Dynamite instruction and more

Sarah Johnson won in State v. Thompson, No. 95,898 (Kan. App. July 6, 2007) (unpublished), reversing a Montgomery County drug conviction. The COA found three reasons to reverse: an Allen instruction given after jurors announced a deadlock, improper bad acts evidence, and improperly giving the jury a transcript of an admitted audio tape. The COA noted that:

The underlying facts and circumstances developed at trial are known by the parties and need not be iterated in this unpublished opinion. However, we do note that the prosecution against Thompson was based on underwhelming circumstantial evidence. As a result, the trial error we have identified did substantially prejudice Thompson's right to a fair trial.

Is "underwhelming" a word?

You know, I'll never understand why judges don't get that they can't give dynamite instructions after deliberations start. And you especially shouldn't tell jurors "I'll just read to you until you're blue in the face." Just one of life's mysteries, I guess.

[Update: the state did not file a PR and the mandate issued August 9, 2007].