Michael P. Whalen and Krystle M.S. Dalke won in Littlejohn v. State, No. 115,904 (Kan. App. January 10, 2020)(unpublished), reversing the summary dismissal of motion pursuant to K.S.A. 60-1507. The COA had initially reversed, but the KSC granted the state's PR and held that a movant had to show exceptional circumstances to reach the merits of a successive motion. On remand from the KSC, the COA found that Mr. Littlejohn had shown such circumstances:
Here, while Littlejohn's previous attorneys recognized the importance of his mental capacity in the overall scheme of his admissions and culpability, his trial counsel did not raise the issue as a defense to the specific intent necessary to commit the crimes for which he was charged nor to further bolster his claim that Littlejohn was a victim who was compelled to participate in the crime through compulsion. He did not mention Littlejohn's low IQ at all during the trial, including opening and closing statements.
Littlejohn was 18 years old when the senseless and horrific murder for which he was convicted occurred. He was sentenced to life in prison plus months. With a diagnosis of mental retardation, charges based solely on an aiding and abetting theory, and a defense of compulsion we believe justice would be served by an evidentiary hearing to determine whether Littlejohn's trial counsel's performance was ineffective and whether Littlejohn was prejudiced by it. Littlejohn has met his burden. Accordingly, we find there are exceptional circumstances shown to allow Littlejohn to bring a successive K.S.A. 60-1507 motion. Therefore, we reverse and remand for a hearing on the issue of whether trial, appellate, and 60-1507 counsel were ineffective for failing to investigate or present Littlejohn's mental capacity defense. In doing so, we specifically express no opinion on the merits of such contentions.
[Update: the state did not file a PR and the mandate issue on February 19, 2020.]
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