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Habeas Relief Reversed in KS "Partial Verdict" Case

By Shari Allison

Tomlin v. McKune, No. 07-3286., 11/13/08 - District?s court?s grant of habeas relief to state petitioner reversed. Defendant was charged in Kansas state court with one count of rape and one count of aggravated indecent liberties with a minor. As to the rape count, the jury was instructed on aggravated indecent liberties as a lesser included offense. The jury sent out a note indicating that was split on the rape count and asked for help in breaking the deadlock. The court gave a standard Allen charge and sent them back to deliberate further. The defense then moved for a mistrial, which the court took under advisement. The jury then sent out another note, stating that it had moved to 11-1 guilty on lesser charge, and further stating, ?We have all agreed to Not Guilty to Count 1 Rape...continue to full post

Full post as published by Tenth Circuit Blog on November 14, 2008 (boomark / email).