Long road to IAC finding

Alice White at the KU Defender Project won a new trial in Saleem v. State, No. 06-CR-1843 (K. Dist. Ct. Sept. 5, 2008). Mr. Saleem was convicted of murder in 1997 and lost his direct appeal in 1999 (here). Mr. Saleem filed an initial 1507 petition, which was denied in 2000. Mr. Saleem next filed a 2254 petiton in federal court, which was stayed pending filing another 1507 petition to exhaust federal claims. The Defender Project filed that petiton in 2004 and it was initially summarily denied. In April 2007, the COA remanded for an evidentiary hearing and last week, Judge Leuenberger granted a new trial.

Mr. Saleem based his IAC claim on defense counsel's failure to object to admission of a videotape that included prejudicial statements about prior bad acts. In light of defense counsel's testimony that the failure to object was an oversight, the district court rejected the state's claim that the decision was strategic:

It is preposterous to imagine any attorney who is providing the standard of performance guaranteed by the Sixth Amendment to advance prior bad acts of an alleged shooting as trial strategy in a murder case.

So more than ten years after initial conviction, Mr. Saleem gets a chance at a fair trial.

As a note of interest, the initial KSC case was one of the first times where we saw courts struggle over the difference (or lack thereof) between first and second degree murder. Justice Allegrucci described the problem in his concurring opinion:

By defining "premeditated" as simply meaning "to have thought over the matter beforehand," the majority has effectively converted second-degree murder to first-degree murder. "Intentionally" is defined as meaning "conduct that is purposeful and willful and not accidental. Intentional includes the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose.'" PIK Crim. 3d 56.04(d). How does one intentionally kill another human being without thinking about it beforehand? The jury is also instructed that if it does not find the defendant guilty of first-degree murder, then it should consider the lesser offense of second-degree murder. It is difficult to comprehend how a jury so instructed would ever consider the lesser included offense of second-degree murder.

As noted in the majority opinion, this court has used words such as "plan," "contrive," and "schemed beforehand" to define premeditation. This court has required that a defendant not only think it over beforehand, but also to come to the conclusion that he or she would kill the victim and then do so. The majority, by approving PIK Crim. 3d 56.04(b), has, in my opinion, essentially repealed 21-3402(a).

Although the PIK instruction has been modified, this problem continues to confound the KSC, as demonstrated by Justice Johnson's recent concurrning opinion in State v. Warledo, No. 97,759 (Kan. Aug. 8, 2008):

What I cannot grasp is the concept that one can have thought the matter over beforehand, when the intent to kill is formed during the course of committing the murderous act, e.g. while strangling or stomping the victim. In other words, in my mind, "beforehand" means prior to commencing the death-causing act, rather than during said act but sometime prior to its effecting the death. If we merge the concept that the killer must have thought over the matter beforehand, as in premeditated first-degree murder, with the concept that a killer must have formed the intent to kill prior to the victim's death, as in intentional second-degree murder, we have rendered the premeditation element redundant and opened the door to defendant's same elements argument.

Accordingly, I view portions of the closing argument to have been an incorrect statement of the law, especially where the prosecutor argued that premeditation could be formed "between the first and second stomps, between the second and third stomps, at any point during the stomping."

So keep litigating that point. Ask for instructions that require more for premeditation.

[Update: the state filed an appeal of this decision--appeal no. 101629.]