Kansas appeals court: No ‘do-over’ for the state in marijuana prosecution

A divided Kansas Court of Appeals panel ruled Friday that prosecutors can’t have a “do-over” in their attempt to prosecute a Clay County man for alleged marijuana crimes.

Two of the three judges on the appellate panel said prosecutors tried to manipulate the process by dismissing and refiling marijuana and paraphernalia charges against Dominic Parry of Clay Center, the defendant in a case where judges had earlier ruled that police unlawfully searched his apartment in 2013.

Parry was charged with felony possession as a repeat drug offender.

In the original case, Clay County District Judge John F. Bosch had ruled that the evidence seized in the search couldn’t be used against Parry, because police didn’t have a search warrant and consent to search the apartment was improperly coerced from Parry’s girlfriend.

The state appealed that decision and lost. Four days later, prosecutors dismissed the original charges against Parry and immediately refiled the exact same charges under a new case number.

“The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate,” said the opinion issued Friday by appellate judges G. Gordon Atcheson and Michael B. Buser.

“The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.”

“The State manipulated the prosecution of Parry, as it forthrightly admits, by dismissing and refiling the charges to take what we find to be an impermissible second bite at the apple.”

Atcheson and Buser said the dismissal and refiling violates a legal doctrine called “law of the case,” designed to prevent relitigation of settled points by lawyers who disagree with the decision they get the first time around.

If prosecutors were allowed to do that, they “could again dismiss, refile, and get yet a third opportunity to argue the issue – with no end in sight,” the opinion said.

In dissent, appellate Judge Kathryn Garner wrote that she didn’t think law of the case applies in Parry’s situation.

She wrote that the panel majority had relied on “exceptional circumstance” cases where prosecutors dismissed and refiled charges to try to get around requirements that defendants receive a speedy trial.

“Such cases are not sufficiently analogous to persuade me that the two cases here should be considered a ‘single action’ for purposes of the law of the case doctrine,” Garner wrote.

This story was originally published September 18, 2015 at 4:47 PM with the headline "Kansas appeals court: No ‘do-over’ for the state in marijuana prosecution."