posted 2015 | State v. J.S.
Client was charged with Trafficking in GHB and possession of cocaine, which carried a 3 year minimum mandatory sentence. Defense counsel filed a motion to suppress arguing that the stop of the client’s vehicle was unlawful. The trial court agreed and suppressed all of the evidence. The State appealed the decision of the trial court. Defense counsel, who won the motion, told Mr. Forman that he believed that the appellate court would reverse the order suppressing evidence and that he was surprised that he had won.
Defense counsel referred the client to Mr. Forman to handle the appeal. The state filed its initial brief, arguing that the supporting caselaw required that the order be reversed. After reviewing the record, Mr. Forman agreed that the trial court was required to deny the motion based on the caselaw.
However, Mr. Forman realized something that no one else noticed. He noticed that the state made a slightly different argument on appeal than the one presented by the prosecutor in the trial court. Knowing that he would lose on the merits, Mr. Forman decided that the best strategy was to argue that the state should be prohibited from making this argument on appeal.
At oral argument, the appellate panel told the parties that on the merits, the state should win the appeal. However, they listened to Mr. Forman’s argument and entered an order affirming the decision of the trial court! The trial court’s order was upheld, all evidence was excluded and the state was forced to drop all charges! This appeal was only won because Mr. Forman noticed this technicality, which many other lawyers would not have noticed. Needless to say, the client was extremely thrilled!