The Kansas Supreme Court on Friday, Aug. 2, affirmed a 2017 decision by the Court of Appeals that affirmed in part, reversed in part and vacated in part former Kansas Highway Patrol Trooper Darrin D. Hirsh’s domestic battery convictions and remanded his case for further proceedings.

Barton County District Judge Ron Svaty heard the case in 2016, when Hirsh, now 42 years old, was convicted of aggravated assault, two counts of criminal threats and domestic battery. Hirsh’s ex-wife claimed that in March of 2013 he put a gun to her head, attempted to suffocate her with a pillow and threatened her and their children.

The Court of Appeals reversed the aggravated assault conviction because jurors had asked whether the pillow could be considered a deadly weapon. However, the State had specifically charged Hirsh with aggravated assault committed with a handgun.

The new ruling describes other issues brought up by the defense, including the fact that three female jurors did not disclose their personal histories of domestic violence during voir dire. However, they weren’t directly asked to do so, the High Court ruled.

What the defense council actually asked was, “(S)ome of these allegations are domestic violence allegations. Anybody feel, by virtue of their experiences, their past, or you know, past experience of a loved one that they can’t sit fairly and impartially on this jury?”  (All quotes are from the decision published on Aug. 2.)

One missing word

During the trial, the defense called six character witnesses who testified to Hirsh being a calm, peaceful person. One of the defense witnesses was Barton County Undersheriff Bruce Green. During his cross-examination by the State, Green was asked about a document he had brought to the witness stand with him. He testified it was the disciplinary report concerning Officer Reed.

On appeal, Hirsh argued that his 14th Amendment due process rights were violated by the late disclosure of exculpatory evidence. Green’s report included a disclosure that Candice Hirsh made to her boss, who relayed it to the deputy who relayed it to Green. Although the statement was “multiple times removed” from the person who said it, the defense said it was important because Candice’s boss reportedly said she was told the attack occurred in the Hirsh basement, but all other reports put the attack in the bedroom. This could have been part of the defense’s evidence that Candice’s statements were sometimes inconsistent.

The Supreme Court disagreed with Hirsh, saying the single word “basement” would not have been enough to change the outcome of the trial, and the defense was given time to follow up before the trial ended. “Even assuming the information in the report could have been used by Hirsh had it been disclosed earlier in the trial, the court was confident that the outcome was not undermined because the information was not material.”

Hirsh was released from prison and placed on post-release supervision on Oct. 7, 2016. His sentence expired on April 8, 2017.