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Appealing discovery orders

It's not easy being a judge.  Last month, the Ohio Supreme Court suspended Mason Municipal Judge George Parker for no fewer than 51 separate infractions, among others, that he "directed intemperate and degrading remarks toward parties and attorneys; attempted to coerce prosecutors, defense attorneys and criminal defendants into plea agreements; and used his judicial powers to humiliate courtroom participants."  The thought running through my head while reading the decision was Gosh, you mean they're not allowed to do that?  Parker had defended the case on the grounds that he had narcissistic personality disorder, and if I didn't want to practice law anymore, I'd probably say something to the effect that that's an occupational hazard of being a judge.  But I do, so I won't.  And then on top of the decision on Parker comes news from Virginia  about the removal of a judge who had decided a visitation issue by flipping a coin.

In truth, sometime I think I'd choose a coin flip, rather than subject myself to the whims of some judges.  That certainly would've been the smart move with the judges involved in the case of Browning v. Jennings, a decision out of the 6th District last week.

Browning was the defendant in a case involving shaken baby syndrome.  Pursuant to a motion filed by the prosecution, the trial judge had ordered the parties to exchange the names of all their expert witnesses, and to produce the experts at a pretrial hearing, so that the court could determine whether they qualified under Evidence Rule 702.

The defendant objected to this, primarily on the grounds that the state's right to discover the names of any experts was dependent on the defendant's having first requested discovery, and he hadn't done that.  The judge responded that the order fell within her broad authority to determine discovery and pretrial issues, and also rejected the defendant's claim that this forced him into the additional cost of having to pay for the experts to show up twice.  The defendant filed a writ of prohibition, but the 6th District dismissed it on the grounds that the defendant had an adequate remedy by way of appeal.

Of course, if he waits until after the trial to appeal, that doesn't provide much of a remedy:  the prosecution has had a full opportunity to cross-examine his experts before trial, and he's had to shell out the money to bring his experts to court twice.  Plus, an appeal after trial isn't going to be on the issue of whether the judge was wrong in ordering the discovery, but whether that order was so prejudicial that the defendant's conviction should be reversed.  Given the flexibility with which Ohio judges routinely apply the harmless error standard, good luck on that.

But what about an immediate appeal?  There's some old cases out of the Ohio Supreme Court indicating that an interlocutory appeal on a discovery issue isn't appropriate, but the statute on what constitutes a final appealable order, RC 2905.02, has been amended substantially since that time.  The statute now defines a "provisional remedy" as one dealing with "discovery of a privileged matter," and allows appeal of that if "the appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action."  That seems to fit this situation.  The reason that discovery by the state is premised on you requesting discovery from them is that compelling the defendant to produce information about his case implicates the 5th Amendment self-incrimination clause, and also arguably the 6th Amendment right to present a defense.  That would satisfy the definition of "privileged matter."

Be forewarned, though, that there's not a lot of case law on that in the criminal context.  The closest thing I could find was this 12th District decision from 2002, which allowed the state an interlocutory appeal on a discovery issue.  In that case, the trial court had ordered the state to disclose the names and addresses of all witnesses interviewed by the state (the crime had occurred in 1974), and the court of appeals held that this exceeded the scope of permissible discovery.  What's interesting is that the only reference to the basis for an interlocutory appeal was a slighting mention of RC 2945.67, which allows the state to appeal from certain trial court decisions prior to trial.  Discovery rulings doesn't happen to be one them. 

As you can see, the moral of this story is that if you're going to ask courts to do something they ordinarily wouldn't do, it helps if you've got "County Prosecutor" in front of your name.  But if you've practiced criminal law for any appreciable period of time, you've probably figured that out by now.

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