Public records and post-conviction relief
Romell Broom was supposed to get the needle yesterday (see story below) for kidnapping, raping, and killing a 14-year-old girl in 1984. His judicial oddyssey to avoid execution over the past 25 years provides an interesting study of the quirks of death penalty law, habeas corpus, and, of all things, Ohio's public records statute, RC 149.43.
Our story starts in earnest after Broom's direct appeals were exhausted. In 1990, he filed a petition for post-conviction relief, and asked for a stay so that he could obtain records of the police investigation of the crime. Some stay: the court didn't rule on the motion for six years. Sometime in 1993 or 1994, he obtained 19 pages of records from the East Cleveland Police Department. He didn't introduce them, and that failure became the focal point of much of the subsequent litigation.
The judge eventually denied his post-conviction relief petition, and after he'd exhausted his appeals on that, Broom took his case into Federal court on habeas corpus in 1999. This time, he did include the East Cleveland PD papers, claiming that they contained exculpatory evidence, and the state's failure to turn them over to him constituted a Brady violation. That claim wouldn't have been a problem a few years earlier, but in 1996 Congress amended the habeas procedure by passing the Anti-Terrorism and Effective Death Penalty Act. As might be indicated by the name, the impetus for the Act was the desire to substantially limit habeas review. One of the requirements of the Act was that a defendant had to show that any of the claims he was presenting on habeas had been first presented, and ruled upon, by the state courts, or show good cause why the claim hadn't been presented.
Broom claimed that he did have good cause for not presenting the records in the state courts: the Supreme Court's 1994 decision in State ex rel Steckman v. Jackson. Prior to that decision, criminal defendants had been using the public records statute as an end run around the much more limited discovery they could obtain under CrimR 16. The court in Steckman put an end to that by ruling that police records other than "routine offense and incident reports" were exempt from disclosure because they were "work product," and by ruling that a defendant's right to obtain material was limited to what they got pursuant to Rule 16. And the court didn't just bar defendants with pending charges from using the statute:
a defendant in a criminal case who has exhausted the direct appeals of her or his conviction may not avail herself or himself of R.C. 149.43 to support a petition for postconviction relief.
Broom argued that he didn't submit the records to the state court, because Steckman barred him from doing so. The District Court, and the 6th Circuit, weren't buying: while Steckman barred a defendant from making a public records request, it didn't bar him from using records he'd already obtained.
So Broom went back into state court, filing another petition for post-conviction relief, and using the records to make the same Brady claim. Ohio's law on that, however, contains something similar to the "just cause" provision of the AEDPA: Broom had to show that he was "unavoidably prevented" from presenting the records before. The trial court agreed with the same argument the Federal courts had used in deciding that Steckman didn't bar Broom from introducing the records back in his earlier PCR petition.
And that's where the the 8th District came in: on July 30, they reversed, holding that Broom could have reasonably believed that Steckman prevented him from using the records. As I explained on Monday, it took the Ohio Supreme Court a mere 12 days to accept the appeal, set a briefing schedule, read the briefs, and issue a decision overturning the 8th District's decision, allowing Broom's execution to go on as scheduled. Lest the reader believe that all the courts were focused on procedure, rather than substance, the Ohio Supreme Court, as did the Federal court, actually looked at the records and concluded that they really weren't exculpatory.
The intriguing line from the Supreme Court's decision is this one:
Steckman thus holds that a postconviction litigant cannot "avail * * * himself" of the Public Records Act to obtain police reports not covered by Crim.R. 16, because such reports are not subject to release under the Act. But it does not necessarily follow that if a litigant does manage to obtain police reports, they must be excluded from the postconviction proceeding.
So how can a defendant "manage to obtain" the reports, if he can't request them? The answer is provided by one of the most curious twists in this whole saga. Steckman actually involved three separate cases. The defendant in one of them was Ronald Larkins, who was convicted of killing a pawnshop owner back in 1981. After Steckman, the court rejected his public records request. So what happened? A local bishop requested the records, got them, and turned them over to Larkins. Lo and behold, the records revealed a substantial amount of exculpatory evidence, which led to Larkins being granted a new trial in 2006, and ultimately to the dismissal of the case against him.
So, does this mean if you're representing a defendant in a post-conviction proceeding, you can get around Steckman by having your drinking buddy make the public records request? Possible, but there's some ethical questions about doing that. There might be an argument that Steckman produces the unfair result of allowing everybody in the world access to the records except for the person who needs them most. I don't see that argument going anywhere, though. As they say, fair is where your pig gets a ribbon. To focus on the legal issues instead of the broad philosophical ones, the problem is that access to public records isn't a fundamental right and criminal defendants aren't a suspect classification, which means that there only need be a rational basis for Steckman, and there almost certainly is.
Steckman may be of limited life, though. If you read the decision, the case turned largely on the fact that the criminal rules provided limited, rather than open, discovery. As we'll discuss in the coming weeks, that may be about to change.