IAC finding upheld

About two years ago, we blogged about Alice White and the Defender Project getting state habeas relief for a client after a fairly long and arduous process (detailed here). The Court of Appeals just affirmed the habeas grant in Saleem v. State, No. 101,629 (Kan. App. Aug. 27, 2010)(unpublished).

The state argued that defense counsel had made a strategic decision to allow admission of a videotape that included statements about other shootings. The COA held that the record amply supported Judge Leuenberger's findings:

The district court found that Saleem had met his burden and that [defense counsel] did not permit the videotape's admission as part of his trial strategy. The district court's findings are supported by [trial counsel's] testimony at the hearing, in which he candidly admitted his mistake and strongly denied that this failure was part of his trial "strategy."

Nevertheless, the State suggests [defense counsel's] decision to admit the videotape was a strategic decision intended to bolster Saleem's claim that he had acted in self-defense. While the state is correct that [defense counsel] allowed the admission of the videotaped interview for strategic reasons, this fact has no bearing on whether [defense counsel's] representation was constitutionally deficient for allowing the jury to hear the prejudicial statement contained within the videotape. Moreover, as the district court noted,"[i]t is preposterous to imagine any attorney . . . to advance prior bad acts of an alleged shooting as trial strategy in a murder case."

The COA went on to find that, especially in a case that focused on allegations of premeditation, the deficient performance was prejudicial and supported the district court's grant of a new trial.

[Update: the state filed a PR on September 23, 2010.] 

[Further update: the KSC denied the state's petition and the mandate issued on November 4, 2010.]