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Supreme Court of Washington Reverses Case Due to Erroneous Jury Instructions

On September 3, 2009, the Supreme Court of Washington State handed down a unanimous en banc decision holding that a defective jury instruction on the law of self defense submitted by the defense attorney requires reversal.

Kenneth Kyllo, a Washington State prisoner, was incarcerated at the Cowlitz County jail when he became involved in a brief fist fight with another prisoner. The fight ended when Kyllo bit off the other prisoner's ear.

Witnesses gave conflicting accounts of who started the fight. The state charged Kyllo with second degree assault. At trial, Kyllo claimed self-defense. His attorney submitted a jury instruction on the right to "act on appearances," essentially stating that a person could defend himself if he believes "in good faith and on reasonable grounds that he is in actual danger of great bodily harm…." Although this tracks the language Washington Pattern Jury Instructions:
Criminal 17.04, it had already been noted in several cases that the use of "great bodily harm" was incorrect. In fact, for the use of non-lethal force, a person is entitled to act in self defense if he reasonably believes he is about to be injured and uses no more force than is necessary. This was correctly stated in a different jury instruction. The error was compounded by the prosecutor's and defense counsel's closing arguments where they stated that Kyllo had to believe he was going to be killed, or severely and brutally attacked. Kyllo was convicted and sentenced as a recidivist to life in prison without the possibility of early release.

Kyllo appealed. The court of appeals affirmed the conviction, but reversed the sentence as unfairly harsh. Kyllo requested discretionary review. The Supreme Court granted review and held that the instruction was erroneous in that it made it easier for the state to gain a conviction, and that Kyllo's counsel was ineffective for introducing the instruction with the erroneous standard and arguing the erroneous standard. The court of appeals was reversed as was the conviction and the case was returned to the trial court for a new trial.

See: State v. Kyllo, 215 P. 3d 177 - Wash: Supreme Court 2009

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Related legal case

State v. Kyllo