is the co-defendant's plea within the 4 corners? Does it matter?
by: Ryan • March 28, 2014 • no comments
Interesting issue. For just the second time that I know of, and the first since the wonderful legislative history was uncovered, a judge ruled on the co-defendant demurrer. Two defendants, one criminal episode, both charged with Assault III, but one additionally charged with two counts of Assault IV and the other with Harassment. The defendant charged with the harassment pled the day before trial. The demurrer was heard the morning of trial.
The judge indicated he was leaning towards granting it, or would have been, if the co-defendant had not pled. Now, when a judge tells a defense attorney that if things were different, I would have ruled in your favor, such claims should be treated with skepticism. There's many a slip between the cup and the lip. Or if you prefer your metaphors more high fallutin', then I'd say that between the idea and the reality falls the shadow.
Nevertheless, it raises an interesting issue. Can the co-defendant's plea cure a flaw in the indictment? Or does considering the plea fall outside the four corners of the indictment, which is not generally appropriate when ruling on a demurrer? Or rather than curing the flaw in the indictment, does the plea render any error in failing to grant the demurrer harmless?
Who knows?
