Ineffective appellate counsel

Martin Peck won in King v. State, No. 94,117 (Kan. App. March 30, 2007), winning 1507 relief based on ineffective assistance of counsel. Mr. King received an upward durational departure in a Sumner County case in 1995. During his direct appeal, his special appellate defender requested five extensions of time to file a brief. The COA denied counsel's sixth request for extension of time and dismissed the appeal. Mr. King filed a 1507 motion claiming ineffective assistance of appellate counsel. It seems like sort of a no brainer. The state conceded defecient performance, but argued no prejudice could be shown. The COA did not bite on that argument, correctly noting that where a defendant is wrongfully deprived of an entire appeal, prejudice is presumed.

I should note--out of a sort of vanity--the appellate attorney subject of this case was not an employee of the ADO. It was an attorney that was contracted to do the case. At that time in history, those persons were called "special appellate defenders" and the ADO did not withdraw. Today, we actually withdraw from such cases and the attorney is simply listed by name. (In fact, this case is a good example of why we changed the former policy!)

I would also note that this case presents a sort of paradox for the relationship between the appellate court and appellate defense attorneys. We occassionally have issues where we procedurally mess up in some way with a single case or some times when we have gotten into the trouble in a more systemic way (i.e. requesting too many extensions in general). But it seems pretty counterproductive for the COA to dismiss a case because, as King illustrates, the client will get an appeal (or should anyway). We certainly have an ethical duty to dilligently represent every client, which is separate from the procedure. Sometimes it would seem more productive for the COA to call us up if we seem to be systemically failing than to start dismissing cases where the court would know the dismissal itself will necessarily result in a constitutional violation, only exacerbating matters. Dismissing appeals is an odd way to "protect" litigants.

[Update: the state did not file a PR and the mandate issued on May 3, 2007]