What a boring, lazy day. Not for me, mind you: I was busy as a beaver preparing my Civ Pro exam. Not as busy as my students who were studying for the exam, most likely, but still busy. But a boring, lazy day for the appellate judiciary in California. Only one published opinion by the Ninth Circuit and two published opinions by the California Court of Appeal. None of which are at all scintillating. Sadly.
So my mind wandered back to this case from a couple of weeks ago. Which is a rarity. Because it is exceptionally unusual for me to read an appellate opinion and think: "Hey, you know, I think that the defendant is actually innocent." Cold record. Viewed in the light most favorable to the prosecution. All that stuff. Plus the fact that I'm pretty sure that most of the people convicted by a jury are, in fact, guilty.
But -- and, believe me, this stunned me as much as anyone else -- I really did think when I read this opinion that Phillip Russell was, in fact, probably innocent of the offense. Or, at a minimum, that there was totally reasonable doubt as to whether he was guilty.
You'll have to read the entire opinion for yourself to see if I'm crazy. Which I admit is a distinct possibility. But basically the case involves a homeless guy (Phillip Russell) who stumbles across a broken-down, non-working motorcycle that's leaning against a chain link fence next to some trash cans at the back of a motorcycle repair shop. Russell figures the owner has abandoned it -- probably because the cost to fix the chopper is more than it's worth -- so he takes it; after all, the cycle is next to the trash cans, and the shop doesn't leave the motorcycles it's fixing out at night. Moreover, the motorcyle both doesn't work and has registration tags that have expired almost two years previously.
Three weeks later, cops doing a routine sweep of a homeless camp stumble upon the chopper (which, from checking the tags, they learn has been reported stolen) next to a tent. Russell enters the camp shortly thereafter, and one of the cops asks Russell whose bike it is, and Russel says "Mine." So after they cuff and Mirandize him, Russell -- who's eager to talk -- tells them the story about how he found the bike. He also says that, shortly after he got the bike, we was stopped by a cop for a traffic violation and told that earlier cop the whole story as well; at that point, the bike hadn't even been reported stolen. And the earlier cop pretty much confirms this testimony. Moreover, the day after being stopped, Russell -- who had now obtained the owner's registered address from the cop -- shows up at the apartment building listed on the registration to try to get the "owner" to sign over the pink slip for the "abandoned" chopper. But registered owner hasn't lived there for 18 months, so Russell strikes out. All of these events are confirmed by the testimony of the apartment manager, who talked to Russell that day and who was the one who told Russell that the owner didn't live there anymore.
That's basically it. So what do you think? To me, the stuff that Russell did -- finding the bike where and how he did, looking for the registered owner, fixing it up, etc. -- are totally consistent with his (entirely reasonable) story about thinking the bike was abandoned. But the court doesn't instruct on a reasonable "mistake of fact" (or "claim of right") defense, and so on the instructions that are given, Russell is found guilty of felony receipt of stolen property. Moreover, although he's given time served, at that point, he's already spent a year-plus in jail; because, as you might have figured, this homeless guy can't make bail.
So I really do think that this guy sounds totally innocent; or, at a minimum, that no reasonable jury could have found (on proper instructions) that there was no reasonable doubt. There is just way, way too much evidence corroborating Russell's (entirely reasonable) story. Parenthetically, not only do I think that an innocent man might well have spent over a year in prison, but I also find it somewhat appalling that the Attorney General argued that the error here was harmless because the evidence showed that Russell was clearly guilty beyond a reasonable doubt. What an utter crock. Justice McAdams properly rejects that argument, and reverses the conviction, but I would have been much harsher about this argument. Which I don't find at all plausible, or even the slightest bit funny.
So that was my take. As I said, I'm no softie, and don't usually think we're dealing with innocent people on appeal. But this case is different. See whether or not you agree.
