Failure to instruct on defense and improper argument combine to require new trial

Washburn intern Jessica Dotter and I won in State v. Ortega, No. 106,210 (Kan. Oct. 3, 2014), obtaining a new trial in a Finney County attempted aggravated interference with parental custody prosecution stemming from Ms. Ortega's attempt to take custody of her children from a school after SRS had taken custody of them.  The COA had already ruled that the district court erred by failing to give instructions on mistake of fact (i.e. Ms. Ortega did not know that she could not take custody of her own children), by failing to give a lesser-included offense instruction on attempted interference with parental custody, and for improper argument related to Ms. Ortega's mistake of fact.  A majority of the COA had held that these errors were harmless.  The KSC agreed with Chief Judge Malone, who had dissented, and held that a new trial was required.  In particular, because the instructions entirely failed to inform the jury regarding the effect of a mistake of fact, the jury was left without guidance, notwithstanding the defense ability to present evidence and argue the point:

Significantly, nothing in the trial informed the jury that Ortega's mistaken belief could be a valid defense. Contrary to the panel's conclusions and State's arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel's ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor's statement that the lack of notice was irrelevant and did not matter.

Because of the compounding effect of the errors in this case, the KSC applied a constitutional harmless error test and held that the state failed to prove beyond a reasonable doubt that the errors were harmless.

[Update: on remand, the prosecutor elected to not retry Ms. Ortega on the charge of attempted aggravated interference with parental custody and dismissed that charge.]