Dyanamite instruction

Nathan Webb won in State v. Phillips, Appeal No. 95,561 (Kan. App. Feb. 23, 2007)(unpublished), reversing a Miami County sale conviction. The state charged Mr. Phillips with four drug offenses. After deliberating a few hours, the jury acquitted Mr. Phillips on three charges and announced that it was hung on the sale charge. The district judge gave an Allen instruction, even though the prosecutor "mentioned the danger in reading this controversial instruction." The jury returned a guilty verdict on the sale charge shortly thereafter.

The prosecutor was right and the COA held that giving the Allen instruction after deliberations had started was improperly coercive. The COA also held that there was not overwhelming evidence of guilt and therefore reversed the conviction and remanded for new trial. Korey Kaul noted that it is an odd harmless error analysis--how can evidence be overwhelming if the jury is hung? Isn't that perhaps the best evidence that the evidence is not overwhelming? Weird. But a win for this client.

[Update: the state did not file a petition for review and the mandate issued on March 29, 2007]