Open Discovery: The Jig's Up
Several months ago, I got a call from a producer at a local radio station. They'd seen stuff in the paper about open discovery in criminal cases, and she'd come across my blog, and she thought I might be able to explain some elementary aspects of the subject and answer some questions she had. The first of those was what the rules currently provided for discovery. I began explaining that to her, but when I got to the part about where the prosecutor had to provide the names and addresses of witnesses, she stopped me. "You mean they're already required to provide that?" she said.
"Then what's all the fuss about?"
Good question. Cuyahoga County Prosecutor Bill Mason has attempted to frame this issue from the beginning as open discovery versus protecting witnesses and victims. As I pointed out in one of my first posts on the subject, and as criminal lawyers know, the Rules of Criminal Procedure already contain a method of protecting witnesses: if a prosecutor believes disclosure of the witness' name or address poses a threat of harm, he can go to the judge (trial or administrative) and ask the judge to certify that he doesn't need to make disclosure. He even gets an ex parte hearing on the matter. But in Regina Brett's first sitdown with Mason, which she wrote about here, she allowed him to gush about how he wasn't opposed to open discovery, he just had a concern that it be done in a manner that "protects witnesses and victims," without ever calling him on that point.
That's unfair to Brett, who has been one of the most vocal and effective champions for open discovery (you can read all her columns on the subject here). Still, it was somewhat maddening to see Mason's supposed rationale for opposing it go unchallenged. Back on October 30, I wrote the following:
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 sent an email to Brett, with a link to the post. Not fifteen minutes later, I got an email back from her, thanking me warmly for my interest, and, in the second paragraph, explaining that the email was automatically generated as a response to anyone who emailed her.
Never heard anything more from her, but on Sunday, she unloaded on Mason with both barrels, in a column entitled, "Prosecutor Bill Mason's concern about protecting witness identities is a phony issue." Not a lot of room for nuance there. She pointed out that the current rules already require disclosing names and addresses of witnesses, that "the prosecutor already has the right to approach the judge and ask for any of those names to be redacted from the list." She then posed the rhetorical question, "How many times has Mason or his staff actually used that existing power?"
Except it wasn't rhetorical. In fact, she went me one better: instead of asking Mason, she asked the judges. Each and every one. In my post, I'd suggested that the over/under on the answer would be "in the middle double digits," giving further evidence that if I were in charge of the bookmaking operations in Vegas, Nevada would be the poorest state in the Union. The correct answer? Ten. The 34 judges, with over 300 collective years of experience, can between them remember exactly ten occasions when the prosecutors office asked them to redact witnesses' names or addresses. Of course, a lot of that experience was before Mason took office in 1999, so let's limit it to that period, and assume that every single request came during that time. That leaves you with ten requests -- out of 145,000 criminal cases.
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Like everybody else, I'm going to be taking a break over the next four days. I'll be back on Monday, although it's probably not going to be with a case update, given the abbreviated week. I'll find some things to write about, I'm sure. See you then.