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Open Discovery: Update

As you know, I've been following the recent proposal by the judges of the Cuyahoga County Common Pleas Court to allow "open discovery" in criminal cases.  (Prior posts here, here, and here; you can read the judges proposal here.)  Today, the Plain Dealer's Regina Brett wrote another column on the subject, detailing what happened in a local murder case.  The prosecutors had played the normal hide-and-seek with witness statements and police reports, but the trial judge ordered them to turn everything over to the defense.  The result?  When confronted with the overwhelming evidence against her, the defendant, who'd up to that time insisted she was innocent, agreed to plead guilty.  That saved everybody about two weeks of trial time, and the taxpayers about the 50 large that a trial would have cost. 

So what's the latest?  Comment time for the proposal ended on October 27.  I don't know about anyone else, but one person did submit a comment:  Cuyahoga County prosecutor Bill Mason sent in a two-page letter, making three basic points.

First was that he was already doing this:  under the Pilot Project, a program instituted by Mason's office about a year ago, all the information on a case is entered into a database, and the defense attorney has access to that.  This sounds good, until you realize that it's only for 4th and 5th degree felonies, and Mason's letter doesn't evince much hope that this will be extended to upper-level crimes.  In the vast majority of lower-degree felonies, discovery is pretty much irrelevant.  Knowing how a witness in a murder case is going to testify is a lot more significant than knowing how a minor drug deal went down.  Besides, there's not much to "discover"; police rarely expend the effort to do detailed investigations and get witness statements in such cases.  I did get a copy of the police report in a recent crackpipe case, and the narrative portion read, in toto, "Above male was arrested for VSDL and conveyed to CPU by 411L."  That's a help.

Mason also criticizes the proposal for several deviations from the criminal rules.  First, he notes that under the current rule, the defendant has a reciprocal duty to provide discovery when he requests it from the state, while under the proposed rule, the duty is only triggered by the defense's "acceptance" of the prosecution's discovery packet.  Frankly, the significance of this distinction is lost on me. 

Mason also complains that the proposal provides that material which is not provided seven days prior to trial cannot be used by either side unless "good cause" is shown; this, Mason contends, runs contrary to the Supreme Court's decision in State v. Papadelis, which held that trial judges "must impose the least severe sanction that is consistent with the purpose of the rules of discovery."  Again, I don't see this as a problem; the court can always tailor a remedy -- granting a short continuance to allow the defense (or prosecution) to interview a witness -- as part of the "good cause" hearing, if it finds that the violation wasn't intentional.  Mason also suggests that "financial sanctions" should be imposed for discovery violations.  To call that suggestion silly would be to flatter it.  Had that been the rule in the past, it could have resulted in Carmen Marino -- whose name was on an annual award which, until recently, Bill Mason gave to the prosecutor he believed best "set the standard for what law enforcement should be" -- being rendered destitute.

Mason's chief argument, however, remains that open discovery could jeopardize witnesses and victims, and in this letter he's more forthright in challenging the court's ability to enact a rule contrary to what the state rules provide than he was in his previous letter, which I recounted here.

Mason had requested a meeting with the judges this past Monday, but was turned down on the basis that nobody else had been granted a private meeting on the proposal.  There will be a meeting on November 10, but Mason won't be alone; Bob Tobik of the Public Defender's Office and Mark Stanton of the Cuyahoga Criminal Defense Lawyers Assocation will also be there.

It'll be interesting to see how far Mason is willing to ride the "I'm just protecting witnesses" horse.  His protestations on that score might be stifled if the next time he and Regina Brett have a sitdown on this subject, she asks him a simple question:

"Mr. Mason, the state criminal rules currently allow you to ask a court for permission to refuse to disclose the name or address of a witness if you believe that doing so would endanger the witness.  Can you tell me, in your nine years as County Prosecutor, how many times your office has used that provision?"

I'd put the over/under in the middle double digits, if that.  There have been about 145,000 criminal cases in Cuyahoga County in that time.  You do the math.

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