TOPEKA — John R. Cantu was placed on trial in Reno County District Court for stalking, violation of a protection order, property damage, trespass and criminal threat charges after allegedly terrorizing a woman and children in their home by throwing a cinder block through a window.

Cantu, who was arrested after found hiding in an alley near the victims’ residence in September 2020, took the stand in his own defense at trial. He had entered pleas of not guilty, denied all allegations and offered an uncorroborated alibi for his whereabouts on that night. During cross-examination by Assistant District Attorney Kimberly Rodebaugh, Cantu drew the ire of District Court Judge Trish Rose by interrupting the prosecutor, asking questions of the judge and repeatedly inquiring as to whether he was limited to yes-or-no answers.

Cantu: “May I ask a question?”

Rose: “You need to listen to the questions.”

Cantu: “Am I supposed to respond yes or no?”

Rose: “Go sit at the (defense) table right now. Absolutely, right now.”

Cantu: “I don’t understand. Can I object to this?”

Cantu complied with the judge’s order to leave the stand. At the request of the Reno County prosecutors, in front of jurors, Rose then took the unusual step of immediately striking the entirety of Cantu’s testimony from the record. She did so because prosecutors no longer had the opportunity to complete a cross-examination of Cantu. Rose didn’t emphatically say the jury couldn’t weigh Cantu’s abbreviated testimony, but she did issue a written instruction requiring the jury to “disregard any testimony or exhibit which I did not admit into evidence.”

The jury acquitted Cantu of trespassing, but found him guilty on other crimes. He was sentenced to 24 months in prison.

On appeal, Cantu asserted there was insufficient evidence to convict him of stalking and violating protection from abuse orders. He also claimed his constitutional right to testify and fundamental fairness of his trial were compromised by Rose’s decision to delete his testimony.

“Because of the fundamental nature of that, by stripping someone of that right at their own criminal trial, you can no longer say that that trial is a meaningful opportunity under the due process clause to defend yourself,” said Randall Hodgkinson, a Kansas Appellate Defender Office attorney who represented Cantu.

Hodgkinson said Cantu testified in his defense against the advice of trial counsel and that a survey of the jury indicated they were leaning for acquittal until Cantu’s appearance on the witness stand.

Two courts, two decisions

 

In 2023, the Kansas Court of Appeals reversed two stalking and two protection order violation convictions. The Court of Appeals left in place guilty verdicts for criminal threat and criminal damage. The Court of Appeals concluded the Reno County judge’s decision to kick Cantu off the witness stand and strike his testimony was an “erroneous denial” of his constitutional rights, but the error was “harmless” and “did not affect the outcome of the trial.”

Rodebaugh, the senior district attorney in Reno County who handled the Cantu prosecution, had urged the Supreme Court to view the case from the Court of Appeals’ perspective and conclude the mistake by the trial judge was harmless in terms of influencing verdicts.

“It should be judged on a harmless-error standard,” Rodebaugh said. “We know what the testimony was and, beyond a reasonable doubt, it wouldn’t have changed the verdict.”

Cantu’s lawyers pressed the appeal to the Kansas Supreme Court, arguing improper denial of the constitutional right to testify was a structural error requiring reversal of all convictions.

In the Supreme Court opinion issued Friday and written by Justice Melissa Taylor Standridge, the high court accepted the Court of Appeals’ determination the district court denied Cantu’s constitutional right to testify by suppressing his direct testimony. The Supreme Court rejected the Court of Appeals’ analysis that the district court judge’s mistake was harmless to outcome of the trial.

Standridge’s 21-page opinion said the result of Rose’s order ran counter to a trial court’s basic fact-finding duty. It meant the jury was deprived of the opportunity to weigh Cantu’s credibility against the prosecutor’s presentation of evidence and witnesses, the opinion said.

“Cantu had no chance to be heard, to personally defend against the charges or to call the most important material witness — himself,” wrote Standridge, who was appointed by Democratic Gov. Laura Kelly. “As a result, the jury could not consider his body language, expressions, tone of voice, and, of course, the substance of his testimony.”

In Kansas, a constitutional error could be labeled harmless if the beneficiary of the mistake established it didn’t influence the trial’s outcome. A structural error, however, was a category of blundering that violated constitutional rights so basic to fairness of a trial that it couldn’t be treated as harmless in terms of due process.

Standridge’s opinion said the Court of Appeals was wrong to conclude the lack of essential due process did not render his criminal trial “fundamentally unfair.”

A ‘kangaroo court’

 

Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, foreshadowed the Supreme Court’s decision in the case months ago during oral argument.

“I’m struggling to see how this is even a real trial,” Stegall said. “I know it’s a very pejorative term, but how is this not essentially a kangaroo court where the state just comes in and they’re the only voice? It’s not a real trial.”

The U.S. Supreme Court had recognized the right of a defendant to choose to testify on one’s own behalf was “essential to due process of law in a fair adversary process.”

However, the nation’s highest court determined the right to present testimony wasn’t without limitation. A defendant could waive the right to testify and a judge could remove a defendant from the courtroom if the defendant’s conduct during was disorderly, disruptive or disrespectful. If a defendant could lose the right to be present during a trial, it followed he or she may also lose the right to testify.

In Standridge’s opinion reversing conclusions of the Court of Appeals and the district court, she wrote the error regarding Cantu’s testimony led to the “absolute and unqualified deprivation” of his rights.

The defect “infected the entire judicial process by rendering the trial fundamentally unfair, regardless of whether the error affected the outcome of the trial,” the opinion said.

She also wrote the Supreme Court decision shouldn’t be viewed as a limitation on a district court judge’s discretion to preserve order in a courtroom. The opinion said it wouldn’t deprive trial courts, in appropriate circumstances, from turning to the ultimate sanction of preventing a defendant from testifying.