As is typically the case, defense lawyers can file pretrial appeals — called “interlocutory appeals” — to the Supreme Court only after getting permission to do so by the trial judge. In Duke’s case, Superior Court Judge Bill Reinhardt, who denied the defense team’s request for funding, also denied their request to appeal his decision before the trial began.
In its order, the Supreme Court said it will hear arguments on the single question of whether it has the discretion to entertain the substantive pretrial appeal on the funding issue absent the trial judge’s permission.
The unsigned order said the court voted 6-3 to hear the pretrial issue. Chief Justice Harold Melton and Justices Michael Boggs and John Ellington dissented, the order said.