Rick Kittel: A Good Life Defending the Accused

by Meryl Carver-Allmond, BIDS Training Director

Walking back from my first ever oral argument, 14 years ago, I asked fellow appellate defender, Randall Hodgkinson, “Will I ever be able to do that without shaking a little bit?”

“It gets better,” he assured me, “By the time you’ve done as many as Rick Kittel you’ll be super smooth.”

“How many is that?” I asked nervously.

“You know, I don’t even know,” he chuckled, “But it’s a lot.”

***

It is unquestionable that Rick Kittel, who is retiring in early March, is a living legend among appellate defenders. But few know that he actually started his legal career in a prosecutor’s office. He sat down to talk with me about it all a few weeks ago.

“I interned at the Sedgwick County DA in the summer of 1982, but I quickly realized that I was constantly feeling sorry for the defendants. I liked criminal law; I thought I could do trials. But I realized I wasn’t going to be a good prosecutor.” He quickly added, “Well, I don’t know, maybe a good prosecutor should feel sorry for defendants. But it wasn’t going to work for me.”

So, after spending some time traveling and defending U.S. service members in Frankfort, Germany, Rick came home to work as a contract attorney for the newly created appellate defender office in March of 1988.

“At the time, they didn’t have enough positions, so I took a contract job. I had an office in the old ADO, which was a storefront. I worked with Ben Wood, Joyce Black, Jessica Kunen…” he listed off several more names. “Then, in June, I came on as an attorney with benefits. Reid Nelson, Rebecca Woodman, and Pat Lawless all started shortly after me.”  

As Rick remembered all the people he had worked with, one name particularly stood out. “Steve Zinn was a real mentor to me. I remember thinking he was brilliant. He could have done work that was much more lucrative, but he was made to be a public defender. It was a huge loss when he died.” 

Jumping quickly to the lesson, though, Rick went on, “You should try to find a mentor like that in your office if you can. Everyone I’ve worked with over the course of my career has been easy to talk to and willing to help. They want everyone else to succeed because they realize that success for one person in the office can turn into success for other people. But sometimes it’s just having someone to talk you off the ledge and bring you back to the reality that you’re doing good work and not failing your clients. After Steve died, I would call Janine Cox and talk to her, so she took the place of Steve, in a lot of ways, in my professional life.” 

In 1996, a position as the appellate defender liaison at the University of Kansas School of Law opened up. That attorney works for the appellate defender by taking real cases and working through them with KU law students. Rick applied and was hired for the position. “Some of it had to do with law, some with family. I had a child in 1994, and I wanted to work in Lawrence, just because that made it easier. But I also wanted to do something a little bit different; I wanted to see if I could teach.”  

And teach he has, ever since – guiding generations of KU law students through the process of writing their first appellate briefs, and winning a few legal victories of his own on the way.

“One of my favorite cases is a case that I actually lost, State v. Salts. I had been raising issues challenging the deadlocked jury instruction for years. Lost every time, until I finally got a case that went directly to the Kansas Supreme Court. My client died after he filed his notice of appeal, but this was back when they would still consider cases like that. So I argued that when the deadlocked instruction says ‘a new trial would be a burden on both sides’, that’s not true. And the Court agreed. It didn’t help my client, but it helped a lot of other clients.” 

But, those victories aside, as we’re talking, I get the idea that Rick is generally not pleased with the way that some aspects of Kansas law are trending. For instance, he laments:

“The growing reluctance of the appellate courts to consider issues. Whether because of things like mootness or where an issue fits an exception [to preservation], but they still don’t want to consider it. I think it’s headed in the wrong direction.”

“I’ve also always thought that harmless error is a way for the appellate courts to avoid hard issues. We have rules that an appellate court doesn’t reweigh evidence or delve into the mental processes of a jury, but every time you have an opinion that says ‘the evidence is overwhelming’, those rules are being violated.”

But Rick’s biggest complaint about the law currently is offender registration.

“I think it’s bad law and bad policy. And I don’t know that the Court realizes how burdensome it is on the registrants. These people don’t have anything to start with; they don’t have the resources to comply with the requirements being put on them. And the whole idea that we’re going to make people register for committing certain crimes, and then we’re going to make that information available to the public, panders to the worst emotions of the public. Because it allows not just the judicial system to punish litigants, it invites the public to take their own actions against registrants. And often there’s no way to get out from under the burden.”

But despite those criticisms, when I ask him what he would do differently, Rick has few regrets and some good hope for the future.

“The only regret I can really think of is that, when the pandemic started and the ADO meetings started being broadcast on Zoom, I could finally attend regularly. It’s been helpful and good and I wish I’d made a point to do it sooner. I’m more aware of what’s going on in the office, and it’s been an opportunity to get to know some of the younger attorneys.”

“I feel like I also have to say ‘thanks’ to KU Law for having me here for so long, because it’s been a real pleasure to work with students. I’ve probably worked with between 450-500 students, and a number of my former students have gone on to work in the BIDS system. I think it’s really encouraging that there are so many young, bright, energetic attorneys now that seem to have such a genuine interest in helping people, so I’m optimistic from that point. When I leave someone will take my place, and carry on, and do a better job than I’ve done – and that will be great.”

I have no doubt that Rick Kittel’s retirement will be full of well-deserved travel, spending time with family, reading his beloved poetry, and maybe even some sleeping in. But before I let him go, I had to ask one last question.

“So, I’ve always wanted to know – how many oral arguments have you really done?”

“Well, I still have one left, but it will be 493 when I retire – 400 in the Court of Appeals, and 93 in the Kansas Supreme Court.”

For those of you who may not have a comparison, that’s a lot. It’s the kind of number that makes you feel like a great lion of the Kansas Supreme Court is stepping down, but that flashy image doesn’t suit Rick’s workmanlike diligence. He doesn’t need to roar, he’s done something more valuable.  Through his own cases, and through the students he’s shaped, Rick has spent a lifetime – 34 years, plus – humbly and honorably standing up for those people he felt sorry for as an intern so long ago.

“It’s been a good life, defending the accused,” he mused, “On the whole, it really has been.”