Mock trial to help prosecutors prepare for high court case

Friday, November 16, 2012

The ones in the robes may not be John Roberts, Antonin Scalia or Ruth Bader Ginsburg. Even so, says Rigel Oliveri of the Univeristy of Missouri School of Law, it would be a mistake for Jack Koester to take their questions lightly. They sure won't be.

When Koester gets in front of the real high-court justices in January, said Oliveri, a school dean and former justice department lawyer, he'd better be ready.

That's why the Columbia, Mo., university where Koester graduated is staging a mock trial today intended to help the Cape Girardeau County assistant prosecutor prepare for what could be the biggest day of his legal career -- when he argues before the U.S. Supreme Court. Members of the school faculty will be playing the role of the justices as Koester fields questions about a case that he's handled since 2010.

"They're all going to give him a hard time, basically," Oliveri said. "They're really going to grill him. They're going to give him a sense of the questions he's going to get when it's the real thing."

The real thing comes Jan. 9, when Koester will stand before the court and make oral arguments from a Cape Girardeau County case that could have far-reaching affects on the nation's search-and-seizure laws and the 1.4 million people arrested for DWI each year. The issue the court will decide is whether drivers who have been stopped on suspicion of DWI have Fourth Amendment protection against compulsory blood tests.

The case began in October 2010, when Tyler McNeely of Jackson was accused of driving above the speed limit and crossing the centerline. He was taken by a Missouri State Highway Patrol trooper to Saint Francis Medical Center, where a blood sample was forcibly taken, even though McNeely said he did not give his consent and the officer did not have a warrant.

The case has gone back and forth from trial courts, through the appellate process and to the Missouri Supreme Court. The U.S. Supreme Court is expected to settle an issue that has the country's courts divided.

Koester realizes how important the issue is, which is why he's taking such great pains to prepare. He said he was grateful that the law school was putting the event together. He welcomed the idea of tough questions.

"It's going to help me internalize the questions," Koester said.

Also attending the mock trial will be Cape Girardeau County Prosecuting Attorney Morley Swingle, in what will be his last official day on the job. Swingle offered his resignation last week to take a job as a federal prosecutor in the U.S. attorney's office.

He said he would not miss the mock trial and he also will be in Washington, D.C., in January. He consistently has called Koester one of the best assistants he's ever had.

Swingle understands the importance of the issue, and Oliveri agreed.

"This is an issue of nationwide importance," she said. "It could change the procedure for how the states treat getting this evidence from someone suspected of a DUI. And we're always glad to help out a couple of our graduates and give back to the legal community."

As he will in January, Koester will act as prosecutor today and Swingle -- in his last official act as a county prosecutor -- will take on a role he hasn't had in more than 25 years when he plays defense attorney.

Steve Wilson was McNeely's original defense attorney who argued successfully at the circuit court level that the blood test results should not have been admissible as evidence. The American Civil Liberties Union will represent McNeely before the Supreme Court, but Wilson will be there, he said. He believes that the Missouri Supreme Court got it right, too, when it ruled that warrantless blood draws are an infringement of the Fourth Amendment.

"It's really going to come down to this: Do the cops have the right to stick a needle in your arm against your will?" Wilson said. "If we keep losing protections like these, what will we have left?

smoyers@semissourian.com

388-3642

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