Never mind
Back on October 1, the Plain Dealer’s Regina Brett opened a column with these two paragraphs:
Cuyahoga County Prosecutor Bill Mason could end up opening the door to open discovery in Ohio.
I met with him on Monday for nearly an hour and a half on the ninth floor of the Justice Center. The most important thing he said was: “I am not against open discovery.”
That was then. Apparently, something occurred to change his mind, like perhaps the fact that it was actually going to happen. The judges voted it in last week, and yesterday’s fishwrap came emblazoned with a front-page article entitled “Prosecutor Bill Mason rejects open discovery rule.”
This wasn’t a surprise, given what happened in his meeting with the judges last Wednesday, which I chronicled here. What is surprising is that Mason’s latest position gives slighting mention to what has been up to now his predominant reason for urging caution on open discovery: the possibility of threats to witnesses or victims. A smart strategy here would be to take a case where there was good potential for intimidation, and use that as a vehicle for attacking the new rule. Making a broadscale attack on the rule just makes it look like his office is trying to hide something.
Which doesn’t play well politically. There was a meeting yesterday between the OACDL and the Ohio Prosecutor’s Association, with the item on the agenda being the defense bar’s proposed amendment to the discovery rules, which you can read here. The Court rejected this rule just two years ago, but even some people with the OPA acknowledge that the climate’s changed, what with the spate of reversals by the 6th Circuit and even Ohio courts because of failure to disclose exculpatory evidence. Something needs to be done to protect witnesses and victims, but if you look at the evolution of criminal discovery rules, you’ll find a steady expansion which is gaining speed. It’s going to happen, and giving a Dick Cheney response to it instead of a measured one means that it’s going to happen that much sooner.
November 20th, 2008 at 8:43 am
I think the other thing that happened to change Mason’s mind is the fact that election season is over.
November 20th, 2008 at 9:17 pm
Mr. Bensing,
Why can’t you write this, Prosecutor Bill Mason rejects the rule that the defense bar is trying to shove down his throat but is not against the concept of open discovery.
Don’t be disingenuous. Why don’t you tell your readers that for several months in the pilot program that defense attorneys have had the opportunity to view police reports and witness statements on a computer screen on the 12th floor. This was happening before this rule was brought up. Wouldn’t this indicate to you that Mason was not opposed to open discovery?
November 21st, 2008 at 7:03 am
But I did tell my readers that. In my post of November 13 (“Discovery Wars”), I explained the discovery procedure for the Pilot Project in detail. I don’t find it remotely satisfactory: it’s only for 4th and 5th degree felonies, and while you can access the material on a computer terminal, you can’t print it out, and no copies are provided. What do you think Mason would say if his prosecutors were required to try cases under the same setup?
Either you have open discovery or you don’t. If you give defense attorneys limited access to information in a limited set of cases, that’s not open discovery.
November 21st, 2008 at 8:35 am
So which member of the Mason Youth is Straight Talk?
November 21st, 2008 at 3:56 pm
This is very easy. Ask around a little. Don’t take sides. Just ask around.
I can tell you that three days ago I walked in to the Lorain County Justice Center (rape case, second pre-trial) with a blank CD and received copies of all the witness statements. I dropped off a DVD for the alleged victim’s statement. I was provided with the sheriff’s office notes and the field office notes.
That is open discovery.
Due process of law is not that hard to define.
November 21st, 2008 at 11:52 pm
Thanks for the information Mr. Sackett. Is this as a result of a local Lorain County rule or just the practice of the Prosecutor’s Office in Lorain County?
In Summit County my understanding is that attorneys see the file but are not permitted to actually make copies. Is that correct? Is there a local rule in Summit County, or Lake County that requires the Prosecutors Office turn over witness statements and police reports?
What about in the Northern District of Ohio Federal Court? Are the witness statements and FBI/DEA or other police agency reports turned over?
Thanks, I look forward to a intelligent discussion.
November 22nd, 2008 at 9:59 am
Lorain County doesn’t have a local rule on the issue. Most courts don’t need a rule. The theme of Due Process and Equal Protection is all that is needed. Civil Cases have an amazing discovery platform….everything from depositions to document production. Criminal cases, whee the burden of proof is higher, allow for dissimilar rules on discovery. Thus, the clear failure of the Cuyahoga County prosecutor to act within constitutional lines.
Each and every Defendant in Cuyahoga County has a right to every bit of evidence alleged to ready for use against them. Why is that so hard for them to understand this concept.
Russ, you are there every day. Tell us why.
PAS.
November 22nd, 2008 at 2:27 pm
Straight Talk, Pete brings up a good question. The discovery policies of the counties surrounding Cuyahoga, whether by rule or prosecutor’s decision, is far more expansive than ours. Why is that? Don’t tell me that it’s because of fear of witness or victim safety; they haven’t had any problems in Lorain, Summit, or Lake, or anyplace else where open discovery has been tried. The rules require you (I’m assuming you’re a prosecutor) to turn over names and addresses of witnesses, except where you certify there’s a danger, which you almost never do; what would be the additional potential harm in giving witness names or police reports?
So why doesn’t Mason want to do it?
November 22nd, 2008 at 9:14 pm
Mr. Bensing,
Since you brought up “the rules” (which is Criminal Rule 16) lets talk about them.
Criminal Rule 16(B)(2) specifically excludes police reports and witness statements as discoverable before trial. These rules were enacted by the Ohio Supreme Court under authority of the Ohio Constitution. No local rule enacted can be in conflict with the rules as set forth by the Ohio Supreme Court.
I ask you, if we are a nation of laws and not of men, why do the Judges want to enact rules that run contrary to the rule of law?
Its not like these rules have not received recent review. In 2006 the Ohio Supreme Court specifically examined Criminal Rule 16 and did nothing.
Wouldn’t the best path here be to petition the Ohio Supreme Court to legitimately change the rules and not this ad hoc method?
If petitioning the Ohio Supreme Court doesn’t work, then move to amend the Ohio Constitution. In a democracy decisions are made after all sides are heard and in a process contemplated by the laws that we all live under, not by 23 Judges elected without the authority that they are seeking to exercise.
The “ends justifying the means” is a very dangerous concept that the guardians of the rule of law can not let allow to prevail.
It would seem to me that Mr. Mason is following the law and the Judges are not.
If you choose to respond perhaps you can respond on point and not rehash the old “every one else does open discovery” (Not true- see Federal system for an example) and “there have not been any problems with witness saftey” (how many cases have been dismissed because of failure of a witness to appear?).
Thank you.
November 23rd, 2008 at 11:07 am
Let’s not insult everybody’s intelligence by pretending that Mason’s opposition to open discovery has anything to do with “upholding the rule of law.” There are a number of prosecutors in Ohio who allow open discovery; are you suggesting they’re outlaws? In fact, Mason’s opposition isn’t to the method (using local rules), but to the concept: he opposes the open discovery rule that the Ohio Supreme Court is presently considering. If he simply wants to make sure that the local court doesn’t violate the law by doing something that the current state rules forbid, why wouldn’t he support amending the state rules to allow it?
So before you chide me for not responding “on point,” perhaps you could favor us with an answer to my question: Why is Mason opposed? Yes, there have been cases dismissed because witnesses failed to appear, but those have almost uniformly been domestic violence or domestic-related cases; in many, the witness didn’t want to appear, and in none was it a case where the defendant wouldn’t have been able to determine who the witness was, open discovery or no. Many of my clients aren’t too bright, but all of them are bright enough to figure out that if they’re being charged with beating up their wife, the wife is going to be a witness. They don’t need me, or a discovery response, to do that.
Besides, Mason’s fig-leaf protest that he is simply concerned about witness safety was belied by Regina Brett’s latest column, in which we learn that in the collective experience of the 34 Common Pleas judges, the prosecutor’s office has sought to conceal the identity of a witness for the witness’ protection exactly ten times.
So it’s not witness safety; the rules — both current and the proposed local rule — allow the prosecutor to do that already. It’s not because your office is simply opposed to the local rule; you’re opposed to amending the state rule to prohibit open discovery as well. Why is that?
November 23rd, 2008 at 3:21 pm
Mr. Bensing,
I asked you a specific question as to the propriety of enacting a rule that is in direct conflict with the Ohio Supreme Court and the Ohio Constitution. I think its a very interesting legal point and am interested in your legal analysis.
Since you seem to have been invited to the Judges’ meetings (are they open to the public?) did the Judges themselves recognize that their actions were unconstitutional? Was there any legal research done?
(Note that I didn’t ask about how nice open discovery is or isn’t.)
I’ll invite you once again to stay on point if you choose to respond.
Thank you.
November 23rd, 2008 at 10:14 pm
I’ve already given my analysis of the legal situation here, on numerous occasions: a local rule can’t contradict a state rule. That doesn’t make the local rule “unconstitutional,” under either the Ohio or the US Constitution. I was not invited to the judges’ meeting, so will give no opinion as to what the judges as a whole believed. I am familiar with the beliefs of a number of judges, who uniformly agree that open discovery is a fairer and far more expeditious manner of handling criminal cases.
In your first comment in this thread, you claimed that Bill Mason isn’t opposed to open discovery. That is unquestionably untrue; he has steadfastly opposed the local rule. You suggest that “the best path here [would] be to petition the Ohio Supreme Court to legitimately change the rules,” while Mason’s office steadfastly opposes such a change. You claim that open discovery would jeopardize witnesses, a contention even former prosecutors who are now judges acknowledge is completely spurious. You have claimed that I have avoided answering your questions, when in fact I have answered them numerous times, not only here but in previous posts.
I have asked you repeatedly one simple question: why is Mason opposed to open discovery? You have repeatedly refused to answer it. When you do, I believe we’ll have more to talk about.
November 24th, 2008 at 12:32 am
Mr. Bensing,
Thanks. If its not unconstitutional then what is it? Rogue?
If the constitution confers the power on the Ohio Supreme Court to set the rules and the Ohio Supreme Court has been very clear about the disclosure status of police reports and statements in Crim R. 16 then how does a common pleas court directly contradict that specific rule? My mistake about your attendance at the Judges’ meetings. Your posts seem to indicate a rather intricate knowledge of the Judge’s closed meetings.
We have come full circle however to my first post. My point was simply you should give Mason some credit for incorporating access to police reports and witness statements in the pilot program which was going on before the local rule was proposed. You just don’t “find it remotely satisfactory”. Even your earlier post acknowledges that Mason was not opposed to open discovery:
“As an alternative, [Mason] 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 . . .” Nov. 13, 2008 Bensing
So instead of passing an unconstitutional or illegal local rule Mason suggested using the procedure that he had been using before the rule was even proposed. I don’t know how you read that as if it will continue to apply only to 4th and 5th degree felonies.
Hence my words that you were being disingenuous. Read the quote from Regina Brett that starts out this entry and your quote. You have answered your own question. Mason is not opposed to the concept of open discovery, it seems that he is opposed to manner and the means of the judges are going about it.
Now you may argue that the term “open discovery” only applies to having the ability to print the report or statement that you have complete access to. (Huh?) It seems more like a convenience to the defense bar rather than being a constitutional requirement. Having access to the reports and statements via a computer screen is not even REMOTELY satisfying?
Thank you.
November 24th, 2008 at 7:03 am
You tell me that I “acknowledge that Mason was not opposed to open discovery,” quote me as to what Mason provided in the Pilot Project, then leave out the part where I said this wasn’t remotely satisfactory, and I’M the one who’s being disingenuous?
Listen. Mason is opposed to open discovery, in any meaningful sense of the term. He opposes its adoption by local rule, he opposes its adoption by state rule, by constitutional amendment, or by Papal decree. He opposes it. Period. His alleged justification for this — that it’s necessary to protect witnesses — has been exposed as a complete fraud. He opposes it for one simple reason: it gives his prosecutors an advantage in trial.
If you want to continue pretending that’s not the case, that’s certainly your right and privilege, but I don’t think it gives you much room for calling other people disingenuous.
You’re welcome.
November 24th, 2008 at 8:21 am
Mr. Bensing,
Please take the time to read my last post where I actually quote you as saying “you don’t find it remotely satisfactory”
In fact your line becomes the theme of my post and illustrates how extreme your position is regarding discovery.
Once again thank you for the opportunity to have a discussion.
November 24th, 2008 at 11:43 am
Your arguments have been procedural up to now; you tell us that Mason simply opposes having the local rule adopted. His opposition goes far beyond that, though, and when I pointed that out, you now switch to addressing the substantive merits of the proposal, contenting yourself with the claim that my position on open discovery is “extreme.” What’s extreme about it? The ABA supports open discovery, states like Florida and North Carolina practice it (in Florida, you’re even allowed to take depositions), and it’s a routine practice in numerous Ohio counties, including the ones contiguous to Cuyahoga. Despite the Federal rules’ strict provisions on discovery, most federal prosecutors give you full discovery. I recently did an appeal of a federal case, and the first thing the trial attorneys gave me was two bankers boxes of FBI 302’s, the report agents make of their investigation.
If you’re going to argue the substantive merits of a discovery proposal, don’t you have to address the question I’ve been asking you all along: why is Mason opposed to it? Why does he feel that something substantially less than what the defense bar, the judges, the ABA, and a bunch of other groups recommend, and that many prosecutors practice, is appropriate?
November 24th, 2008 at 12:10 pm
Does this mean Mason will be targeting in future elections all those judges who voted for the open discovery rule?
November 24th, 2008 at 12:52 pm
That’d be a tall order. My understanding is that 26 judges voted for it, with 2 abstaining and one voting no.
November 24th, 2008 at 7:21 pm
Mr. Bensing,
With such an illustrious group of backers there should be no problem getting open discovery through a constitutionally sound method.
Get busy doing it correctly. Petition the Ohio Supreme Court. Let all that have a stake in the criminal justice system have an opportunity to comment and then we will have a uniform system throughout the state.
Good luck.
November 24th, 2008 at 9:49 pm
This has been a pretty good discussion. I, as a reminder, don’t practice criminal law. But I do follow the Ohio Supremes as a sort of hobby. My two cents:
Mr. Bensing writes: “I’ve already given my analysis of the legal situation here, on numerous occasions: a local rule can’t contradict a state rule. That doesn’t make the local rule ‘unconstitutional,’ under either the Ohio or the US Constitution.”
I’m not sure this is correct. According to Section 5(B), Article 4 of the Ohio Constitution, “Courts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the rules promulgated by the supreme court.” Any rule that is inconsistent, therefore, is unconstitutional. Whether a proposed open-discovery rule would in fact be “inconsistent” is another matter. And I leave that to more capable lawyers than myself.
That said, Mr. Bensing is, I think, substantively correct. The real question, Mr. Straight Talk, is why does Mason continue to object to open discovery? It appears he would oppose the idea — as Mr. Bensing notes — whether it came about via local rule of constitutional amendment. But why? Persuade me, I’m begging you.
Surely you must admit, Mr. Straight Talk, that without any true justification for limited discovery, your comment about not letting the “ends justify[] the means” is, uh, pretty ironic.
November 25th, 2008 at 12:07 am
Mr. Hutz,
I actually find it more ironic that Mason, who is following the rules, is being demonized, while the Judges who have blatenly disregarded the rule of law are being hailed.
Mr. Bensing is insistent on linking Mason’s objection to this illegal rule with being opposed to open discovery. Being against this rule does not necessarily mean that one is against expanded discovery. To wit, I had to point out Mr. Bensing’s own words in which he acknowledged that Mason was providing open discovery in the pilot program for several months before the rule was even proposed.
Bottom line. Through the pilot program IN ADDITION TO: written copies of all lab reports, copies of defendant and codefendant written statements; written summary of defendants and codefendant’s oral statements; a list of witness’s names and addresses; an opportunity to view physical evidence; photos of evidence; written disclosure of exculpatory evidence;
YOU ALSO get an opportunity to read the police report and witness statements via computer screen.
Mr. Bensing finds this “not even remotely satisfactory”. Really, not even remotely?
By the way all this information I got just from reading Mr. Bensing’s blog.
November 25th, 2008 at 8:49 am
Two final (?) points. First, you continually maintain that this is about “upholding the rule of law.” That exalts form over substance. There are hundreds of prosecutors in Ohio which routinely provide open discovery. They don’t see themselves as lawbreakers. Mason’s opposition to the local rule isn’t based on a desire to obey the law, it’s based on his opposition to open discovery.
Which brings me to the second point, the extremely limited “open” discovery provided in the Pilot Program. Let’s forget about whether it’s satisfactory or not. Why wouldn’t Mason extend it to all cases? If he truly isn’t opposed to open discovery, why doesn’t he do that? Both the proposed rule and the state rule allow ample mechanisms to protect witnesses or victims, so what’ the reason for not providing full discovery in all cases?
You really can’t answer that question, can you?
November 26th, 2008 at 1:39 am
Mr. Bensing,
Please see posts number 13 and 21 for the answer to your question. A pilot program is typically a blueprint for how the system will operate in the future. You yourself acknowledged that Mason suggested using the pilot program discovery procedure (see post 21 for what that would look like) in lieu of the proposed local rule.
Why would you read that as Mason not willing to extend it to all cases?
Again thank you for allowing me to comment. I think that we have come to a point where this subject has been exhausted and where we can agree to disagree.