A judge on Thursday refused to order a new trial for a Wichita man who claimed he was convicted of second-degree murder because his lawyer failed to adequately prepare his defense.
Clyde Johnson argued in his motion for a new trial that court-appointed defense lawyer Casey Cotton visited him in jail only a handful of times before his jury trial last September.
“He allowed prosecutors to slam-dunk a murder conviction down my throat,” Johnson testified in his motion for a new trial.
Johnson, 51, was convicted of second-degree murder and attempted rape for attacking a brother and sister at an apartment house in the 600 block of North Topeka. Evidence at the trial showed that both victims passed out from drinking too much before they were attacked by Johnson on March 27, 2011. Wichita police said Johnson beat both victims with a 24-inch machine bolt.
Handwritten motions for new lawyers are among the most common motions filed in criminal cases in Sedgwick County District Court. Almost all of the motions are filed by inmates complaining that their lawyers have failed to visit them regularly in jail and failed to keep them informed of the status of their cases.
Cotton testified that he invested about 70 hours, counting court time, in his defense of Johnson. He took over the case after the preliminary hearing when a lawyer from the Sedgwick County Public Defender’s Office reported having a conflict in the case.
Cotton said an investigator spent more than 40 hours on Johnson’s case interviewing witnesses, reviewing reports and visiting the crime scene.
The Kansas Supreme Court has not addressed how much time a defense lawyer should spend defending a murder case. The court did rule that the 200 hours, including court time, that a defense lawyer spent in 2005 defending a capital murder case “fell woefully short.”
District Judge Terry Pullman, who presided at Johnson’s trial, said the 70 hours that Cotton put into the case provided Johnson with an adequate defense.
“With some cases, you don’t need to re-invent the wheel,” he said. “I don’t see how additional face-to-face time would have better prepared him for the case.”
As for the evidence against Johnson, Pullman said, “I don’t think ‘overwhelming’ is too strong a term for it.”
Cotton said he also visited Johnson in jail on the night before he was scheduled to testify at the trial. He said Johnson decided the next day not to testify.
“It sounds like the defendant got cold feet and he now regrets that decision, but that is not Mr. Cotton’s fault,” said Assistant District Attorney Justin Edwards, who prosecuted the trial.
Edwards said face-to-face contact in the jail is not a requirement for putting on a good defense.
“The obligation is not to hand-hold,” he said. “The obligation is to prepare a defense.”
A sentencing date for Johnson will be set next week.