No cameras and a gag order: Here's what Mickel Cherry's defense attorneys are seeking
Newly released court documents show Mickel Cherry's defense attorneys have made several requests of the court presiding over his capital murder case.
In the time since a judge blocked the public from accessing a court document detailing the police investigation into the rape and killing of Zoey Felix, public defenders have sought to ban cameras from the courtroom and gag police and prosecutors from talking to the media.
"The American system of justice requires extreme procedural safeguards when the State seeks to take the life of a human being," wrote attorneys on the Kansas Death Penalty Defense Unit.
Shawnee County District Attorney Mike Kagay hasn't yet announced whether he will pursue the death penalty.
Cherry is accused of sexually assaulting and killing Zoey, a 5-year-old girl living in a homeless camp in southeast Topeka, on Oct. 2.
The state public defender unit has filed at least 12 motions in the case since the court's computer system went offline.
There may have been at least one additional motion filed under seal. The documents released Friday by the clerk of the Shawnee County District Court were for defense filings three through 14, except there was no No. 11.
Mickel Cherry's defense wants heightened procedural standards
The motions signal that the defense attorneys want the court to impose higher procedural standards to ensure the integrity of the case.
"The unique, irrevocable nature of the death penalty necessitates safeguards not required for other punishments," they wrote.
The attorneys frequently noted that failure to abide by heightened standards could ultimately violate Cherry's constitutional rights.
"Capital cases are inherently atypical because of the nature of a death sentence," the defense attorneys wrote in one of the motions. "This court must consider the need for heightened procedural protections in every facet of this case.
"This applies even when considering procedures that are appropriate in nearly any other kind of criminal case. This court must therefore consider the particular need for these special procedures because of the possibility of a capital conviction, death sentence, and execution."
The attorneys vowed to make "numerous motions and objections throughout this case," writing that capital defense counsel have special obligations.
"In a capital case, these steps are necessary to ensure the fairness and reliability of this proceeding and any future legal proceedings," they wrote. "Any restrictions on counsel's ability to meet these responsibilities would violate Mr. Cherry's rights to the effective assistance of counsel, life, due process, and to be free from cruel and unusual punishment."
Defense wants to silence police and prosecutors with gag order
The defense attorneys have already succeeded in persuading a judge to seal the Topeka Police Department affidavit detailing probable cause for arresting and charging Cherry. Such affidavits are presumed to be public records under Kansas law, but can be redacted or sealed.
Now, in addition to formally invoking his own right to remain silent, Cherry is seeking to silence prosecutors, law enforcement, defense attorneys, court staff and the judge from speaking with the media outside the courtroom, except to answer questions about court dates and times.
"In cases with this volume of media coverage, it is unlikely that there will be completely silent media attention," the attorneys wrote. "Instead it is highly likely state and local coverage will continue to publish detailed reports about any factual or legal developments in this case. State and local coverage is always particularly salient in criminal cases because of its proximity to and effect on a potential jury pool."
They said capital cases "involve inflammatory allegations and provoke intense public discussion" and that "Mr. Cherry's continued human life depends on the ethical and careful conduct of all trial participants."
"Any press release, news conference, or social media 'update' carries the risk that a member of the public will form an opinion about Mr. Cherry's guilt, or what the appropriate punishment should be," they wrote. "The more that such statements are made, and the more potential jurors that are exposed to such statements, there is an increased likelihood that a fair and impartial jury cannot be seated."
Defense wants to ban newspaper and TV cameras
The defense attorneys asked the judge to ban live and still cameras from all proceedings, though reporters would still be allowed to attend and take notes.
"Since charges have been filed, the case against Mr. Cherry has received considerable media interest," they wrote. "To date, multiple news agencies have requested access to the probable cause affidavit in this case. Additionally, hundreds of articles, videos, and social media posts have discussed Mr. Cherry and his case.
"To defense counsel's knowledge, no media agency has requested permission to bring cameras into the courtroom for Mr. Cherry's hearings, nor has this Court entered any order permitting or restricting cameras within the courtroom for Mr. Cherry's case."
The Capital-Journal previously requested permission for a photographer to have a camera at a hearing scheduled for Oct. 12. That hearing was postponed to December, and the court administrator never responded to the request.
If cameras were allowed in the courtroom, Cherry should be allowed to wear civilian clothing while free of any visible restraints, his attorneys argued. They noted "a great potential for harm" to Cherry and his presumption of innocence if images of him wearing jail clothes and handcuffs or shackles are published.
"Members of the public, and potential members of Mr. Cherry's venire panel, may view such coverage on television broadcasts, shared through social media, or in print," they wrote. "The harm to Mr. Cherry is no less serious merely because the jury has not yet been empaneled. Members of the public risk viewing such coverage and doubting Mr. Cherry's presumption of innocence, because he is already clad in custodial attire or mistakenly assume that Mr. Cherry is dangerous because they have seen him shackled in court."
Security issue has hampered obtaining public court documents
Digital copies of court records would normally be free to the public through an online system and public access computers at the courthouse.
But because of an ongoing network security incident that has the appearances of a ransomware attack, the court is left running on paper copies of everything. On Friday, the technology issue was called a "breach" and "data situation" by Sen. Rick Kloos, R-Topeka, and a member of an IT committee.
The documents, first requested by the Associated Press and also obtained and paid for by The Capital-Journal, should cover all publicly filed motions following the court's denial to release the affidavit earlier this month.
A separate request by The Capital-Journal to the court clerk for copies of all paper filings in the case has so far gone unanswered.
What motions has the defense filed?
These are the newly released court documents:
A 22-page memorandum of law in support of heightened procedural protections.
A 10-page motion for transcripts of all past and future hearings.
A 14-page motion for discovery.
A nine-page motion to preserve physical evidence. The motion states that, based on the contents of the sealed affidavit, defense attorneys believe police may have possession of "clothing, weapons, swabs of alleged biological materials, and other tangible objects."
A 15-page motion to prohibit consumptive testing. That could restrict police and prosecutors from testing evidence that could be consumed through testing — such as DNA, blood or semen — and thus leave the defense unable to get additional test results.
A nine-page motion to preserve and disclose all written or otherwise recorded police communications and notes. It seeks preservation of several potential records, including 911 calls. The attorneys wrote that "it is often true that 911 callers or investigating officers discussed possible alternate suspects, or specified that someone other than Mr. Cherry played a more culpable role in the alleged crimes."
A seven-page motion for an order that the state and its agents video and audio record all future civilian witness interviews.
A 19-page motion and appendix to prohibit the state from creating, facilitating or furthering jailhouse informant testimony. The motion notes ongoing efforts in the Kansas Legislature to restrict the use of such "jailhouse snitch" testimony.
A four-page notice of exercise of rights. It formally gives notice that Cherry is invoking his rights to effective representation of counsel, to remain silent, to confront witnesses against him, and other rights.
A six-page motion for protection from the seizure of physical evidence from Cherry's person.
An 11-page motion to exclude cameras from the courtroom, or, in the alternative, motion to appear in civilian clothing without visible restraints.
An 11-page motion to prohibit extrajudicial statements by all trial participants.
Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.
This article originally appeared on Topeka Capital-Journal: Defense in Mickel Cherry Topeka murder case want gag order, no cameras
