06122008 - News Article - Legal 'oversight' not likely to modify Cantrell's conviction - ROBERT CANTRELL

Legal 'oversight' not likely to modify Cantrell's conviction
Post-Tribune (IN)
June 12, 2008
Robert Cantrell's last-ditch effort to block his fraud conviction likely won't go far, experts say.

On the final day of his fraud trial last week -- and after federal prosecutors had closed their case -- Cantrell's lawyer pointed out that prosecutors never asked any of their witnesses to point out Cantrell in the courtroom.

The oversight, defense attorney Kevin Milner argued, was grounds for Judge Rudy Lozano to enter a verdict of not guilty to the 11 counts of mail fraud without sending the case to the jury.

Lozano let jurors reach their verdict -- ultimately, guilty on all counts-- but the judge will not formally enter the judgment until after he has reviewed filings on Milner's motion by the U.S. Attorney and by Cantrell later this month. Milner did not return calls from the Post-Tribune. U.S. Attorney David Capp declined comment.

Despite the apparent oversight, Valparaiso University Law School professor David Vandercoy says the verdict likely will stand.

"I don't think I've ever heard of anybody ever getting off because of failure to properly identify a defendant," the criminal law professor said.

"There's no doubt from the witnesses' identification that the jury had any question that the defendant was the guy sitting next to the defense lawyer," Vandercoy added. "Maybe they thought he was sitting at the prosecution table, but the question was whether he was the one doing the criminal acts."

Prosecutors consistently asked witnesses several routine questions: "Do you know the defendant, Robert Cantrell?" and "Is he here in the courtroom today?" Each time, the witnesses replied "Yes."

Leonard Cavise, a law professor at DePaul University in Chicago, called it "Trial Practice 101" that attorneys "always have the defendant identified in the courtroom."

While prosecutors Orest Szewciw and Wayne Ault are "kicking themselves" about the oversight, Cavise said, the error likely won't turn the case -- either in Lozano's eyes or on appeal.