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GOP, Dem senators working to force vote on bill reforming use of jailhouse informants
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Kansas Reflector

TOPEKA — Republicans and Democrats in the Kansas Senate fell short Monday of forcing a vote on a House-passed bill requiring prosecutors to disclose to the defense information about jailhouse informants’ criminal history, pending cooperation agreements and history of making deals to exchange testimony for leniency.

In the unusual procedural move, Olathe Republican Sen. Rob Olson proposed the Senate add House Bill 2293 to the chamber’s debate calendar after languishing untouched since March 2023. The Senate Judiciary Committee’s chairwoman and vice chairman, and the Senate’s majority leader, opposed the motion. All indicated Attorney General Kris Kobach and the association of district and county attorneys were opposed to the legislation, which was approved on a nearly unanimous vote by the House and endorsed by the Senate committee before placed on idle.

The Senate vote was 2412, which was three votes shy of the two-thirds majority needed to climb over the back of GOP leadership to compel debate and voting on a bill.

“Jailhouse snitches are getting sweetheart deals to testify against people. We don’t know what these deals are,” Olson said. “Sure, the prosecutors are not going to like this. This is the way we make sure some prosecutor is not using these snitches to get people wrongfully convicted.”

Sen. Cindy Holscher, an Overland Park Democrat, said the legislation would bring context to “contaminated” testimony from jailhouse informants who speak up in exchange for authorities dropping charges or agreeing to lighter sentences.

“There is a reason such testimony is often unreliable, because it is bought,” she said. “It’s quite common for prosecutors to seek a jailhouse informant when they have an otherwise weak case.”

Kobach said no deal

The bill contains provisions designating it the Pet Coones Memorial Act. The Kansan died months after exonerated for murder and released from prison. He was convicted of murder in 2009 and released after 12 years in prison. No physical evidence connected Coones to the crime, and his first trial didn’t produce a conviction. Frequent jailhouse informant Robert Rupert contacted Wyandotte County prosecutor Ed Brancart to offer his services in exchange for a deal on his own case. He was placed in Coones’ cell and testified at the second trial that Coones confessed to the crime.

Brancart didn’t disclose to Coones’ attorneys that Rupert had a history of mental illness, a lengthy criminal record, offered to testify as an informant in other cases and had a reputation among prosecutors as a person who lacked credibility. At one point, Rupert tried to back out of testifying. He was threatened by prosecutors with more jail time, attorneys with the Midwest Innocence Project said, if he didn’t take the stand.

Sen. Kellie Warren, the Leawood Republican who chairs the Senate Judiciary Committee, said the attorney general and local prosecutors rallied to oppose the bill. The committee’s vice chair, McPherson Republican Sen. Rick Wilborn, said the state’s prosecutors were “opposed to it 100%.”

“I spoke with the attorney general. The attorney general does not support this bill and neither do the prosecutors,” affirmed Senate Majority Leader Larry Alley of Winfield.

Another step forward

Under the bill, the Kansas Bureau of Investigation would track use of jailhouse informants and benefits provided those witnesses. That database would be made available to prosecutors through the KBI, and the record could be used to identify people with a pattern of offering jailhouse testimony in exchange for leniency.

The legislation would clarify the prosecution’s existing constitutional obligation to disclose to the defense all discrediting evidence related to jailhouse witnesses. Court precedent required disclosure, but didn’t precisely identify what had to be turned over to the defense. The House bill would mandate sharing of jailhouse witnesses’ criminal history, any promised or expected benefits and a roster of other cases in which the witness provided testimony as a jailhouse informant.

Finally, the bill would make certain victims of a jailhouse witnesses’ crimes were notified by prosecutors when the offender was being offered leniency for testimony in a separate case.

“This bill is about transparency,” said Sen. Molly Baumgardner, R-Louisburg. “When a jailhouse snitch is sharing information that would be a part of them being able to craft a deal for themselves, there should be a trail and a recording of that occurring.”

Baumgardner was a key sponsor of a 2018 bill that established a compensation system for the wrongly convicted in Kansas. The law signed by GOP Gov. Jeff Colyer provided cash payments, health insurance, college tuition, housing assistance and social service programs to the wrongfully convicted.

“This bill is a next step forward with that wrongful conviction bill,” she said.

Care about justice?

HB 2293 was passed by the House on a vote of 117-4 in February 2023. Every House Republican voted for it. In the Senate Judiciary Committee, the members voted 7-2 to recommend Senate passage. It has never been placed by Senate leadership on the debate calendar. Instead, House and Senate negotiators attempted to rewrite the bill to delete transparency provisions. It was transformed to an extent members of the Coones’ family didn’t want their name attached to it.

Tricia Rojo Bushnell, executive director of the Midwest Innocence Project, said the bill shouldn’t be allowed to die at close of the 2024 session. In addition to reducing the prospect of unreliable informant testimony being used to convict the innocent, she said, the family of Pete Coones deserved due process in terms of the Legislature’s work on the bill. The Midwest Innocence Project worked on Coones’ appeal and fight for freedom.

“This bill is not controversial,” Bushnell said during a news conference at the Capitol. “We are here today to ask this body and all those who care about justice … to give this bill and Pete’s family the fair shake that it and they have always deserved.”

Bay Scoggin, state policy advocate of the national Innocence Project, read a statement from Coones’ children about the stalled House bill.