California prosecutors are asking a state appellate court to prevent fugitive rapist Andrew Luster from appealing his conviction, arguing that because he fled during trial he should not be entitled to a review of the case.
Six weeks ago, Luster’s attorney filed a notice of appeal on behalf of his missing client to seek review of at least 22 contested rulings that the defense contends prevented Luster from receiving a fair trial and may have led to his flight.
“There are serious appellate issues in this case,” Santa Monica attorney Roger Jon Diamond wrote in a brief this week. “The appeal was not filed for any frivolous reason.”
But prosecutors are asking the 2nd District Court of Appeal in Ventura to dismiss Luster’s appeal, arguing that a fugitive has no right to challenge his conviction.
Luster, 39, a self-employed investor and great-grandson to cosmetics mogul Max Factor, jumped bail and fled in early January during a recess in his Ventura County trial. Testimony continued and a jury found him guilty on multiple counts of rape, poisoning and drug possession involving three women. He was sentenced to 124 years in prison, but remains at large.
In a brief filed earlier this month, Deputy Atty. Gen. Joseph Lee asked the court to dismiss the appeal because Luster remains a fugitive and thus has forfeited his right to challenge the conviction.
Lee noted that in California, the legal issue has been settled for more than a century. And, citing a 2002 case, he wrote that the rationale boils down to the notion that a fugitive “has no right to ask the courts to review the very judgment that the fugitive flouts.”
The prosecutor cited an 1876 case in which the U.S. Supreme Court declined to hear a fugitive’s writ petition, noting that if the judgment were upheld the defendant probably would not appear to submit to the sentence. And if it were reversed, and a new trial ordered, the defendant would appear, or not, depending on how it suited his interest.
In Luster’s case, Lee wrote, the defendant “chose to absent himself from the proceedings before the jury rendered a verdict -- an act that derided the criminal justice system and, thus, rendered appellant undeserving of its leniency.”
This week, Diamond filed a response to Lee’s motion and urged the appellate court to consider his client’s case.
He argued that there were significant errors by the Superior Court judge, mostly dealing with the admissibility of evidence, which hurt the defense case and resulted in an unfair trial. Diamond went on to suggest that evidence may yet show that Luster’s “departure” was excusable based on those violations.
“Under these circumstances, it would be fundamentally unfair to dismiss his appeal before an evidentiary hearing can be conducted,” Diamond wrote. “It is not clear whether this court would excuse a departure of a defendant in a criminal case when that defendant has been treated unfairly by ‘the system.’ ”
But in an interview Friday Lee said that Luster had options other than running.
“If he took issue with the court’s ruling or something that went on in the proceedings, the proper and lawful way to proceed is to appeal the conviction, not flee from the law,” the prosecutor said.