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Open discovery is coming... maybe

The Cleveland Plain Dealer, like many other newspapers in the country, is facing a decline in readership.  Its answer to that crisis has been to cut back its pages; the front section, containing national and international news, has gone from a customary sixteen pages to eight, and the Metro section has suffered a similar amputation.  Nonetheless, Cuyahoga County Prosecutor Bill Mason found himself featured in not one, but two news stories yesterday.

The first was Regina Brett's column on open discovery in criminal cases.  I've got to give the woman her props:  she's been relentless in pushing for open discovery.  In fact, her prior columns highlighting the many examples of prosecutors failing to disclose exculpatory evidence have probably caused Mason -- a consummate politician -- to see the writing on the wall and sue for peace.  He tells Brett that he's "not against open discovery," that the Ohio Prosecutors Association is working on a statewide proposal, and that "I think we're there." 

Where "there" is isn't entirely clear.  Mason's first proposal is that sharing is a two-way street: "if we're going to open our files, [the defense] should open theirs."  That's nice in theory, but it confuses the respective roles of prosecutor and defense attorney.  If there's open discovery, I don't have a problem with giving the prosecution statements I may have gotten of any witnesses I intend to present at trial.  But what if I talk to a witness who incriminates my client?  Even if I'm (obviously) not going to call the witness, do I still have the duty to turn over that information to the prosecutor?  There's no question that the government has the duty to disclose exculpatory information, but there's no duty on the part of the defense to disclose inculpatory evidence; that's not the way our system works.  Indeed, it's quite easy to see how such an obligation would have a "chilling effect" on the defense investigation of a case; if I've got to turn over anything bad a witness tells me, I'm not going to be talking to many witnesses.

Equally problematic is Mason's suggestion on how to handle what Brett describes as his "biggest concern":  "protection of witnesses and victims who testify."  Mason proposes that open discovery not be permitted in cases "where there is a documented history of threats," or "when a prosecutor believes a witness or victim could suffer harm."  In those cases, "the defense would have to go to a court of appeals and ask a judge to grant open discovery."

The first problem with this contention is that there is already a procedure for protecting victims and witnesses:  under the present rules, "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."  As I mentioned a couple of weeks back when  I talked about the open discovery rule the Cuyahoga County Common Pleas judges had drafted, that proposal shifted the burden on this issue to the defense:  the prosecutor could redact information if he believed it could pose a risk of harm or "threaten an ongoing criminal investigation," and the court could then order disclosure only upon a finding of "good cause."  (This is the only error in Brett's piece:  she has it that the prosecutors have to ask the judge to redact the material.  They don't.)  Mason's proposal does the same thing.

This is not a trivial issue.  Giving the prosecutors discretion to determine what is turned over, and putting the onus on defense attorneys to establish that there's "good cause" to make complete disclosure, when they don't even know what's being withheld, leaves substantial opportunity for abuse, and could wind up being little different from what we have now.  What's more, while the concern over protection of witnesses is certainly legitimate, there's no indication the problem is pervasive.  There are two attorneys in my office who've got a combined 68 years experience of exclusively practicing criminal law, and between the two of them have probably tried over fifty capital cases.  I asked them, and between them they could remember exactly one time when the prosecutor certified that disclosure of a witness name could jeopardize the witness' safety.

The prosecutors are in full possession of the facts of any particular case.  If they have reason to believe that a witness would be in danger, they should have the burden of persuading a court of that fact.

To a large extent, the prosecutors have been steamrollered on this subject; according to what I've heard, the Supreme Court is close to adopting the same open-discovery rule that it rejected just two years ago.  I'll have more on the specifics of the proposal next week.  It looks like the prosecutors' goal at this point is to whittle the proposal at the margins, to retain some power to control what gets disclosed.

Or it may be that they'll be taking a more confrontational approach after all.  Despite Mason's make-nice session with Brett, I got word last night that Mason sent a letter to the Common Pleas judges advising them that he wouldn't comply with their local rule proposal because it conflicted with the state rule, as I suggested he might in my earlier post.  Stay tuned.

The significance of all this is reinforced by the second article in which Mason appeared yesterday.  That one was about his announcement that Joe D'Ambrosio would be retried for a murder he allegedly committed in 1989.  D'Ambrosio spent nearly two decades on death row before a new trial was ordered by a Federal judge two years ago, a decision affirmed by the 6th Circuit in March.  The reason?  The Federal courts determined that prosecutors had withheld several pieces of evidence which could have exonerated D'Ambrosio, and that he probably wouldn't have been found guilty if the evidence had been turned over.

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