Rick Kittel and KU Defender Project student Kendra Oakes won in State v. Baughman, No. 100,604 (Kan. App. May 28, 2010)(unpublished), obtaining a new trial in a Pottawatomie County aggravated indecent liberties prosecution. This was another win for Rick on the so-called Allen instruction. (Previous wins by Rick and others were blogged about here, here, here, and here.) The majority does a nice job of reviewing the history of these case and others involving the Salts issue. Again, because defense counsel objected to the instruction in this case, the COA held that "the instruction, as given, considered in its entirety could have reasonably misled the jury."
Keep objecting to those pattern instructions!
[Update: the state filed a PR on June 28, 2010.]
[Further update: the KSC denied the PR and the mandate issued on September 9, 2010.]
[Further update: the KSC granted a motion to publish this decision, which was done on November 8, 2010 as reported here.]
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