“May I ask?”
“What’s that?”
“About Warnovits,” says Rusty. “Is it decided?”
“I have a draft.”
“Was justice done?” After his performance last week, Rusty is reluctant to ask directly whether the case is being affirmed or reversed until the opinion is public. And just now, as a matter of friendly torment, George chooses not to answer. Instead, Judge Mason places his good hand on the head of his friend in brief, mutual benediction.
“We try,” George says. “We can only try.”
ENDNOTE
1. Our Brother Koll dissents, claiming that the videotape in fact was inadmissible under our state’s eavesdropping law. [citation] This point was not raised in this Court or at trial, and thus we cannot consider it on our own, since we do not believe that admission of the tape, even assuming it might have been barred, allowed for a miscarriage of justice. We are driven to this conclusion by the real-world results of a decision to reverse on those grounds. Under our limitations provisions, the prosecution would have a year from the date of reversal to reindict the defendants for the eavesdropping offense, inasmuch as it was part of the same criminal transaction for which they were originally convicted. Since the tape could be admitted in that new case, conviction would be a virtual certainty. It does not strike us as a miscarriage of justice that the defendants were convicted of one felony rather than another, particularly because the underlying sexual assault could clearly be considered by the trial judge in aggravation of the sentence, making a significant prison term inevitable. Furthermore, it’s quite likely that after a grant of immunity or plea bargains involving some of the defendants, one or more would be prosecuted for both eavesdropping and the rape, and could end up with an even longer sentence than the one imposed in this case. Any defendant who suffered that result would undoubtedly return to this court to complain about the miscarriage of justice caused by our meddling.
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