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New trial for IAC in Labette County

Dan Monnat and Paige Nichols won on a remand hearing in State v. Weimer, obtaining a new trial in a Labette County rape prosecution. At trial, a jury acquitted Mr. Weimer on three of five counts, but convicted on the remaining counts. On direct appeal, Mr. Weimer received a remand hearing pursuant to State v. Van Cleave. At the remand hearing, Dan and Paige asserted several instances of deficient performance:

1. Failure to review key exhibits and seek redaction of inadmissible evidence contained within those exhibits.
2. Failure to object to the jury's review of key exhibits that had not been played in open court.
3. Failure to object to a deputy's trial testimony that he disbelieved the defendant.
4. Failure to object to the prosecutor's improper questions of defense witnesses.
5. Failure to ensure that the jury was aware that the claimed rape did not occur "on or around" the date that the state alleged and was required by the court's jury instructions to prove.
6. Allowing Weimer to be convicted of a crime with which he was not charged, and over which the district court had no jurisdiction.
7. Calling an expert witness whose testimony damaged Weimer and aided the state.
8. Failing to object to prosecutorial misconduct during closing argument.
9. Trying a case without making adequate accommodations for defense counsel's hearing problems.
10. Cumulative deficiencies.

Judge Jack agreed with eight of the ten assertions of deficient performance and, particularly given the closeness of the case and the fact that the jury apparently disbelieved the complaining witness in part, he held that five of them were independently and cumulatively prejudicial:

The State takes the position that Weimer received effective assistance of counsel and a fair trial. After reviewing the evidence and the arguments presented and the authorities cited, the court makes the following findings of fact and conclusions of law. In summary, the court finds that trial counsel's performance was deficient under claims 1,2,3,4,5,6, 8 and 10, and prejudicial under claims 1,2,3, 8 and 10.

In particular, both sides put on expert testimony about the trial attorney's performance and its effect. Mr. Weimer put on Richard Ney. Here is what Judge Jack had to say:

The Court finds that, given his credentials, and given this Court's own
observation of his testimony, Mr. Ney's is credible and persuasive.

Based on the district court's findings, the COA reversed and remanded for a new trial. Here is the COA order.

Full post as published by Kansas Defenders on July 07, 2010 (boomark / email).