Now that Andrew Luster's south-of-the-border vacation has ended behind bars in California, his lawyer is revisiting the convicted rapist's chances for another trial.

Earlier this month, when Luster was still on the run, an appellate court denied his request for an appeal, citing the "fugitive disentitlement doctrine," a principle of law that bars certain fugitives the right to appeal.

On Friday, however, his lawyer, Roger Jon Diamond, launched an effort to reinstate his client's appeal bid on the grounds that Luster is no longer at large.

Diamond contends that unlike other fugitives the doctrine has been applied to, Luster fled during his trial, not during the appeals process—preventing him from ever launching the appeal bid he may deserve.

The argument prompts the legal question: does when a defendant flees affect their right to an appeal?

Luster, heir to the Max Factor cosmetics fortune, was collared early Wednesday morning by bounty hunter Duane "Dog" Chapman in Puerto Vallarta, Mexico.

Duane "Dog" Chapman

Convicted in absentia of raping three women after giving them the "date rape" drug GHB and sentenced to 124 years in prison, Luster had been a fugitive for five months.

A day after Luster began serving his 124-year sentence in California's Wasco State Prison, his lawyer got off to a rocky start with the appeal bid.

Early Friday morning, Diamond went to the Los Angeles branch of the California Supreme Court with petition in hand. A clerk told him the appellate court still had jurisdiction, according to a representative with Diamond's office. (The Supreme Court did not return requests for comment.)

The lawyer quickly dictated an abbreviated request for a rehearing with the 2nd District Court of Appeals in Los Angeles. That court agreed with prosecutors earlier on June 10 that Luster had forefeited his right to challenge his conviction when in January he headed for Mexico during a recess in his trial.

Now that Luster is in custody, the "fugitive disentitlement doctrine" rationale the court invoked in declining to hear his appeal is moot, says his lawyer.

Honed by case law rather than coded in state statutes, California's version of the "common law principle" of fugitive disentitlement serves to punish those who "flaunt" the system, discourage potential fugitives from fleeing, and free the court from making decisions that are of questionable value when the defendant is thousands of miles away.

Luster's lawyer contends that the law has so far dealt only with defendants that fled after they were convicted and not, as Luster did, during the actual trial.  

"It is time for this Court to clearly spell out whether there is a difference between a defendant who flees while his trial is pending as opposed to a defendant who flees while his appeal is pending," said Diamond in a copy of his Supreme Court petition obtained by CourtTV.com.

The real question is: Will the appeals court think the difference is significant enough to reverse its own decision?

"He's arguing the strict definition of the statute.  I think that's a good argument," said criminal defense attorney and former prosecutor Terry Bird.  "What he's saying is, 'Look, we never filed an appeal in the first place.  We never had a chance to start the process.'"

One recent California case involving a fugitive who was granted an appeal after he was captured could bode well for Luster's own bid for a chance at a new trial.

In 1999, Hyun Gu Kang was convicted of rape, sodomy, robbery, burglary, and conspiracy charges.  He posted bond, and then skipped town before his sentencing. 

An appeal filed on Kang's behalf was dismissed, but in October 2001, Kang was extradited from South Korea, and his attorneys asked the original trial judge to reinstate the appeals process.  In April, 2003, the appellate court ultimately granted Kang an appeal.

"Because Kang is now in custody and no longer a fugitive, the decision of the appellate court is enforceable," said the court.  "It may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable."

Kang's case does not dovetail neatly with Luster's, but Diamond is hoping the court will focus on the one key similarity—that both men fled before the appeals process had began.

"I don't think it's out of the question that he might be able to get his appeal reinstated now that he's been captured," said Jean Rosenbluth, an expert on the issue and a professor at USC Law School.

"Now that he's been captured, it almost puts the government in a worse position," said the former federal prosecutor.  "People are very loathe to put people in jail for the rest of their lives without giving them a chance to show the trial was fair or unfair."

According to Rosenbluth, the appellate court could change course and grant the returned Luster an appeal.  It then would look at Diamond's complaints with the first trial.

Diamond said Friday that if his appeal was reinstated, it would focus on "at least 25 errors of law." 

Luster and Diamond have both maintained that the victims were "acting," and the sex was consensual.  But during the trial, Diamond's efforts to advance this theory were curbed.

According to Los Angeles criminal defense attorney Anthony Salerno, this could be one of the chief concerns for an appeal—should the case make it that far.

"They basically cut out the heart of his defense," said Salerno.

If the appellate court denies the appeal, the matter will become an issue for the Supreme Court on July 10, 30 days after the initial denial.

A likely argument for the prosecution, said Bird, a former prosecutor himself, would be that Luster denied himself the chance to launch an appeal—so it's his tough luck.

Deputy district attorney Maeve Fox, who prosecuted Luster, said Diamond was "drawing a difference without a distinction." In other words: "Who cares?"

"I just cannot imagine that they're going to make a distinction," said Fox.  I think under Kang the court at least has to give him at least a cursory review." But "They're going to look at the weight of the evidence that we have, including those videotapes, and regardless of any minor errors that there were made, it doesn't matter.  That was the easiest case I ever tried.  The amount of evidence was crushing.  If you looked really closely you could see the girls breathing in the videotapes, but they looked dead."

Joseph Lee of the California Attorney General's office, said he had not reviewed Diamond's aborted Supreme Court argument, but would maintain his course in the court of appeals.  "It's our position that the appeal has been dismissed and the right to the appeal has been forfeited," said the lawyer.