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Open discovery in criminal cases?

Last week I wrote about a case in which a trial judge in a criminal case had ordered the defendant to produce expert witness reports and the experts themselves at a pretrial hearing, so that the state could examine them.  The defendant filed a writ of prohibition with the 6th District, arguing that the judge's ruling went beyond what Rule 16 -- the criminal discovery rule -- provided, especially given that the state's right of discovery from the defendant was conditioned on the defendant first requesting discovery from the state, and he'd never done so.  The 6th District kicked the case out, holding that the defendant had an adequate remedy by way of appeal.

Up here in Cuyahoga County, a decision by a trial judge in a capital case has put the shoe on the other foot.

Back in August of 2006, Cleveland Det. Jonathon Schroeder was one of several officers sent to arrest Wilson Santiago, a drifter who'd spent about ten years in Ohio and Florida prisons on a variety of drug and burglary convictions, and was now wanted on a rape charge.  Santiago opened the door, saw it was the police, and slammed it shut.  Two bullets came through the door; in what the newspaper described as "a million-to-one shot," one of them hit the thin slot on Schroeder's chest that wasn't protected by his bullet-proof vest, puncturing his lung and heart and killing him.

Santiago's now charged with capital murder, and back in March of this year his lawyers filed a motion asking the court to compel the production of all police reports and witness statements, so that the defense experts would have them in the preparation of their reports.  The parties bantered back and forth over this, with the prosecution finally agreeing to turn the information over to the defense experts, but not the defense lawyers.

The trial judge decided this was nuts -- how are the lawyers supposed to figure out what to ask the experts if they don't have the same information the experts do? -- and ordered the state to turn over everything to the defense.  (You can read the opinion here.)  That didn't go over too well with the county prosecutor's office, so on Tuesday they filed for a writ of prohibition with the Supreme Court, asking them to overturn the judge's decision.

There's a couple of interesting angles on this.  First, the institutional memory of the prosecutor's office apparently leaves something to be desired.  A Cuyahoga County judge did pretty much the exact same thing back in 1984, and the prosecutor's attempt to stop it through a writ of prohibition was flatly rejected by the Supreme Court, which held that the state had an adequate remedy at law, namely, an appeal under RC 2945.67.  (In fact, their appeal rights are stronger than a defendant's in that regard.  As I mentioned in my earlier post, the defendant in the 6th District case would have to show that he met the requirements for an interlocutory appeal, but 2945.67 clearly gives the state the right to seek leave of appeal from any decision of the trial court, other than a verdict.)  The Supreme Court came to the exact same conclusion in the exact same fact situation a year later.

The state tries to get around this in its brief by using the exception in prohibition law that the availability of a remedy of appeal isn't a requirement if the court "patently and unambiguously" lacks jurisdiction to enter the order.  That's a real stretch, though.  There are some cases where the Court has held just that, most recently when a Cuyahoga County judge (the same one as in the 1984 case, coincidentally) correctly foresaw that Blakely doomed Ohio's sentencing laws, and tried to empanel a jury to make the factual findings regarding sentencing.  But you can make make a pretty good argument that a judge doesn't have the power to order a jury trial on issues which the state legislature has clearly placed in the hands of the judge.  On the other hand, the appellate courts have traditionally been quite willing to grant a trial judge the right to control discovery, and make whatever orders she deems necessary in that regard, reviewable only for abuse of discretion.  Then, of course, there's the problem of the 1984 and 1985 decisions, which are "on point," as we lawyers like to say.  I don't see how the state gets around that.

There's also a problem of timing here.  In January of 2006, the Supreme Court rejected an amendment to the criminal rules which would have allowed open discovery, despite the fact that it received over 800 letters in support of the change, and only 20 against it, all from prosecutors.  (And I wouldn't be surprised if all 20 were from Cuyahoga County prosecutors; as I've mentioned before, our prosecutor's office has one of the most restrictive discovery policies in the state.)  Since that time, the Court's granted a new trial because of the prosecution's failure to disclose exculpatory evidence (after which the defendants, who'd served over 16 years in prison, were acquitted in a retrial), and just last month reversed a death penalty case for the same reason.  Given some of the language in the latter opinion, this might not be the best time for the prosecution to claim that Rule 16 should be strictly construed against the defendant.

In that context, what's interesting about the judge's opinion in Santiago's case is that it doesn't rest on the exculpatory evidence angle, but on the more fundamental issue of due process:  can a defendant get a fair trial if the prosecution's experts appear more knowledgeable than the defendant's, simply because they have access to information the defendant's experts do not?  And beyond that, what purpose is served by continuing to permit trial by ambush in criminal cases, by allowing such limited discovery as the rules currently permit?  As the judge indicates in her opinion in Santiago's case,

It is noted that notwithstanding Crim.R. 16, courts in some counties in this state routinely order police reports be turned over to defense counsel and in other counties prosecutors voluntarily turn over police reports to the defense.  No ill effect from these procedures has been reported.

Maybe it's time to open the door.

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