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Open discovery -- the ante is raised

As my legions of faithful readers know, this blog is somewhat Cuyahoga-centric:  I practice in Cleveland, so I'm naturally going to devote more attention to what goes on in the courts here, especially the 8th District Court of Appeals.  While I was traipsing through the woods of central Ohio last week on my vacation, hunting for moose, only to find that Sarah Palin had apparently shot them all during a campaign stop here, I contented myself with the knowledge that there would be several appellate decisions from Cuyahoga County coming down in the interim which would serve as fodder for several blog posts. 

And then I come back to find that the most interesting local legal issue is the impending cage match smackdown bout between County Prosecutor Bill Mason and the Common Pleas judges.

Several years ago, the judges formed an ad hoc committee to look into modifying the local rules with regard to discovery.  That effort came to fruition last week, with a proposed amendment which would essentially create open discovery:  prosecutors would have to turn over a "discovery packet" including police reports, statements of defendants and witnesses, names and addresses of witnesses, lab and hospital reports and criminal records of defendants and witnesses.

Mason responded with a terse press release noting that his office was reviewing the proposed amendment.  He's been one of the most ardent opponents of open discovery, claiming that revealing the names and addresses of witnesses might put them in jeopardy, a position his press release maintained:  "Our priority has been and will always be the protection of victims and witnesses from intimidation and physical harm during the discovery process."

Well, not to put too fine a point on it, but that's pretty much of a pantsload.  First, the Criminal Rules already require "the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial."  Second, that very rule, in the very next sentence, contains this provision:

Names and addresses of witnesses shall not be subject to disclosure if the prosecuting attorney certifies to the court that to do so may subject the witness or others to physical or substantial economic harm or coercion.

Nothing in the proposed amendment changes that; in fact, the major problem with the new rules proposal, which you can read here, is that it reverses that procedure:  information may be redacted by the prosecutor if he decides it "pose a risk of harm" to someone or "threaten an ongoing criminal investigation."  If the information is redacted, the court can order disclosure "only upon a showing of good cause."  This seems to put the burden on the defendant to show that disclosure wouldn't be harmful, as opposed to the current rule which places the burden on the prosecutor to show that nondisclosure is necessary.  If the rule goes into effect, I wouldn't be surprised if the prosecutor's office starts buying black magic markers in bulk.

Mason also has an ace in the hole:  local rules can't conflict with the rules adopted by the Supreme Court.  (There's a case right on point out of the 8th District.)  Mason could say that the Criminal Rules don't require him to turn over witness statements -- in fact, those rules specifically contemplate the defense getting them only after the witness has testified on direct -- so the judges can't make him do it through a local rule.

Whether he will is another story.  The Supreme Court shot down open discovery a couple years back, but it's on the table again, and what's happened in the interim -- numerous cases, including capital ones, getting reversed because of the failure of prosecutors to disclose exculpatory evidence -- is making the position of opponents of open discovery more and more untenable.  Judges tend to side with judges, and a refusal by the prosecutor's office to abide by the local rules adopted by the judges here might result in the justices down in Columbus adopting rules that the prosecutor's office has to abide by.  My guess is that after some harrumphing about "protecting witnesses and victims," the prosecutor's office is going to comply with the new rules.  This isn't a hill Bill Mason intends to die on.

The new rules aren't in effect yet; there's a 45-day period for comments.  The proposed amendments haven't been posted on the court's website, but there's a link to them above, and another one here if you missed it.  As soon as I find out the comment procedure, I'll post the information.

One other update, while we're on the subject:  my hotly-anticipated seminar for CCDLA on US Supreme Court cases this year and next has been moved to Wednesday, September 24, at 6:00 PM. 

Tomorrow, I'll do a post that might be of more interest to my legions of faithful readers who don't reside in a town with two crappy professional sports teams.


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