As most of my regular readers know, we’ve been having a pitched battle up here in Cuyahoga County over open discovery in criminal cases.  I have not been a dispassionate observer; I have regularly pilloried Cuyahoga County Prosecutor Bill Mason for his opposition to it.  Type “open discovery” in the search bar up on the right and you’ll find half a dozen or more posts in which I’ve accused him of obstructionism and derided him for claiming that his opposition stems from concern for retaliation against victims and witnesses.  Typical is this post, in which I engaged in a lengthy exchange in the comments section with an anonymous prosecutor, virtually ridiculing him for his belief that Mason’s opposition stemmed from anything other than a desire to exert as much control over criminal cases as he has heretofore.

Last fall the Cuyahoga County Common Pleas judges adopted a local rule allowing open discovery in criminal cases.  I was getting all ready to pen yet another tirade over what I anticipated would be Mason’s latest legal maneuver to avoid allowing defense lawyers access to the information necessary to effectively represent their clients.

Instead, two weeks ago Bill Mason announced that his office would be implementing a procedure which could serve as a model for discovery for prosecutors around the country.

Under the procedure, all police reports are electronically transmitted to the prosecutors office.  An assistant prosecutor is assigned to the file after arraignment, and is responsible for the file until the case is disposed of; no more attending serial pretrials, finding out at each one that a new prosecutor is handling the case, and is no more aware of the facts of the case than your family pet.  The assistant prosecutor will put together a discovery packet — reports, statements, lab results, medical records, whatever — and deliver it to the prosecutor’s website.  When the defense lawyer requests discovery — which he can do either by paper motions or electronically — he will be given a code with which he can retrieve the discovery packet through the website, and download and print it.  Judges can access the case to determine when discovery was demanded, and what was delivered.  All documents will be Bate stamped, so there’ll never be a question of who got what and when.  If supplemental information is obtained, the defense lawyer will be notified of it electronically.

Mason’s office will also provide eight technicians to answer phone inquiries about the system, and will provide training on it to defense lawyers and their clerical staff.

There’s some catches, if you want to call them that.  The assistant prosecutor will assess the “threat level” for each case, in terms of potential harm to victims or witnesses, and will redact information accordingly; that’ll be flagged, of course, and then it’s up to the judge to decide whether it gets disclosed.  And Mason announced that he still intends to legally contest the local rule.

But Bill Mason could have been dragged kicking and screaming into the open discovery era, fighting it all the way.  Instead, he employed a great deal of thoughtfulness and creativity in coming up with a system that is light years ahead of what just about anyone else is doing, and holds the promise of bringing both speed and efficiency to the criminal justice system, something most jaded practitioners and judges had concluded was unattainable.

And that is to his great credit.