The difference between objecting and not objecting

Rick Kittel and KU Defender Project student Danny Moskowitz won in State v. Page, No. 98,153 (Kan. App. April 3, 2009), obtaining a new trial in a Butler County rape proseuction. Readers remember that we blogged (here) a few weeks ago about a "zone of victory" win for Rick in State v. Salt, where the KSC held that the common deadlocked jury instruction telling the jury that another trial would be a burden was legally incorrect. Because there was no objection in Salts, the KSC applied a clearly erroneous standard and did not reverse.

In today's case, the defense attorney did object:

Here, the defendant objected to the giving of the deadlocked jury instruction. Consequently, we must consider whether the error identified in Salts is reversible when challenged at trial. We must determine whether the instruction challenged here properly and fairly stated the law as applied to the facts of the case and whether the instruction could have reasonably misled the jury.

According to our Supreme Court, telling a jury that "another trial would be a burden on both sides" is misleading, inaccurate, and confusing. Moreover, in this case the jury actually informed the district court a hung jury was a real possibility. In fact, the jury indicated it was deadlocked as to count II. The district court responded by recessing for the evening. When the jury returned the next day, the jury requested the court read back certain testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant's convictions must be reversed.

It's a nice reminder for us appellate-types that some arguments that do no necessarily help the current client may help other clients down the road. And it's a nice reminder for trial-types that objections matter. A lot.

[Update: the state did not file a PR and the mandate issued on May 7, 2009].