State v. Crane, Minn.Ct.App., 6/2/2009. This litigation began even before Underdahl I, 735 N.W.2d 706 (Minn. 2007). Thereafter, the trial court ruled that the state didn't have the source code and so denied the defense request for it. As we all know now, Underdahl II, 2009 WL 1150093 (Minn. 4/30/2009), that's wrong. What, therefore, is the remedy for Mr. Crane? Nothing, as it turns out.
The state charged Mr. Crane both with being under the influence and with having a blood alcohol level over the limit. The appellate court concluded that the trial court's denial of the motion for the source code was prejudicial on the blood alcohol level count, but it was not prejudicial on the under the influence count.
There's a dissent that is actually more interesting that the majority opinion. The dissent would uphold the trial court because Underdahl II's assertion that the state has the code is a legal fiction, and because Mr. Crane didn't cite the correct - if there is one - subsection of Rule 9. Mr. Crane's motion cited subdivision 2(1), which the dissent thought was fatal, as explained in footnote 2:
Such relief may be obtained pursuant to subdivision 2(3), which authorizes a district court to “require the prosecuting attorney to disclose to defense counsel . . . relevant material and information” that is actually possessed by the prosecuting attorney. See Minn. R. Crim. P. 9.01, subd. 2(3). Subdivision 2(1), however, by its express terms, applies only to matters that are not in the possession or control of the prosecuting attorney but are “within the possession or control of an official or employee of any governmental agency.” Minn. R. Crim. P. 9.01, subd. 2(1). Crane did not move for, and could not have obtained, relief under subdivision 2(3) because it is undisputed that the prosecuting attorney in this case, the city attorney for the city of Mankato, does not have possession or control of the source code.
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