By Sherman Smith
Kansas Reflector
Conflict raging within the state public defense agency has sidetracked a capital murder case while competing factions wrestle for control.
The internal fight playing out in state district court filings — set against a backdrop of personnel investigations, alleged retaliation, an effort to unionize, secret hirings, disputes about qualifications, a judge’s recusal and the firing of a decorated attorney by voicemail — chilled legal observers who say Brandon Barrett, the agency’s acting director, violated state law by meddling in the case.
“What makes it unusual is that the interim director has struck several disabling blows at his own agency,” said Eric M. Freedman, a distinguished professor at Hofstra University School of Law.
Barrett denied allegations and downplayed concerns about turmoil within the State Board of Indigent Defense Services, known as BIDS, that surfaced after former director Heather Cessna stepped down two months ago. She warned in a Kansas Reflector podcast that a constitutional crisis was inevitable because of systemic underfunding by state lawmakers.
Such a crisis is evident in the case of Kraig Kahler, who was sentenced to death for murdering his estranged wife, two daughters and grandmother-in-law in 2009 in Burlingame. With his conviction and sentence upheld on appeal, the case is at the stage where specialized attorneys examine constitutional issues, such as whether he previously received effective legal assistance.
But the case has been placed in the hands of first-year attorneys at BIDS who blamed their employer in court filings for failing to produce qualification standards for such cases or hire a qualified attorney to lead the case. They also asked the court to block Barrett from interfering with their work.
Even the Kansas Attorney General’s Office told the court that Kahler deserves better representation.
Barrett refused an interview with Kansas Reflector but responded to questions in writing. He asserted that his efforts to reassign attorneys didn’t amount to interference in the case.
“Every administration faces difficulties but I do not view this situation as embarrassing personally or as part of the agency,” Barrett wrote. “The BIDS attorneys believe they are doing the right thing. That’s laudable.”
The Kansas Supreme Court appointed retired Judge Merlin Wheeler to take over the case. Wheeler has summoned attorneys to a Monday hearing to figure out who should represent Kahler.
‘Untenable and retaliatory’
The Attorney General’s Office objected in July to allowing first-year attorneys Alisha Mehdi and Rebecca Halff to represent Kahler in his post-conviction appeals.
The two public defenders, who are part of what’s known as the Capital Habeas Office at BIDS, recognized they lacked the necessary experience to handle the case on their own. The problem, Mehdi told the court, was that BIDS had neglected its obligation to establish qualification standards for such cases and did not employ an attorney who would meet prevailing standards.
At the time, Tricia Rojo Bushnell — best-known for her work with the Midwest Innocence Project — was leading the office on a contract basis. She had the necessary experience with death penalty cases but wasn’t licensed to practice law in Kansas.
Bushnell bristled with frustration when she couldn’t get overtime approved for her overworked and understaffed office, then learned that Barrett had met in secret with a prosecutor — not a defender — in Nebraska to replace her as the office chief.
While Bushnell worked to find an outside attorney willing to work with the younger staff on the Kahler case, Barrett secretly reached a deal with Jason Belveal, of Holton, and Mark Henricksen, of Oklahoma, to take the reins instead.
Belveal’s Aug. 15 appearance in the court record blindsided the team that had been working on the Kahler case. And Henricksen falsely told the court he met with Kahler and received the client’s support. Henricksen would later blame that mistake on a paralegal.
The BIDS attorneys cried foul when they discovered Osage County District Judge Taylor Wine had held conversations with Belveal that were not part of the court record. Wine recused himself on Aug. 22.
Bushnell believed Barrett had created “an untenable and retaliatory work environment” that undermined her abilities to lead the office, as she wrote in a formal complaint on Aug. 17 to the BIDS board chair. The board chair forwarded the complaint to Barrett, who fired Bushnell in an Aug. 20 voicemail.
“The decision has been made to separate you from that employment at this time,” Barrett said in the voicemail, which Kansas Reflector obtained. “Since you don’t have benefits, there are no benefits to continue, and if you have any questions about retrieving any items or returning any information in your possession, please contact (the HR director). This is the final decision of the executive branch. Thank you.”
The feedback loop — where complaints about Barrett and the administrative office go to Barrett, who is also the agency’s chief counsel — is at the center of efforts by rank-and-file public BIDS employees to unionize.
Internal emails obtained by Kansas Reflector show the BIDS board recently authorized multiple investigations into undisclosed personnel matters at the agency.
Lindsie Ford, a senior assistant public defender, said in an interview that a union is necessary to stem widespread fears of retaliation.
“You have to go to the people you have concerns about with your concerns and just hope for the best,” she said. “It’s not creating an environment where people feel safe.”
Ford said she was afraid she would face retaliation for agreeing to be interviewed for this story.
‘Devastating, chilling effect’
Ron Wurtz, a former BIDS board chair, and Rebecca Woodman — two attorneys with decades of experience in death penalty cases — separately wrote the current board to express concerns with Barrett and the Kahler case.
They believed Barrett’s actions violate a state law that prohibits BIDS administrators from interfering in cases.
“The summary dismissal of Ms. Bushnell for efforts to help her office to represent their client is chilling further zealous efforts on behalf of other clients,” Wurtz wrote. “I have spoken to a number of BIDS lawyers, including chief public defenders, who have expressed this sentiment. Several expressed the fear that, if this interference with representation continues, they will be forced to walk away from the law’s highest calling — defending life and freedom.”
Woodman wrote that Barrett’s actions created the risk of “a devastating, chilling effect on the ability to render the effective assistance of counsel, no matter how qualified.” Because the stakes are highest in a capital case, she wrote, the result “can literally mean the difference between life and death.”
Both were among nine individuals who asked to speak at the Sept. 5 meeting of the BIDS board in Topeka. They waited for hours while the board met in secret to discuss unexplained personnel matters. Then, with no public discussion, the board approved contracts for Belveal and Henricksen to take over the Kahler case.
Those who signed up to talk were granted 90 seconds apiece at the end of the board meeting. Ford wasn’t happy about the time restriction.
“I have to say, I can’t think of anything more appropriate than being given 90 seconds to address the concerns that we have outlined,” Ford told the board, in frustrated irony.
Four individuals who signed up for public comment were there to voice support for Barrett. They included Sarah McKinnon, who leads the Sedgwick County public defender office.
“I hate to see what’s going on here,” McKinnon said. “This is not what public defenders do. We don’t fight with each other. We are here supposedly for a common purpose, and that’s putting the client first. And I’m really deeply disappointed that that seems to be getting lost here.”
During the meeting, Barrett announced that Bushnell — the office chief he fired by voicemail — had left the agency to take a new job, and he wished her well. After the meeting, Barrett agreed to talk with Kansas Reflector. A few days later, he said he would only have time to respond to questions in writing.
Barrett asserted in his answers that it was appropriate to fire someone by voicemail, and that “reassigning a case is not interference.” He said he reassigned the case because Mehdi indicated in a court filing that she was not qualified to represent Kahler.
Barrett is one of three candidates who have had private interviews with the BIDS board for the director position. Ann Sagan, director of special projects at BIDS, and Clayton Perkins, the chief capital appellate defender, are the other candidates.
The board chair, Washburn University law professor Michelle Ewert, notified BIDS staff in an Aug. 29 email that the decision to hire a new director has been placed on hold “while an investigation involving confidential personnel matters is pending.”
‘Publish your damn story’
Kahler sent a handwritten note to Wheeler, the retired judge who has taken over the case, to “express my frustration” with the situation.
“I have a constitutional right to qualified and effective counsel and there have been many conversations about my representation outside of the courtroom and without informing me or informing my current representation,” Kahler wrote.
Mehdi, one of the young attorneys working the Kahler case, filed an emergency motion Aug. 29 asking the court to stop her employer from interfering. She said in her filing that Barrett had ordered the attorneys to leave the case, even though Kahler wanted them to remain.
Wheeler ordered all of the attorneys involved to attend a Zoom hearing Monday to sort out the mess.
Belveal and Henricksen, meanwhile, tried to meet with Kahler at the El Dorado Correctional Facility, but Kahler refused.
Freedman, the Hofstra University professor, helped inform the American Bar Association guidelines for capital defense work and is considered an expert in post-conviction death penalty cases. He said “we will all listen with interest” to Monday’s hearing to see what Wheeler does.
An experienced judge, Freedman said, could repair the self-inflicted damage to Kahler’s constitutional right to quality legal assistance by appointing a new attorney free from all the BIDS drama.
“It is solvable, but the judge has to be fully aware of the situation and intervene to solve it, which is one reason I wish you’d publish your damn story before that hearing,” Freedman said.
The U.S. Constitution guarantees defendants the right to effective and qualified legal counsel, and 84% of adult felony cases in Kansas require public defenders, according to the most recent BIDS annual report.
Ford said their job is to “protect the constitution, which, first of all, keeps everybody safe.” She rejected the public perception that “maybe there are some people who are less deserving of rights because we have decided that they are not good enough people.”
“It’s not about, necessarily, Kraig Kahler or your individual thoughts on him,” she said. “Every single one of the people in Kansas needs fair and just access to the criminal justice system. You need the protections that exist in the constitution.”
