Deputy district attorney cited for prosecutorial misconduct

Sedgwick County Deputy District Attorney Marc Bennett was cited for prosecutorial misconduct in a ruling announced Friday by the Kansas Supreme Court that also ordered a new civil commitment trial for a convicted sex offender.

The case became an issue during Bennett’s campaign for DA this summer. He won the Republican primary earlier this month and faces no opposition in November.

The new trial was ordered for Robert C. Ontiberos, who was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. Bennett was the prosecutor in a 2008 trial that sought to have Ontiberos, who was about to be paroled, confined to a mental hospital indefinitely as a sexually violent predator.

A District Court jury agreed, but Ontiberos appealed.

In January 2011, the appeals court overturned the verdict on the basis of ineffective work by Ontiberos’ court-appointed attorney and Bennett’s characterization of an instrument in Ontiberos’ possession while in prison. The state attorney general’s office appealed the ruling to the Supreme Court.

The Supreme Court spent most of its 39-page ruling dealing with the ineffectiveness of Ontiberos’ defense counsel in the district court trial. But in the final two paragraphs, the court said Bennett committed an error by talking about evidence without first admitting it for the jury to see and for mischaracterizing a Kansas Department of Corrections discipline report.

“This is misconduct under any standard,” the court said.

The court had prefaced that conclusion by saying it “briefly” considered Ontiberos’ claim against Bennett. “We do so because it may arise again (in a new trial),” the court said in its ruling.

During an incident in the 1990s, an imprisoned Ontiberos was found with a pen wrapped in duct tape. Bennett referred to the instrument as a “crude knife of some sort” during the trial; prison officials listed it as “less dangerous contraband” in their report.

Bennett, who was serving as a special assistant to the state attorney general’s office on the case, said he and the defense attorney had agreed to stipulate to a bulk of evidence, including the report about Ontiberos’ unauthorized evidence.

Michael Whalen, Ontiberos’ attorney during the appeals process, said that’s the way evidence had always been handled in civil trials seeking to commit someone to a state mental hospital since the Kansas Sexually Violent Predator Act took effect in 1994. But he also said that didn’t necessarily make it right, so he challenged that stipulation before the appeals and supreme courts.

The Supreme Court agreed. In other words, Bennett said, if you’re going to talk about a red shoe in a commitment trial, you have to show the jury the red shoe.

“I played by the rules I thought were in existence,” he added, “but that’s not an excuse. I get it. The court is saying, ‘Don’t do it again.’ We’ll do it differently.”

In July 2011 – well after the Ontiberos case – Whalen said the state passed a law that spelled out what had prosecutors and defense attorneys had been doing in practice for 17 years. The new law allowed stipulation to evidence in those commitment trials in order to conform to federal law.

As part of another case he’s handling, Whalen has filed an appeal with the state Supreme Court challenging the constitutionality of that new law and uses the Ontiberos case as part of his evidence.

“Now we’re going to have direct conflict between legislation and the Supreme Court,” Whalen said.

Kevin O’Connor, who lost to Bennett in the primary race, said Friday he had no comment on the ruling. Ontiberos remains in the Larned State Hospital.