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Odds and ends from other districts

Yin and Yang, good and bad.  The good is the 6th District's decision last week in State v. Hackett.  The cops had been tipped off by an informant that on a particular date and time, the defendant would be leaving a particular residence in a particular car with a particular license plate, and would be carrying a particular ounce of cocaine with him.  The police staked out the place, and, as foretold by the snitch, the defendant came out and got into the car.  The informant called the police and told them that the defendant had the coke on him. 

The police pulled the car over, got the defendant out, and patted him down.  Nothing.  They patted him down again.  Still nothing.  They called the informant, who told them that the cocaine was located in the defendant's pants pocket.  On the third search, they finally hit paydirt, finding an eighth of an ounce of cocaine wrapped in eight little bags underneath the defendant's belt buckle.  The whole process, from stop to find, had taken fifteen minutes.

The trial court denied the motion to suppress, but the appellate court reversed.  The informant's tip had created a sufficient reasonable suspicion to serve as the basis for a stop.  Whether that would have furnished suspicion for a frisk as well is another matter, but the court skipped over that question, because regardless of whether there was need for a frisk, there certainly wasn't need for three of them.  As the court pointed out, "the rationale for a protective search becomes attenuated with successive searches."  The situation in Hackett isn't going to come up that often, but it's a good case to have when it does.

The bad is presented by the 4th District's decision in State v. Cobb, where the defendant had appealed on two grounds:  the failure of the trial court to grant a continuance so that he could retain counsel, and its imposition of maximum, consecutive sentences.  The appellate court affirmed, noting that the motion to continue was filed the day of trial, and the defendant had agreed to the sentences.

But there's a little bit more to the story here.  I checked the online docket of the lower court case, and it turns out that Cobb was indicted on two first-degree felony counts involving drugs, one for possession and one for trafficking, on March 13, 2006.  He was arraigned exactly 30 days later, on April 12.  The first, and only, pretrial was held three weeks later on May 4, and the trial date was four days after that.  The retained attorney showed up at the pretrial, at which point "he became aware of the complexity of the case and his difficulty in preparing for the May 8th trial date."  He filed a continuance on the morning of the 8th, but the trial court denied it.  The defendant then pled guilty to the indictment and agreed to serve maximum, consecutive sentences.

I'm not going to spend time picking apart the appellate court's opinion.  They make some valid points:  retained counsel could have asked for a continuance at the pretrial, but instead waited until the day of trial, when the prosecutor has 15 witnesses subpoenaed and ready to go.  In fact, the court noted that the trial judge would have been "hard pressed to justify denying" a continuance if it had been requested at the pretrial "in light of the last minute disclosures by the state."  This reference is apparently to the fact that the docket shows the prosecutor filed a supplemental discovery packet a week before the pretrial.  Yet the docket also shows that the prosecutor then filed three additional disclosures after the pretrial, the last being on the very day of trial.  Why didn't this "last minute disclosure" justify a continuance?

That's almost beside the point, though.  One of the problems with us lawyers is that we tend to get so enmeshed with the law that we lose sight of the fact that it's not an end in itself, it's simply a means to end: achieving justice.  The court's opinion meticulously tracks each legal argument, without ever once considering the case as a whole.  We have a man facing serious charges in a complex case, brought to trial just three weeks after his arraignment -- and just how many of those fifteen witnesses do you think defense counsel had an opportunity to interview in those three weeks? -- with his motion to continue the trial date denied even as the prosecution was filing additional discovery material, and he winds up pleading guilty to the indictment and agreeing to serve the maximum prison time.  I'm sorry, but I think it's difficult to reconcile that result with a system that supposedly prizes justice and liberty.


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