By Sherman Smith, Kansas Reflector
LYNDON — Retired District Judge Merlin Wheeler during a hearing Monday admonished the state’s public defense agency for allowing “pretty, petty” infighting to disrupt a capital murder case.
Wheeler expressed concerns about inherent conflicts of interest within the Kansas State Board of Indigents’ Defense Services, as the public defense agency is known, and relieved the agency attorneys who were representing Kraig Kahler from having any further involvement in the case.
The judge installed Jason Belveal, of Holton, and Barbara Costa, of Colorado, as Kahler’s new attorneys.
Monday’s hearing followed a Kansas Reflector report on turmoil that erupted within BIDS under the direction of acting director Brandon Barrett. There were allegations of retaliation and interference, the firing of a decorated attorney by voicemail, ongoing personnel investigations, and an effort to unionize.
Much of the drama stemmed from disputes between Barrett and attorneys in the Capital Habeas Office, which handles post-conviction capital murder cases at BIDS. Alisha Mehdi and Rebecca Halff, two first-year attorneys in the office, were assigned to represent Kahler, who was sentenced to death for killing his wife, two daughters and grandmother-in-law in 2009 in Burlingame.
Mehdi was critical of her employer in a July 24 court filing that said BIDS had neglected to hire anyone qualified to handle the Kahler case. Barrett told the court Monday that he moved quickly to remedy the problem by extending a contract to Belveal, a more experienced attorney, to take over the case. But Barrett didn’t tell his own employees he was replacing them.
Belveal said Monday he didn’t realize his Aug. 15 entry into the court record would be controversial. Belveal said he thought “the ladies” would be grateful for his help.
Barrett didn’t directly answer a question from Wheeler about why he didn’t call Mehdi and Halff to tell them they were off the case.
Mehdi filed an Aug. 29 emergency motion in which she asked the court to stop her boss from interfering in the case. Mehdi, along with outside legal observers, pointed to a state law that prohibits the BIDS administrative office from interfering in cases. But Wheeler sided with Barrett’s explanation that assigning counsel to a case doesn’t amount to interference.
In a back and forth with the judge, Mehdi said it was “very dangerous precedent” to allow a BIDS director to reassign counsel that had been critical of the agency.
“I think you’re misinterpreting the power of your office,” Wheeler warned her.
The judge also was critical of Mehdi’s accusation of unethical conduct by Oklahoma attorney Mark Henricksen, who submitted a false court filing that said he met with Kahler and that Kahler wanted him to take over the case. Henricksen then filed an affidavit with the court that blamed his paralegal and an old template for the mistake.
On Monday, Henricksen told Wheeler he should have been more careful.
“I’m guilty of poor proofreading,” Henricksen said.
Wheeler said it sounded like Henricksen “got caught in the crossfire” between Mehdi and Barrett. Wheeler told Mehdi she should do more investigating before “throwing accusations” around in court so she could achieve her goal of staying on the case. Mehdi asserted that she was preparing to file a formal complaint about Henricksen with the Kansas attorney disciplinary office.
Kris Ailslieger, deputy solicitor general at the Kansas Attorney General’s Office, complained that multiple capital murder cases have been delayed by turnover at BIDS, frustrating him and victims’ families.
“I don’t know what’s going on in the Capital Habeas Office, but it appears dysfunctional to me,” Ailslieger said.
Because Kahler’s conviction and death sentence have already been upheld on appeal, the case is at the stage in which specialized attorneys are supposed to examine constitutional issues, like whether Kahler previously received effective assistance of counsel.
Wheeler questioned how one office within BIDS could have the freedom to claim a sister office had been incompetent, especially in light of Mehdi’s allegations that Barrett was interfering with the office. Wheeler rejected assurances from Barrett that there was no inherent conflict of interest in the arrangement.
The concern, as Wheeler pointed out, is that a future attorney could point to the current mess and argue that Kahler’s right to quality legal representation wasn’t met.
“I choose not to invite future litigation,” Wheeler said.
Instead, he said he would “do like King Solomon” and appoint Costa, who the Capital Habeas Office had identified as a potential lead attorney, as well as Belveal, who had been picked by Barrett, to represent Kahler. Wheeler ordered Mehdi and Halff to turn over their case files.
Monday’s hearing was held by video call, which Kansas Reflector was not allowed to join. Wheeler allowed the Reflector to listen, but not watch, the hearing from a room at the Osage County District Court in Lyndon. Retired public defender Ron Wurtz was the only other individual to attend the listening session.
Wheeler scheduled the hearing to start at the unusual time of 1:59 p.m., following a dispute with the Kansas Department of Corrections about whether 2 p.m. was too late in the day to start a hearing involving an inmate.
Wheeler started by disclosing he had “a little trouble” in scheduling the hearing because the department had attempted to dictate the timing. Wheeler tasked Ailslieger with delivering a message to the department: If there were any future attempts to try to dictate the timing of a hearing, the judge would order the corrections secretary to explain why he thinks he has authority over the court.
David Thompson, a spokesman for the Department of Corrections, didn’t answer a question about the department’s role in the timing of Monday’s hearing but said in a statement that the department “makes every effort to accommodate the court’s schedule.”
