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A defense point of view

The 2nd District came down with an interesting, and somewhat gutsy, decision the other day in State v. RussellWhether it was the right one is pretty much a matter of perspective.

Actually, this was the second time the case had been up before the appellate court.  Russell and his girlfriend, a prostitute named Hargrove, had hatched a plan to rob one of her johns, and Russell took it to the next level by shooting the john in the head.  The two ditched the body and the john's car, then took off for Kentucky, Detroit, and eventually California, where they were arrested three weeks later.  Hargrove took a deal and testified against Russell, and he was convicted of aggravated robbery, murder, and grand theft. 

The court had little trouble dispensing with Russell's appeal on the first go-around, rejecting claims regarding the search of the couple's apartment, insufficiency of the evidence of grand theft of the car, and general ineffective assistance of counsel claims.  A while later, though, Russell filed a motion to reopen the appeal, alleging two new grounds of error, and the court agreed to reopen and reach the merits.

The first new error was regarding the charge against Russell of having a weapon under disability.  Russell elected to have this tried to the bench, but when the proposed jury instructions were given to counsel for review, included among the verdict forms was one for the weaons under disability count.  Defense counsel pointed that out, and the judge assured him that it wouldn't be given to the jury.

Well, guess what?  When the jury came to its verdict and sent the forms back, lo and behold, there was the one for the disability count, left blank and unsigned.  The defense made a motion for mistrial, which the court overruled without asking the jury how the verdict form might have affected their deliberations.

The form didn't define "disability," nor did it specify any underlying crime.  Still, this was too much for the appellate court:  it found that jury could have inferred that disability meant that defendant had been previously convicted of a crime involving a weapon, and that if it had drawn that inference, the result would have been severely prejudicial to the defendant.

The next issue was that the plea agreement that Hargrove had signed stating that as a condition of the plea, she had to take and pass a lie detector test.  Of course, the agreement was introduced when she testified, so the jury heard the part about the polygraph.  Although the 2nd District had previously ruled that introduction of evidence that a person has agreed to take a lie detector, or even has taken one, without evidence of what the results were, isn't error, this panel decided that those cases were wrong.  In light of the other evidence against Russell, though, it found the admission didn't amount to plain error -- defense counsel hadn't objected at trial -- and given the prior cases, counsel wasn't ineffective for not doing so.

When I first read this, I thought it was a good defense decision, of which there are rather few nowadays; last week, for example, the State went 11 and 0 in cases in the 8th District.  But on further reflection, I'm not prepared to unequivocally state that it was the right one.  There really wasn't any question about Russell's guilt, and I could easily see a lot of courts brushing aside the argument about the verdict form on harmless error grounds, especially in light of the fact that the form (and the accompanying instructions) didn't even define disability, let alone tell the jury what the defendant's disability was.

That doesn't make that result right and this one wrong, though.  Even we lawyers tend to buy into the myth that the law is a fixed truth, and that there's only one right decision to be made in any case.  That's not the way it works.  As a criminal defense lawyer, I look at Russell and am pleased with the result, and so I think it's the "right" decision.  A prosecutor, or anyone else, could look at the case and decide that Russell caught an undeserved break; after all, when you're convicted of murder and aggravated robbery and your claim in your first appeal is insufficient evidence as to the grand theft auto, you have to figure that the question of Russell's guilt didn't exactly hang in the balance.

The most important part of an appellate decision is not necessarily the result, but the process by which the court arrives at that result.  Russell is not a good or bad decision because it comes down for one side or the other, but because the court thoughtfully analyzes the law on a particular subject, and comes to a reasoned, defensible conclusion.  Actually, the part that didn't result in reversal is probably more significant than the part that did:  the court's decision to overrule its precedent on references to witnesses taking polygraphs was somewhat courageous, and more importantly, entirely correct.

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