A judge has ruled against a motion that sought the dismissal of a murder charge in a Leavenworth County case.
The motion was filed in the case of Anthony J. Dorsey.
Dorsey, 30, is charged with what is known as felony murder, which is a form of first-degree murder, as well as fleeing or attempting to elude a law enforcement officer.
The charges are alleged to have occurred Sept. 30, 2019. Dorsey allegedly was fleeing from a state trooper on Interstate 70 when he was involved in a crash in southern Leavenworth County. Another driver, Nathan Pena of Brookfield, Illinois, was killed in the crash.
Under state law, felony murder occurs during "the commission of, attempt to commit, or flight from any inherently dangerous felony."
Dorsey’s attorney, Clinton Lee, argued in his motion that the life sentence his client could face is a harsh outcome for an accidental killing during the commission of a felony that is not inherently dangerous in the abstract. He argued this offends notions of substantive due process.
Assistant County Attorney Shawn Boyd said the law is specific about what crimes can be applied to felony murder.
"The statute itself lays out what an inherently dangerous crime is," he said.
District Judge Gerald Kuckelman said it is up to the Legislature to establish the elements of crimes. He said legislators have chosen to include fleeing or attempting to elude an officer as a element of felony murder.
"That’s within their authority to do," he said.
Kuckelman said he does not know of anything that violates the Constitution in the Legislature’s decision.
The judge denied the defense motion.
A trial has been scheduled in Dorsey’s case for Dec. 14. But Kuckelman said Wednesday that the trial likely will be delayed.
He said the Kansas Supreme Court has to give approval for resuming jury trials during the coronavirus pandemic.
Kuckelman said a plan for resuming jury trials in Leavenworth County is being prepared but it has not been shared with the Kansas Supreme Court.
"We probably won’t have approval in time (for a Dec. 14 trial)," he said.
Dorsey remains in custody at the Leavenworth County Jail.