By a 5-4 vote in Densmore v. State, the Court today reversed the cocaine-sale conviction of a Lauderdale County man whose lawyer did not receive the identity of his accuser, a confidential informant, until the morning of trial. After a brief continuance, the trial judge declined to delay the trial further and proceeded despite the last-minute disclosure. A majority of the Court held that decision was an error that entitles Densmore to a new trial.

The case is similar to the Fulks v. State decision handed down in July, in which the Court reversed another conviction earned only after a last-minute disclosure of crucial evidence. Unlike the unanimous mandate leveled in Fulks, the Densmore vote was as close as you can get, but Justice Pierce's dissent focuses exclusively on what he viewed as procedural infirmities that precluded review of the discovery question, so I don't think that the narrowness of today's decision shouldn't be taken as a sign that four justices have all of a sudden changed their mind about the Fulks holding. In fact, Justice Pierce says explicitly in his final paragraph that, if not for what he viewed as procedural bars, he would have concurred with the majority.

Trial attorneys would do well to preserve the heck out of Rule 9.04 issues from here on out. Clearly, the Court is ready to crack the whip on this issue.