls of representing himself.” At a subsequent pre-trial hearing, Rose declined to outline potential disadvantages of self-representation or explore Trass’ readiness to proceed in district court.
Before the trial started, Trass denied he forfeited or knowingly waived his right to counsel. He admitted to the shooting, but made the argument it was self-defense.
“Trass did not expressly waive his right to counsel, so he could only implicitly waive the right through conduct or by forfeiting the right,” the Supreme Court said. “A review of the record reflects Trass did not implicitly waive his right to counsel based on his conduct.”
The opinion also said: “The court’s failure to advise Trass about the disadvantages of self-representation — even after the state encouraged the court to hold a hearing to do so — precludes a finding that Trass knowingly, voluntarily and intentionally chose to relinquish his right to counsel.”
In another finding by the Supreme Court, the justices said the lengthy period between the 2015 homicide and the 2019 trial didn’t violate Trass’ right to a speedy trial.
The justices also said evidence presented at trial was sufficient to support the conviction of Trass on charges of felony murder and possession of a firearm. Originally, Trass was sentenced to more than 50 years in prison.