I’ve blogged before about the new proposal on discovery from the Cuyahoga County Common Pleas judges.  I highlighted the proposal in this post back in September; basically, it would require the prosecutor to turn over witness statements and police reports, which Head Honcho Bill Mason’s office has jealously guarded over the years.  (A copy of the proposal can be found here.)  Mason floated his counterproposal in an interview the Plain Dealer’s Regina Brett, which I discussed here, and responded to the judges’ proposal in a letter which I discussed here.  His formal comment to the rule is detailed here. 

That last post mentioned the upcoming meeting with all the major players:  Administrative Judge Nancy O’Donnell, eight other judges, and Mason (and a few people from his staff), Cuyahoga County Public Defender head Dave Tobik, CCDLA President Mark Stanton, and OACDL President Ian Friedman.  That took place on Monday. 

Not surprisingly, most of the meeting was spent with Mason attempting to dissuade the judges from adopting the local discovery rule.  As an alternative, he suggested utilizing the discovery procedure he’s adopted for the Pilot Project, which was started about six months ago to streamline the indictment process.  To be sure, open discovery is provided there — but only for 4th and 5th degree felonies.  What’s more, the “discovery” is available via a single computer terminal on the 12th floor of the Justice Center.  All the reports, statements, etc. on those cases are entered into a database, and attorneys are given a PIN to access it for their case.  They can’t print anything, and no copies are provided.

As I’ve mentioned before, getting witness statements and police reports for 4th and 5th degree felonies is largely irrelevant, and the prospect of shuffling over to the Justice Center to look up info on a computer terminal — info that must be committed to memory — is not the kind of thing I remember Jimmy Smits doing on LA Law; all that’s lacking is a voice saying the info will self-destruct in ten seconds.  Apparently, it didn’t impress any of the other judges, either; one of them flatly informed Mason that the proposed rule was going to pass, and the meeting ended with Mason promising that the issue would be litigated.  We’ll find out.  Yesterday afternoon the rule passed comfortably, with two judges abstaining and only one voting no.  It takes effect in ninety days.

How he’s going to do that, and on what basis, is another matter.  His office got shot down by the Supreme Court last year when it filed for a writ of prohibition to keep another judge from ordering full discovery; as I explained then, here and here, a writ of prohibition doesn’t work because there’s an adequate remedy by way of seeking leave to appeal.  Here’s the problem:  Mason’s opposition to open discovery has always been premised on a desire to protect witnesses from retaliation or intimidation.  The amended local rule arguably gives him more power to do that.  Under the state rule — 16(B)(1)(e) — if the prosecutor feels that disclosure would endanger a witness, he must ask the court to certify that he doesn’t need to do so.  Under the local rule amendment, however, the burden shifts to the defense:  the prosecutor can redact any information, and that decision can be overturned only if the judge finds “good cause” to do so. 

What’s more, given the unavailability of direct access to the Supreme Court via a special writ, Mason’s only legal recourse is to the 8th District, an appeals court that has been increasingly unfriendly ground for prosecutors.  An unsuccessful appeal to the 8th, given the paltry odds of getting Supreme Court review, might leave Mason in a worse position than he would otherwise be, since a rejection might lead common pleas judges who would otherwise give the prosecutor’s office the benefit of the doubt on redaction issues to apply the rules more in keeping with the concept of open discovery.

Defense lawyers, even public defenders offices, rarely have the option of contemplating the strategic aspect of appeals:  we can’t tell a client that we’re not going to appeal his case because we think we’re going to lose and maybe set a bad precedent by doing so.  A prosecutor’s office has the ability to pick and choose what issues it wants to fight.  We’ll soon find out if the Cuyahoga County prosecutor’s office has the strategic vision to wait and see how this plays out before picking a fight it may well lose.  There’s some hills you have to die on, and some you don’t, and a large part of being a smart lawyer is figuring out which is which.