Eleven years after Soukky and Sythongsay ("Khek") Luanglath were
convicted of a violent robbery they maintain they had no part in,
lawyers argued that a judge's inconsistent findings entitled the
brothers to a new trial in a case "gone disastrously wrong."
Arguing before the Rhode Island Supreme Court, John A. MacFadyen
and Deputy Public Defender Barbara Hurst underscored former
Superior Court Judge Corrine P. Grande's "shocking" reversal of her
own findings with regard to eyewitness identification.
"I suggest that what happened here is so unusual, so bizarre, that it violates their constitutional right to due process of law," said MacFadyen, the defendants' court-appointed appellate lawyer.
Soukky Luanglath, 36, and his brother Khek, 34, have been free on bail since 1993, when they were sentenced for a 1990 robbery in Providence's Washington Park section. During the robbery, members of the Souvaneleuth family were tied up at gun point and robbed of $25,000 in cash and $13,000 in gold. In their brief submitted to the Supreme Court in June, Hurst and MacFadyen say that this case "began as a straightforward eyewitness identification. Three armed robbers, more or less perfectly masked, broke into a dwelling house and terrorized a Laotian family." At first, several victims said they did not actually see the perpetrators' faces. A few days later, "one family member emerged to accuse Khek and Soukky Luanglath as being two of the perpetrators," their brief states.
In the days after the robbery, the victims attempted on their own to determine who had robbed them in their homes, including by making a privately orchestrated "show up" at a Lao community concert, where the Luanglaths were performing in a rock band. By the end, the victims "were confidently asserting that the perpetrators' faces were in full view, and they could make positive and certain identifications."
In 1993, Grande found that eyewitness identification in the case was "totally unreliable," but that Rhode Island law gave her no authority to grant a new trial based on that finding, MacFadyen said. But in 2000, after the Supreme Court reversed that decision and remanded the case to Grande with instructions to give "full effect to her original findings," Grande "did a 180-degree turn" and called the eyewitness identification "totally reliable," MacFadyen said. "Our claim is that it was wrong for her to do that, beyond the scope of what the [Supreme] Court told her to do," MacFadyen said after yesterday's proceedings. "It is not what was contemplated, and consequently, in essence denies you the due process of law that you're entitled to in Rhode Island."
Arguing for the state, Special Assistant Attorney General
Christopher R. Bush said that Hurst and MacFadyen's "entire
argument is premised on their interpretation of Judge Grande's
first decision. The state argues that she never reached that
definitive conclusion." If the Supreme Court does not grant a
new trial, the brothers stand to serve 15 years in prison, then
face deportation to Laos, said MacFadyen. MacFadyen said the
brothers have not had any run-ins with the law in those ensuing
years, and "their willingness to appear . . . they clearly aren't
running from anything . . . is proof positive" of their
innocence. "If they go to jail -- I can't say the words. It's
a travesty of justice," said Vilay Luanglath, the defendants'
brother. "A huge error by the state."
Other issues raised by Hurst and MacFadyen yesterday included Grande's issuance of an "Allen charge" to the jury without first disclosing to lawyers that jurors were split 10 to 1. (An Allen charge refers to instructions given to a jury that remains deadlocked after deliberations; an Allen charge essentially urges jurors to go back to the table and move things along). Hurst also argued that it was not clear whether the defendants understood their rights after one juror refused to vote during deliberations. The Luanglaths agreed to waive their right to a jury of 12, and allow a jury of 11 to continue. "Nowhere in this record -- was it explained that they had a right to a jury trial of 12," Hurst said. Hurst also called problematical Judge Grande's "oblique reference to a mistrial" as an option in that situation. Grande did not outline that option during a chambers conference with defense counsel, said Hurst, but did so later in open court, after the defense counsel had already explained the options to the Luanglaths (minus the option for a mistrial).
Bush, the special assistant attorney general, countered that the defense attorneys "knew there was a split -- they did not know what the split was, but they knew the jury was having problems." But defense counsel did not press the matter, said Bush. "The point is, she [Grande] specifically asked defense counsel if they had an objection, and they said 'No,' " Bush said. As Grande's findings took center stage, Chief Justice Frank Williams said, "It pains me that it's the trial judge who's at issue today." Supreme Court Justice Maureen McKenna Goldberg referred to Grande's statement that she did not disclose the 10-1 split among the jurors before delivering an "Allen charge." Goldberg said that Grande "just about said, by not disclosing the split before delivering the Allen charge, that 'I've prejudiced the defendants.' This is a trial judge who indicts herself -- that's what we're dealing with."