State of Georgia v. Russell Burton

In 1986 one Russell Burton (white male, 21, 5’11" tall, 175 lbs.) was convicted of rape (3 counts), sodomy (2 counts), and assault with DDW (3 counts) and sentenced to life plus 20 years. The following facts are pertinent to this case and conviction.

FACTS (Underlined material was suppressed at the trial).

1. The three alleged victims were high school students, ages 18, 16, and 15. They claimed they met their abductor at a supermarket parking lot. After they drove off, they say he followed them and motioned that there was something wrong with their car. They pulled off the interstate at which time he pulled next to them, exited his car and displayed a small gun and forced them into his car. They described him as white, stockily built, wearing a white t-shirt and having a pock-marked complexion. He was driving a small white car. He drove them to a secluded area and raped and sodomized each one once. They testified that he said he was from Florida, and that he demanded that they call him "sir." He then drove off leaving them to walk home.

2. Local police took the victims to a Toyota dealer where they identified the "small white car" as a Toyota. Police suspected Burton after running a record check on all owners of white Toyotas registered with the Army at Fort Benning. It was discovered that he had a prior rape arrest as a juvenile; the charge was dropped with prejudice when he pled guilty to forced entry. A photograph of Burton was placed in a catalogue of photos. All three victims identified him in separate viewings. Each of the three victims identified Burton in a line-up. He was then arrested and charged with three counts of rape, six counts of sodomy and three counts of assault with DDW.

3. A search of Burton’s home revealed a long-barreled 9mm automatic pistol that the victims identified as the gun used in their abduction. The victims also identified a gray shirt take from Burton’s home as the shirt worn by the assailant. The victims all stated that there was nothing unusual about their assailant’s physical appearance other than his complexion.

4. Two of the victims took showers immediately after returning home and were not given medical examinations. A third victim was examined and the medical report stated "no evidence of recent sexual entry."

5. Burton’s wife testified that the night of the incident she had driven the Toyota to the local Hilton Hotel where she worked and parked it there until about 1:30AM when she returned home. This would have been during the time of the incident.

6. The security guard at the hotel testified that, on the evening of the incident, Ms. Burton had refused his offer to walk her to her car after work, saying that her husband was going to pick her up.

7. A married couple living near to the Burtons testified that, on the evening of the incident, Mr. Burton had been with them watching television while his wife worked.

8. Documents from the U. S. Army Hospital at Fort Benning indicated that, two days before the alleged rape, Mr. Burton had had genital works burned from his penis. The treating physician testified that after undergoing this treatment "sex would have been the last thing on his [Burton’s] mind."

9. Mr. Burton’s sergeant testified that, at the time of the incident, Mr. Burton was also suffering from a severe case of poison ivy.

FACTS ASCERTAINED AFTER THE TRIAL

1. A polaroid photo taken two days before the incident showed that Mr. Burton’s poison ivy had infected his face.

2. One of the victim’s high school teachers stated to a private investigator that the three victims were notorious liars. She refused to testify for fear of being socially ostracized.

3. Another waitress at the Hilton Hotel informed private investigators that the security guard frequently made sexual advances toward waitresses and that waitresses always made up excuses to avoid being on the parking lot with him after hours. She refused to testify for fear of losing her job.

4. A private investigator, retained by the defense, re-enacted the crime and reported that it was impossible to drive the distance to the alleged rape scene in the time period during which the victims allege they were driven and also systematically raped and sodomized.

OTHER INFORMATION

1. The supermarket parking lot where the alleged victims say they met their abductor is a notorious gathering place for teens and the subject of police surveillance.

2. The jury selection and trial took place in Hamilton, Georgia, population 900, where the oldest victim’s father was president of the local bank.

3. The area in which the alleged rape occurred, Columbus and Fort Benning, Georgia, is the largest Army base in the United States, and local residents are frequently mistrustful of, and prejudiced toard, military personnel.

4. The jury found Burton guilty of three counts of assault with DDW, three counts of rape, and two counts of sodomy. They found him not guilty of one count of sodomy.

ASSIGNMENT

Choose one.

1. As Russell Burton’s defense attorney, prepare a brief requesting a writ of habeas corpus.

2. As Russell Burton’s defense attorney, prepare a brief for the governor’s legal office requesting a pardon on the grounds of miscarriage of justice.

3. As Russell Burton’s defense attorney, write a brief appealing his conviction on procedural grounds.

4. As prosecuting attorney, write a brief requesting that the Appellate Court deny Burton a new trial.

5. As prosecuting attorney, write a brief requesting that Burton be denied a writ of habeas corpus.

Copied in 2007 from now defunct URL http://www.engl.niu.edu/jschaeffer/300b/300bruss.htm