In this case, a reconstruction hearing probably would have been possible at any time up until defendant's counsel died. Had defendant or his counsel acted vigilantly, the loss could have been discovered earlier and a reconstruction hearing could have been held before defense counsel died, before the trial exhibits and defense counsel's files were destroyed, and before memories faded. Many courts in other jurisdictions have also denied a defendant's request for a new trial when his absence has resulted in the loss or destruction of records. These courts have relied on the rationale that convicted criminals should not be rewarded for fleeing the jurisdiction before sentencing. Granting a new trial in these circumstances would encourage flight on the part of convicted criminals.
Defendants have a responsibility to be vigilant in preserving their appeal rights.
This court's denial of defendant's request for a new trial is not a sanction or punishment for his flight but is an unavoidable result of his long absence from the jurisdiction. That circumstance is present here, and defendant must bear the consequence of his illegal acts. Chief Justice Zimmerman, Associate Chief Justice Stewart, Justice Howe, and Justice Russon concur in Justice Durham's opinion. The court reporter's best recollection is that he stored his notes in a box along with the notes of another trial, which he then placed in a shed behind his home in September 1990. This box could not be found in his shed when the transcript of defendant's trial was requested in 1994.