Kansas pays $133,000 to former inmate unlawfully subjected to Reno County judge’s wrath

Wrongfully convicted man of contempt after refusing to testify at a trial

By: - October 27, 2021 9:55 am
Dennis Depew, deputy attorney general and chief of the civil litigation division, said the state owed $133,000 to a man unlawfully convicted of contempt of court in Reno County but served 631 days in jail for the offense. (Screen capture/Kansas Reflector)

Dennis Depew, deputy attorney general and chief of the civil litigation division, said the state owed $133,000 to a man unlawfully convicted of contempt of court in Reno County but served 631 days in jail for the offense. (Screen capture/Kansas Reflector)

TOPEKA — The state of Kansas owes $133,000 to a man wrongly convicted of contempt of court and ordered by a Reno County judge to serve a nine-year prison sentence for refusing to risk self-incrimination by testifying at the murder trial of a co-defendant in Hutchinson.

Jose Delacruz, 40, had been convicted of aggravated robbery but acquitted of murder in the beating and strangulation death of a man in 2010. The district attorney and judges expected him to testify against a co-defendant accused of murder, but on advice of his lawyer he invoked his Fifth Amendment constitutional right to remain silent.

“The judge was irritated with that and the county attorney brought criminal contempt charges against him for failure to testify,” said Dennis Depew, deputy attorney general and chief of the civil litigation division.

A judge in Reno County found him guilty of contempt of court and imposed a 108-month sentence to run consecutively with an 83-month term on the aggravated robbery conviction.

Delacruz appealed the contempt ruling, but the Kansas Court of Appeals affirmed his conviction and sentence. Subsequently, the Kansas Supreme Court overturned Delacruz’ conviction for contempt because prosecutors failed to provide him with sufficiently broad immunity to protect his right against self-incrimination. He was released by the Kansas Department of Corrections in 2018.

Depew said Delacruz served the aggravated battery sentence and 631 days of the contempt sentence. For the extra time in prison on the wrongful conviction for contempt, Depew said Delacruz would be paid $123,000 and receive one year of state health insurance benefits and a college tuition waiver. Delacruz also qualified for $10,700 to pay for attorney fees.

The financial award was made public Tuesday when Depew outlined the settlement for members of the State Finance Council, which includes Gov. Laura Kelly and partisan leaders of the House and Senate.

Delacruz was originally charged with felony murder in the 2010 incident in which Joshua Haines was killed during a robbery involving Delacruz and four other people, including Anthony Waller. After the jury convicted Delacruz of aggravated robbery, then-Reno County District Attorney Keith Schroeder subpoenaed him to be a witness at Waller’s murder trial.

When Delacruz invoked his right against self-incrimination, he told then-District Court Judge Timothy Chambers that his aggravated robbery conviction was on appeal and the offer of limited immunity from the district attorney didn’t shield him from federal prosecution.

In 2011, Chambers issued an order to compel Delacruz to testify and brought Delacruz into court three times in an unsuccessful effort to persuade him to cooperate. Waller was convicted of first-degree murder and aggravated kidnapping without Delecruz’ testimony.

Delacruz prepared to stand trial for contempt with Judge Joseph McCarville presiding. He pled not guilty to the charge. After McCarville denied Delacruz’ motion to dismiss the contempt action, the defendant waived his right to trial. McCarville included in the court record his reasoning for throwing the book at Delacruz.

“His refusal was unlawful, was willful, was intention and felonious and occurred here in Reno County in this court,” McCarville said. “The court finds the defendant is guilty.”

Delacruz proposed a six-month sentence, but McCarville handed down the 108-month sentence to run consecutively with the separate 83-month sanction.

“This is not a case where we’re talking about somebody not taking their hat off or saying a bad word or not standing to address the court or interrupting another attorney,” McCarville said. “What we have in this case is an attack against the whole, the very essence of the judicial process.”

He said the judicial system had the right to compel testimony from people with relevant and admissible evidence in a case. The judge’s job, he said, was to determine what sentence was sufficient to convince reluctant witnesses to take the stand.

“It certainly has to be a number of years,” McCarville said. “I don’t have anything to suggest that any sentence less than 108 months would be sufficient.”

In 2015, the Court of Appeals affirmed the contempt conviction and the sentence, which amounted to a total of nearly 16 years.

However, the Supreme Court reversed the verdict in 2018 and noted “the power to compel testimony is not absolute,” and the most important exception to that authority was the Fifth Amendment to the U.S. Constitution defining the privilege against compulsory self-incrimination. That right also was included in the Kansas Constitution’s Bill of Rights.

The Supreme Court said Chambers’ order compelling Delacruz’ testimony at the Waller trial was unlawful. Likewise, the state’s highest court said McCarville’s order finding Delacruz in contempt and sentencing him to a 108-month prison term was unlawful.

McCarville remains a district court judge in Reno County. In 2020, Chambers retired from the district court and was replaced by Schroeder, the former district attorney for Reno County.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.