The Kansas Supreme Court on Friday ordered a new trial and new attorney for a man convicted of robbing a Lawrence convenience store in 2006.
Charles Smith was charged with entering the Presto Convenience store, pointing something under his shirt at the clerk and making off with the contents of the register.
The robber’s image was captured on the store’s surveillance video. The clerk picked Smith out of a lineup and four people testified that that was Smith on the videotape, according to court records.
Prior to the trial, Smith asked Douglas County District Court Judge Jack Murphy to appoint another attorney for his defense.
Smith said his attorney, James Rumsey, refused to put on a defense that suggested Smith couldn’t have committed the robbery because he was physically infirm and that he had no motivation because he had a job.
But Rumsey told Judge Murphy he saw the videotape and his client’s face was on it. “I just can’t participate in putting on evidence that I know would be fraudulent,” said Rumsey, who had filed a motion to withdraw as counsel.
Judge Murphy told Smith he wasn’t going to appoint a new attorney because all lawyers are prohibited from presenting evidence that they feel is false.
But the Supreme Court said Rumsey had crossed the line into the jury’s domain when determining his client was guilty based on the videotape.
“Here, the jury, as fact finder and final arbiter of guilt, had the sole responsibility to view the videotape, to look at the defendant, to make a finding as to whether the person shown in the videotape was the defendant, and, ultimately, to determine whether the defendant was guilty of robbery,” Justice Lee Johnson wrote.
The trial judge should have recognized this problem and appointed a new attorney, the court said. The court ordered a new trial with a newly appointed counsel.