Beem v. McKune

with whom SEYMOUR, HENRY, and LUCERO, Circuit Judges, join.

I respectfully dissent. Pursuant to Kansas law as stated in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), Petitioners were incorrectly charged, tried, and convicted of a crime. Williams, citing Kansas Statute § 21-3603 (in effect at the time), holds that when a defendant is related to his victim he “must be charged with aggravated incest and not indecent liberties with a child.” Carmichael v. State, 255 Kan. 10, 872 P.2d 240, 246 (1994) (emphasis added). It is undisputed that Petitioners should have been charged from the…