Panel questions whether wrongly admitted evidence prejudiced Russell's earlier defense

A panel judge asked whether erroneous admission of documents related to an SEC investigation and press materials prejudiced Robert Russell and affected entitlement to appellate relief. "What's the prejudice ... when the court, stipulate wrongly admitted those documents on the SEC investigation, all the other stuff?" the judge asked; Steven Stolle, counsel for Russell, answered, "It basically we we don't know."

Stolle said the evidentiary issue was not pleaded as a separate error on appeal but was subsumed within the broader challenge to dismissal; he argued a large volume of disputed materials and press releases not properly admissible under the rules may have affected the appearance of justice. He cited concerns about ER 201 and suggested the court should be attentive to admission of contested materials. The panel asked whether, as appellant, Russell bore the burden to show prejudice for relief; counsel replied the issue ties into whether the dismissal was an abuse of discretion and how the court reviews the record.

No ruling was made on the evidentiary question at argument; the panel concluded the calendar.