In April 2003, Roger Russell was arrested and charged with the murder of James Davidson. Russell was found guilty in 2004, but just two months ago, an appeals court voided that verdict. Now, Russell is guilty again after that same appeals court changed its mind.
After being taken into custody by College Station police, accused of stabbing Davidson in the heart with a pocket knife, Russell asked for his cell phone to call his lawyer. But the arresting officer said he'd be asked no questions until he heard his Miranda rights.
Under interrogation at the police department less than an hour later, Russell was given his rights, did not ask for a lawyer, and confessed to the murder, a crime he was later found guilty of.
"In every case in which there's a statement by the defendant, it's always contested," said Shane Phelps with the Brazos County District Attorneys Office, "and we knew that going in that it would be contested, and likely, what the grounds were. We researched it extensively. We satisfied ourselves beyond any doubt that we were right about the law, argued that to the court, the court agreed and allowed the statement to come in."
But the 10th Court of Appeals in Waco saw it differently, and this past November, overturned the guilty verdict, believing Russell's request for a lawyer at the scene of the crime was sufficient.
The prosecutors, including Shane Phelps, thought differently, and after filing a petition for discretionary review, the appellate court invoked Rule 50 of the Rules of Appellate Procedure, where within 30 days, they can "reconsider and correct or modify the court's opinion or judgment."
Upon further review, Russell's verdict was restored to guilty. His request for a lawyer, the court says, did not come at the time of interrogation, so his rights were not violated.
"I haven't seen this happen in my career as a prosecutor," Phelps said. "It does happen. There's obviously a rule that allows for it to happen. But it's pretty unusual."
Russell does still have the ability to appeal if he so chooses.