Linda Barnes-Pointer won in McHenry v. State, No. 97,202 (Kan. App. Feb. 29, 2008), affirming Judge Tuggle's grant of a K.S.A. 60-1507 motion and ordering a new trial in a Mitchell County rape/indecent liberties/sodomy case. The COA applied the same standard as it would to review of a denial of habeas relief--substantial competent evidence--and held that Judge Tuggle's findings regarding defense counsel's complete failure to investigate the state's witnesses or witnesses named by Mr. McHenry constituted deficient performance. And where the record contained no physical evidence, the COA held that the defecient performance was prejudicial.
Nice to again see the COA hold the state to the same standard as defendants in its appeal.
[Update: the state did not file a PR and the mandate issued on April 3, 2008].
[Update from the comments: Judge Cudney agreed that the State violated the statutory speedy trial stattue on June 18, 2008. Mr. McHenry's case has now been dismissed and he is discharged from further liability.]
[Further update: the state appealed the dismissal, but voluntarily dismissed that appeal on January 29, 2009. So the dismissal should be final!]
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Just an update. Judge Cudney agreed that the State violated the Statutory Speedy Trial upon my Motion to Dismiss in her ruling of June 18, 2008. Mr. McHenry's case has now been dismissed and he is discharged from further liability.
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