Sex abuse case not only time Kansas judge has been lenient


State News

February 8, 2019 - 12:50 PM

WICHITA, Kan. (AP) — A Kansas judge who blamed two teenage girls for a sexual encounter with a 67-year-old man spent nearly a decade on the bench overseeing mostly sealed juvenile and child-in-need-of-care cases behind closed doors before taking over the adult criminal cases for a retiring judge last summer.

Since then, Leavenworth County Judge Michael Gibbens’ rulings have drawn more scrutiny and criticism, including his widely panned decision in December in a sex abuse case during which he eased a man’s sentence after saying the victims, ages 13 and 14, were “more an aggressor than a participant.”

It was not the first time Gibbens has substantially departed from Kansas sentencing guidelines in handing down lenient punishments, according to court documents reviewed by The Associated Press. In July, he sentenced a man to probation for battery of a law enforcement officer. In November, he gave another man probation for bringing contraband into a state prison.

Because Gibbens has not been handling adult cases for long, it’s unclear how he compares with his colleagues on the bench when it comes to following sentencing guidelines. An analysis by the Kansas Sentencing Commission found that state judges handed down sentences within the guideline range in 79 percent of cases in 2017, a number consistent with the prior two years.

Gibbens did not return a call at his court office seeking comment for this story.

Leavenworth Police Chief Pat Kitchens said his department was “sort of disappointed” with the probationary sentence Gibbens gave 19-year-old De’Aire McNeal in July for pushing Officer Sarah Moreno when she was attempting to arrest him, causing the officer to suffer a concussion after she was knocked down a flight of stairs.

“We always wish sentencing and punishment for assaulting police officers should be much more severe,” Kitchens said.

In a journal entry of judgment, the judge cited McNeal’s age, an expert’s psychological report, and the availability of treatment as “compelling reasons” for his departure from Kansas sentencing guidelines of 12 to 14 months.

Kitchens demurred when asked whether Gibbens has a history of giving lenient sentences to defendants: “I don’t think we have a full sense, a fair opportunity to make that evaluation.”

Democratic former Gov. Kathleen Sebelius appointed Gibbens to the bench in 2008. Like many of Kansas’ district court judges, he is periodically listed on the ballot for retention. Gibbens was up for retention last year and won’t be on the ballot again until 2022.

Kansas voters typically have little information to draw upon when deciding whether to retain a trial judge. A judicial evaluation program that once surveyed attorneys, non-attorneys and appellate judges to come up with individualized ratings for Kansas judges lost its funding in 2011 and was officially discontinued in 2013, Christy Molzen, staff attorney for the Kansas Judicial Council, said in an email. Its only report on Gibbens showed that 93 percent of attorneys and 90 percent of non-attorneys recommended that Gibbens be retained in 2010.

Gibbens also has not faced any disciplinary actions from the Commission on Judicial Qualifications, which reviews complaints against judges to determine whether they have violated the code of judicial conduct. Complaints are confidential, but disciplinary actions are posted on the commission’s website.

Another case where Gibbens diverged from sentencing guidelines involved Charles Newsome, who admitted to bringing marijuana, synthetic marijuana and tobacco into the Lansing Correctional Facility. Gibbens gave Newsome probation despite a plea agreement in which the prosecution and defense had agreed to what was already a below-guideline sentence of two years, according to court documents. The sentencing guidelines called for about four years in prison.

In explaining his decision, Gibbens wrote that the contraband was not weapons or hard drugs; the crime was nonviolent; and “community safety interests are better served” by placing Newsome on probation in conjunction with drug treatment. 

The judge also cited the increasing population of prisons.

Asked how local attorneys view Gibbens, defense attorney Joseph Osborn, who represented Newsome, said the judge “generally has a decent reputation in this county.” But Osborn said it would be inappropriate for him to offer his own opinion, noting he practices in front of Gibbens.

None of the judge’s cases have generated the scrutiny as that of Raymond Soden. Gibbens sentenced Soden in December to five years, 10 months in prison for soliciting a 13-year-old on Facebook — eight years less than what’s called for in sentencing guidelines.