It’s tough to get a case reversed in the court of appeals, and that’s doubly so for a criminal case.  For all the talk of hardened felons getting off on “technicalities,” you’ll see many more instances when a court will justify a dubious outcome by invoking that old standby, “harmless error,” or parroting the line about how “a defendant is entitled to a fair trial, not a perfect one.”  Close calls almost always go the state’s way, and that’s especially true if the case involves a clearly guilty defendant arguing a suppression issue, or a defendant charged with a heinous crime.

So I’d like to highlight a couple of decisions that went the other way last week.  The one for today is the 12th District’s decision in State v. Scott, where the defendant was convicted of a cocaine sale largely on the basis of a statement she made to a police officer.  The defendant’s lawyer filed a motion to suppress, but the trial court denied it because it was filed more than 35 days after arraignment.  The defendant’s appeal focused primarily on the issue of ineffective assistance of counsel.

Even had the motion been filed properly and heard, it might’ve been a close call.  There was some question whether the defendant was really “in custody” at the time she made the statements, and the appellate court noted that the record wasn’t at all clear exactly when the defendant was given her Miranda rights.  It would have been very easy for the court to conclude that, in light of that, the defendant had failed to show affirmatively that she’d been prejudiced by her attorney’s actions; there are literally hundreds of such decisions, affirming cases where attorneys didn’t file suppression motions, and in general you’ve got a slightly lesser chance of hitting the Mega-Lotto than you do of getting a case reversed for incompetence of counsel.  In fact, the only reversals I’ve seen for failure to properly file a motion to suppress were cases where the motion was a clear winner.

Nonetheless, the court reversed.  Actually, it may be that they were more troubled with the trial judge’s handling of the motion to suppress than with the lawyer’s handling of it.  The rule requires the motion to be filed within 35 days of arraignment of 7 days before trial, whichever is earlier, but allows the court to accept filings outside that time “in the interests of justice.”  The arraignment was in May of 2005, and the trial date was set for July 26, 2005.  The motion to suppress was filed on July 18, eight days before trial, but the judge booted it because it was more than 35 days after arraignment.  The trial was then continued for another four months.  Object lesson for appellate attorneys:  it’s a lot easier to get a case reversed if the appellate court feels the defendant didn’t get a fair shake from the trial judge, and one of the ways of showing that is if the trial court is a stickler about time periods at the expense of deciding issues on their merits.