Justice Kitchens, appellate counsel? (updated)

In the much-watched case of Kristi Leigh Fulghum v. State -- which achieved special notoreity when it appeared that Fulghum had persuaded her brother, Tyler Edmonds, to assist her [in killing her husband] -- the MSSC today affirms the conviction but reverses and remands on the death sentence, spanking the State and trial court for excluding a social worker's mitigating evidence.

Of some interest is a Kitchens concurrence -- joined, alas, by Dickinson -- which provides free legal advice for any future proceedings, re: deficiencies in the indictment, etc.

None of these issues was raised on appeal. However, Fulgham’s appellate counsel was the same as her trial counsel, so she will have an opportunity (should she so desire) to raise the issues in a properly filed petition for post-conviction relief.

Justices Randolph and Lamar find this a bit much:

It shall come as a great surprise if the appellate counsel for Fulgham’s post-conviction-relief motion will not present the issue, having received this instruction on advocacy from such an esteemed jurist as Justice Kitchens. I decline to join in offering such advice, as I fully expect this litigant will appear before this Court again. A jurist should adjudicate, not advocate. In resolving disputes presented for adjudication, we should neither favor, nor offer advice to, an accused or the State.

So, if and when these issues arise on PCR and return to the MSSC, do Kitchens and Dickinson recuse, having prejudged the legal issues in question, and served a dual role as judge and advocate? Somehow I doubt it.

(Points however to Kitchens for writing "None of these issues was raised." "None" is singular, grammar mavens to the contrary notwithstanding.)

... NMC (in comments below) and Will Bardwell suggest it was just a plain-error analysis; Bardwell even gives his post the misleading title "the fight over plain error."

But Kitchens doesn't say it was plain error; indeed, if he *had* made that argument, it would've required a dissenting opinion, not a special concurrence. A skim doesn't show anyone in any opinion even mentioning plain error.

I'm totally sympathetic to Kitchens's argument -- that the State should not charge anyone with robbery, let alone base a capital sentence on robbery, without troubling to state in the indictment WHAT (more or less) was allegedly stolen. And that might've risen to plain error.

All right then -- but did Kitchens not really think of that? Was there some weird tactical basis for not dissenting on that ground?

Plain error isn't an explanation for Kitchens's opinion; it only makes it more mysterious. As if the law clerk who drafted it hadn't heard of plain error, and no one else thought of it either.