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Update: discovery orders

A month ago I wrote about a case here in Cuyahoga County where the judge had ordered the prosecution to provide their complete files to the defendant in an aggravated murder case, so that the defendant's experts would have the same information the state's experts did.  The prosecutor's office immediately filed a writ of prohibition with the Supreme Court, asking that the order be overturned.  At the time, I commented on that strategy:

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. . . 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. . . 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.

This morning, the Supreme Court granted the motion to dismiss the complaint, holding that the prosecutor had an adequate remedy at law by way of appeal under RC 2945.67, and that the judge's discretion over discovery matters meant that she didn't "patently and unambiguously lack jurisdiction" over the question.

Needless to say, I'm sitting by the phone, breathlessly waiting for the call from County Prosecutor Bill Mason offering me a spot on the payroll vetting his appellate strategies.

Seriously, at the time I wondered about the reasons for going the route of a writ of prohibition.  (You can tell I've been working on my alliteration exercises, huh?)  There was such a "hail Mary" quality to the whole thing, I thought it might have been based on a fear that direct appeal to the 8th District was even more futile, given that District's trend.  I guess we'll find out now.

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