Last week, the Kansas Court of Appeals sternly criticized a Sedgwick County prosecutor, saying he fabricated evidence against an accused sexual predator.
This week, the District Attorney's Office found the evidence.
Where was it? In the case file at the Court of Appeals in Topeka.
"The bottom line is, it's in there," District Attorney Nola Foulston said Thursday.
The office of Kansas Attorney General Steve Six asked the Court of Appeals to reconsider its ruling in light of the proven existence of the evidence.
Last Friday, the Court of Appeals had reversed a jury's decision to keep Robert C. Ontiberos confined to indefinite treatment as a predator as allowed by Kansas law.
Although the Court of Appeals may not change its ruling, Foulston said prosecutor Marc Bennett can rest assured that he didn't make up evidence that Ontiberos made a shank while in prison.
A prison record showing Ontiberos fashioned a homemade weapon in prison from a pen and duct tape was found among 3,600 pages of exhibits that were sent to the court as part of the record on appeal.
In its ruling last week, the court said Bennett had falsified the record.
In asking the court to reconsider, Assistant Attorney General Kristafer Ailslieger provided a copy of the prison disciplinary report in a legal pleading filed Thursday afternoon.
"Thus, the prosecutor in this case did not manufacture non-existent evidence to use against Ontiberos, and did not commit the misconduct found to be so egregious by the Court," Ailslieger wrote in a motion for rehearing.
Ailslieger admitted that lawyers on both sides contributed to the confusion.
After the trial in 2008, Ontiberos' lawyer could not find the disciplinary report in the 3,000-plus pages of records.
During a subsequent hearing, Bennett was asked to produce the record. He couldn't find it either.
"And being the gentleman he is, he said he must have been mistaken," Foulston said.
But the record was there and was shipped to Topeka as part of the record on appeal.
The record remained in Topeka, and lost, until the file was returned to Sedgwick County. After Foulston ordered the records double-checked, prosecutors found the record this week.
Ailslieger asked the court to at least change its opinion to correct its error about Bennett's conduct.
"Mr. Bennett's personal and professional reputations have been seriously tarnished by this error and he and the Office of the District Attorney.. have been unjustly disparaged in the public media," Ailslieger wrote in the motion.
Ontiberos was convicted of attempted rape in 1983 and aggravated sexual battery in 2001.
When Ontiberos came up for parole, prosecutors sought to confine him to a state mental hospital under the Kansas Sexually Violent Predator Act.
Sex offenders who suffer a mental abnormality or personality disorder making them likely to commit repeat offenses can be held indefinitely for treatment under the 1994 law.
Ontiberos' appeals lawyer, Michael Whalen, said he supports a rehearing of the issue surrounding Bennett.
"I have a great deal of respect for Mr. Bennett as a prosecutor and as an attorney," Whalen said.
Whalen said he expected to file a response within the next week on other issues, however.
Bennett's conduct wasn't the only flaw the Court of Appeals found in the case. Judges also ruled Ontiberos didn't receive an adequate defense.
The court also said the defense lawyer should have objected to how the rest of the reports were being submitted to the jury.