I mentioned last week that, despite Bill Mason’s seeming embrace of open discovery in his interview with the Cleveland Plain Dealer’s Regina Brett last week, he’d sent the judges a letter backing away from that.  I’ve seen a copy of the letter since then, and frankly, it’s not quite as in-your-face as I’d imagined.  The letter basically adopts a “gee, if you’d only told us about this we’d have worked it all out” tone.  Mason’s surprise that a rule has been proposed at all is a bit much, considering that the proposal’s been batted around by the judges for close to six years.  Besides, the judges didn’t consult the defense bar organizations in the drafting process, either.  And, of course, there’s nothing final about it:  the rule, which you can find here, is simply a proposal, to which comments are invited.  (Comments are due by October 27, 2008, and the comment process is explained here.) 

Still, while Mason’s letter has a generally conciliatory air, it also leaves him the out I’ve mentioned before:  that any rule the court adopts on this subject can’t contradict Criminal Rule 16.  In support of this, Mason cites State v. Lambert, which is pretty much on point.  Montgomery County had adopted a rule virtually identical to the one proposed here, and the 2nd District held that the rule’s requirement that prosecutors turn over police reports and witness statements conflicted with Rule 16.

Lambert’s not the best case to rely on here.  The case went up to the Supreme Court, which decided there’d never been an appealable order, and remanded the case back to the trial court for reinstatement of the order requiring the prosecution to turn over the requested material.

Actually, Lambert was a bit of an oddity from a procedural standpoint.  Montgomery had been using the rule for some time (in fact, it still is), without any problem.  Lambert, though, involved an environmental violation which was prosecuted by the attorney general’s office, and they squawked when the enhanced discovery rules were applied to them.

Still, while Lambert is somewhat ambiguous, the case law is pretty definitive on this point.  Actually, not just case law:  Article IV, Section 5(B) of the Ohio Constitution specifies that “courts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the rules promulgated by the supreme court,” and Criminal Rule 57 says pretty much the same thing.  Although the issue hasn’t come up often, the courts have pretty routinely struck down local rules which conflicted with the criminal rules.  Typical is State v. Davis, where the trial court refused to permit the defense witnesses to testify, because the defendant hadn’t provided the names of its witnesses as required by local rule.  The court noted that the defendant had never requested discovery from the state and, as the criminal rule didn’t require him to provide discovery to the state if he hadn’t requested it from them.

The bottom line here is that if Mason wants to put up a fight, he may very well win it.  Whether he wants to put up a fight is another story.  As I’ve mentioned before, the Ohio state prosecutors in general, and Mason’s office in particular, have taken some major hits in the public relations arena:  it seems that hardly a month goes by any more without some case or another being reversed for failure to disclose exculpatory evidence.  There’s no question that the judges are sick of it:  their proposed rule change was adopted unanimously, and in a court with 34 judges, about a third of which are former prosecutors, that’s saying a lot.  And with the way the newspapers are hammering the issue, Mason’s obviously realized that a complete stonewall on this isn’t politically feasible, especially in an election year.

One puppy that needs to be put to sleep is the persistent claim that the prosecutors are merely looking to protect witnesses and victims.  As I’ve mentioned on a number of occasions, the present rules already allow a prosecutor to refuse to divulge the name and address of a witness if he certifies to the trial court that this could result in harm to the witness.  I’ve also mentioned that this procedure is rarely invoked, a point reinforced by my conversation with the judge who showed me Mason’s letter:  in his eighteen years on the bench, he’s never had a prosecutor request certification.