Crime & Courts

Appeals court rescinds criticism of prosecutor

The Kansas Court of Appeals rescinded an order Wednesday, which originally criticized a prosecutor for making up evidence.

A week later, the evidence was found in the court file.

Presiding Judge Melissa Taylor Standridge said the court simply believed prosecutors, who said the evidence used in the trial of an accused sex predator didn't exist. It was later found among some 3,000 pages of evidence.

Standridge wrote in Wednesday's order that the court relies on lawyers presenting their case to know the facts and get them right.

"It would be an irrefutable waste of scarce court resources to look for a needle in a haystack, once the owner of the needle tells us the needle does not exist," she wrote.

The judges originally ordered a new trial for Robert C. Ontiberos over whether he should be indefinitely confined in a state treatment facility as a sexual predator, as allowed under Kansas Law.

Ontiberos was convicted of attempted rape in 1983 and aggravated sexual battery in 2001.

During the trial, Sedgwick County Deputy District Attorney Marc Bennett referred to a disciplinary report saying Ontiberos had fashioned a weapon while in prison.

Bennett later could not produce the report in the pile of paperwork, and the Court of Appeals accused Bennett of making the report up.

A week after the appeals court's ruling, officials in the Sedgwick County District Attorney's office found the report, and the Kansas Attorney General's office asked the court to reconsider its ruling.

Ontiberos' lawyer, Michael Whalen has argued that although the report was found, it didn't refer to a weapon.

New arguments in the case are set for Nov. 3 in Topeka.