Friday, September 25, 2020

Decision to not challenge involuntary statements hoping to appease judge is deficient performance

Richard Ney and David L. Miller won in Khalil-Alsalaami v. State, No. 115,184 (Kan. September 11, 2020), obtaining a new trial in a Riley County aggravated criminal sodomy prosecution. After his convictions were affirmed on appeal, Mr. Khalil-Alsalaami filed a motion pursuant to K.S.A. 60-1507 asserting ineffective assistance of counsel. The district court denied relief, but the COA ordered a new trial. The KSC granted the state's PR, but ended up also ordering a new trial, albeit on slightly different grounds than the COA.

The main issue for the KSC was the decision to drop a challenge to the admissibility of several incriminating statements and stipulation to the voluntariness of those statements. A divided KSC held that Mr. Alsalaami showed deficient performance. First, the majority noted that there were substantial issues related to voluntariness and that defense counsel knew of them:

[Defense counsel] testified that he evaluated these factors in deciding to forego completion of Freed's Jackson v. Denno hearing and filing of a defense motion to suppress, but this blanket statement, adopted and embraced by [the district court], conflicts with his other, more factor-focused testimony in the 60-1507 hearing. Those passages in the record demonstrate that [defense counsel] was aware that three of the five voluntariness factors this court has enumerated would have cut in favor of the defense. 

The majority also noted issues with language and the lack of an interpreter, expounded upon by Justice Beier as described below. Viewing all of the circumstances, the majority concluded the record showed deficient performance:

In sum, we do not share Judge Bosch's certainty that dispensing with a challenge to admission of Khalil-Alsalaami's partial confession was a necessary component of a legally or logically supported trial strategy or that any such challenge would have been hopelessly futile. Quite the opposite. On the undisputed testimony of [defense counsel] under the governing law as it had developed at that time, we hold that Khalil-Alsalaami received deficient representation pretrial and at trial. 

The majority also noted its discomfort with defense counsel's rationale for not such issues because they were worried that they might anger the trial judge:

we must comment briefly on counsel's expressed intention to avoid angering the trial judge by aborting the Jackson v. Denno hearing and avoiding pursuit of a motion to suppress. We understand that judges are human and that experienced defense counsel must size up and react to any individual judge's—or collective jury's—apparent patience for arguments that may or may not be successful. But, here, counsel professed to believe that their abandonment of their client's challenge to admission of his confession might mean that [the district court] would grant them what amounted to a potentially undeserved favor on another, later legal position. Specifically, they believed the judge ultimately demonstrated his appreciation of their forbearance on the confession challenge when he accepted their argument for exception to an evidence bar under the rape shield statute. This calculus bothers us for two reasons. First, in a he said-she said sex crime case, especially one involving an alleged victim who is 13 years old, a confession from the defendant is one of the strongest pieces of evidence the State can possess. In fact, it can produce a conviction with no other support. It speaks far more loudly to a jury than the alleged sexual abuse victim's tangential and legal sexual conduct with an age peer. Second, in our courts, judges are charged with evaluating the merits of each legal argument presented by a party without fear or favor, and without regard for their affection for or patience with counsel representing that party. In other words, [The district judge's] oath forbade him from engaging in the kind of cynical tit-for-tat counsel testified that they expected from him. We cannot encourage this view of how judges operate by endorsing it as the basis of an acceptable strategy under the first prong of Strickland.

The majority held the statements in this case were obviously prejudicial and therefore ordered a new trial. 

Justice Beier concurred and noted a possible additional issue was the failure to provide an interpreter:  

It is undisputed that Khalil-Alsalaami's primary language is not English. Period. The plain language of K.S.A. 75-4351 entitled him to have an interpreter to assist him with questioning by law enforcement. It entitled him to have an interpreter with him in all court proceedings that were part of the prosecution whose goal was to imprison him. Native English speakers such as his trial counsel and the judge presiding over his trial were not equipped to determine otherwise merely because they interacted with him well enough to suit them. This is also true of the district judge who denied Khalil-Alsalaami's K.S.A. 60-1507 motion.

Justice Beier suggests that in future cases where persons who do not primarily speak English but are denied an independent interpreter should build a good record regarding the defendant's actual facility with English to facilitate appellate review.

[Update: the state filed a motion for rehearing/modification on September 29, 2020.]

[Further update: the KSC granted the state's motion for rehearing/modification and set thematter on its December 2020 docket.]

[Further update: it is possible that the rare decision to grant a motion for rehearing may have been influenced by significant turnover on the KSC. The original opinion was decided 4-2, with Chief Justice Nuss not participating in the final decision, Senior Judge McAnany sitting for retired Justice Johnson, and District Judge Godderz sitting in for Justice Rosen, who recused for unspecified reasons. Both Judge McAnany and Judge Godderz were in the majority. At the rehearing argument on December 18, 2020, the three new justices sat, and Judge McAnany and Judge Godderz did not. Justice Rosen still did not participate in the rehearing argument. So the make up of the KSC deciding the motion for rehearing is quite different than the panel deciding the original case.]

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