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.