Legislators have a responsibility to fully fund Kansas public defenders, and here’s why

February 1, 2022 2:30 pm

Heather Cessna, executive director at Kansas State Board of Indigents’ Defense Services, testifies before the Senate Ways and Means Subcommittee on General Government on Monday. (Kansas Reflector screen capture from Kansas Legislature YouTube channel)

Perhaps Kyle Flack deserved that guilty verdict in his death penalty murder case. Perhaps he didn’t. Regardless, the account of his trial shared with the Kansas Supreme Court on Monday sounds like an appalling miscarriage of justice.

That matters for anyone in this state who cares about the Constitution.

Flack’s current attorney, Clayton Perkins, said the trial  judge “refused to provide the appointed defense attorney more time to prepare for trial,” according to Kansas Reflector Editor Sherman Smith. “The attorney already had been assigned 30-50 other active cases and had no prior experience with a homicide case. He wasn’t finished reviewing evidence, had no time to complete his own investigation and didn’t prepare a strategy for the penalty phase.”

Look, death penalty cases can be difficult to stomach. This one is no different. Three adults and a toddler were slain, and the toddler’s body was zipped in a suitcase found floating in a creek.

Kyle Flack was convicted in the 2013 deaths of three adults and a toddler in Franklin County. (Kansas Department of Corrections)

Yet brutal as the case may be, everyone in our country has the right to a fair trial. That includes the right to a competent, vigorous defense. While Flack may be guilty of heinous crimes against those he shared an apartment with, Perkins raised serious questions about evidence against him and the interrogation process. That’s vigorous lawyering of the type Flack deserved on his first go-round, not during an appeal to the state’s highest court.

On the same day that Perkins made his case to the Kansas Supreme Court, another kind of case was being made to the Senate Ways and Means Subcommittee on General Government.

Heather Cessna, executive director at Kansas State Board of Indigents’ Defense Services, was explaining her group’s budget request. It wants to pay public defenders more, invest in training and add 100 new full-time positions.

“Just this morning in the Kansas Supreme Court argument, in one of our capital cases, an issue about the appropriate staffing and caseloads came up as one of the issues in that appellate argument,” she told subcommittee members. “I mean, this is a very real problem that we need to address very proactively.”

Cessna made the point that as prosecutors across the state level felony charges, our state government has a responsibility to fund the defense of those who can’t afford it. With 85% of felony defendants unable to pay, the need won’t go away.

The subcommittee voted to send the budget request onto the full Senate Ways and Means Committee. That’s a good start. Members should read about Flack’s case and ask themselves if Kansas can endure more embarrassment.

Conservatives love to boast about their toughness on crime. They also love to declare their devotion to our country’s Constitution. If they seriously believe in both of these principles, they have a duty to fully fund Kansas public defenders and their work. Otherwise, convictions against those who may well be guilty will be tainted and possibly overturned. The innocent may suffer wrongful imprisonment or worse.

As former judge Steve Leben wrote for Kansas Reflector in November 2020: “Constitutional rights aren’t secure to any of us if they aren’t available to all of us. So one of the most critical roles in our criminal justice system is that of defense attorneys: They make sure that the rights we all share are protected.”

Justice isn’t a conservative or liberal value. It’s a human one.

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Clay Wirestone
Clay Wirestone

Clay Wirestone serves as Kansas Reflector's opinion editor. His columns have been published in the Kansas City Star and Wichita Eagle, along with newspapers and websites across the state and nation. He has written and edited for newsrooms in Kansas, New Hampshire, Florida and Pennsylvania. He has also fact checked politicians, researched for Larry the Cable Guy, and appeared in PolitiFact, Mental Floss, and cnn.com. Before joining the Reflector in summer 2021, Clay spent four years at the nonprofit Kansas Action for Children as communications director. Beyond the written word, he has drawn cartoons, hosted podcasts, designed graphics and moderated debates. Clay graduated from the University of Kansas and lives in Lawrence with his husband and son.