CAN THE JUDGE DISMISS THE CASE AT THE PRELIMINARY HEARING BECAUSE HE OR SHE KNOWS THE PROSECUTOR WILL NOT WIN AT TRIAL?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Ismaili, 7 P.3d 236 (Kan. 2000).

This case answers the following question:

Can the judge dismiss the case at the preliminary hearing because he or she knows the prosecutor will not win at trial?

The issue in this case is whether a judge can dismiss the case at the preliminary hearing because he or she knows the prosecutor will not win at trial. It is not the function of the judge at preliminary hearing to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent.

In this case, Ismaili allegedly made misrepresentations in securing loans from one party to another party without disclosing his personal interest in the transactions. The series of financial transactions involved interests in gas and coalbed methane drilling leases. The Grannemanns were retire and owned an interest totaling $120,000. An investor named Goossens wanted to buy out their investment from the company Jet Drilling, L.L.C. (Jet). The Grannemanns were uncertain as to what they wanted to do, so at the suggestion of someone at Jet Drilling, they hired Ismaili as an arbitrator. Ismaili encouraged the Grannemanns to sell to Goossen, and he negotiated the transactions. Throughout the dealings, the Grannemanns loaned Goossen money, to expedite the transaction. One of those loans, for $70,000, ended up in Ismaili’s account. Ismaili also received $35,000 from Jet. Later, it was revealed that Ismaili is a corporate officer at Cale & Fulham, Ince. (Cale). Jet owed Cale $1.2 million. After acquiring the substantial interest in Jet, Goossen also assumed the $1.2 million debt.

The State charged Ismaili with one count securities fraud and one count of property theft. The district court dismissed the complaint, finding that the State failed to present sufficient evidence to bind Ismaili over for trial. The State appealed.

It is not the function of the judge at preliminary hearing to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. A defendant must be bound over for trial if, from the evidence at the preliminary hearing, it appears that a felony has been committed and there is probable cause to believe the defendant committed the felony. When there is a conflict in testimony presented at the preliminary hearing, there exists a question of fact for the jury. For the purposes of the preliminary hearing, the judge must draw the inference that is favorable to the prosecution. Here, there was adequate evidence to suggest there was probable cause that Ismaili had violated the law. Ismaili was not just an independent third-party advisor, someone from Jet involved him because they knew he would help convince the Grannemanns to sell. The evidence shows that Ismaili played a role in persuading the Grannemanns to move forward with proceedings.

The Supreme Court of Kansas reversed the decision of the lower court and remanded with instructions to reinstate the fraud charge and for further proceedings. The court found that the judge erred at the preliminary hearing by dismissing the case, even though it was evident that there was probable cause that a felony had been committed and that Ismaili had committed the felony.