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What's Up in the 8th

The court tackles the question of when informants have to be disclosed, what the appropriate sanctions are for failure to provide discovery, and tops off the week by turning back the 4th Amendment clock.

Art McKoy, a black activist here in Cleveland, is a figure of some notoriety.  He was one of 30 people charged with being members of a drug trafficking ring back in the 1990's, but the case against him, which was based solely on informant's tapes, fell apart when the police realized the voice on the tapes wasn't his.  He was convicted of theft in 1998 after the City inadvertently deposited $617,000 in the bank account of a the anti-crime group Black on Black, Inc.; although McKoy took none of the money, he went to prison because he was the leader of the group.  His latest brush with the law came in the form of an indictment charging him with permitting drug abuse at his barbershop, based on an informant's purchase of cocaine from another person while McKoy was allegedly present. 

Since the informant was the only person who could provide evidence against McKoy, his attorneys asked for the informant's identity.  The State indicated no problem with that in the first six pretrials on the case, but on the eve of trial filed a motion seeking to keep the informant's identity secret.  The trial court denied the State's motion, and everybody trudged across the street to the 8th District for a resolution. 

As the court notes in State v. McKoy, determination of whether the name should be disclosed depends upon

(1) whether the CI's testimony is vital to establishing an essential element of the offense charged, or (2) whether the CI's testimony is helpful or beneficial to the accused in preparing a defense . . . where disclosure is not helpful to the defense, the prosecution need not reveal the CI's identity.

Well, that's pretty much outcome-determinative here; not only was the informant's testimony "vital," it was the only evidence the State had against McKoy, other than the co-defendant, who of course couldn't be compelled to testify.  In fact, the only question here was why the State bothered.  It relied solely upon a 1995 8th District case upholding nondisclosure, but in that case the police had immediately arrested the participants in the drug transaction, and the court had specifically noted that "there was no evidence that would suggest revealing the identity of the informant would have assisted [the] defense."  So if you've got a case involving an informant, you know where to start.

The court gives provides some guidance on discovery sanctions in State v. Kaplan, although the actions of the trial judge (no longer on the bench) rather than the State provide the puzzlement there.  Kaplan was charged with numerous counts of importuning, and at trial the court excluded all of his witnesses because he had allegedly failed to disclose them.  Kaplan's attorneys had in fact sent a letter disclosing the witnesses over two months prior to trial.  The letter went to an assistant prosecuting attorney who didn't handle the trial; the defense said they'd been instructed to deal with this attorney for purposes of "negotiations," but the court sustained the prosecution's motion to squash a subpoena for that prosecutor.  The defense had also filed a supplemental discovery response a few days prior to trial, but the judge ignored this.  The appellate court seemed unsure of whether there was even a discovery violation at all, but resolved the case by holding that the judge erred in not even considering a less drastic sanction that wholesale exclusion.  So if you've got a case involving a discovery violation, you know where to look.

If you've got a search and seizure case, though, don't look at State v. White, which may cause me to revisit my touting the 8th as a 4th-Amendment friendly haven.   The facts are simple:   Police in two undercover vehicles in a high-crime area in Cleveland -- but I repeat myself -- observe four miles standing in front of a vacant, boarded-up property.  As the vehicles approached, the males started to walk away, and one tossed "an object" to the ground between two cars. Concerned with "officer safety" that the object might have been a weapon, the police got out of their cars -- oops, exited their vehicles -- and ordered the men to ground.  The discarded material turned out to be some rocks of crack cocaine, and the officers found another packet of crack by one of the defendant's legs. 

The court's upholding of the search is somewhat problematic, as we'll discuss tomorrow in more detail; a different panel might easily have come to the opposite conclusion, but them's the breaks.  What is more than problematic is the court's language, which concludes with the determination that

attempting to hide something from the police in a high drug activity area is suspicious enough to investigate further and search for weapons.

That's my emphasis, and the reason for it is simple.  As I've noted on numerous occasions, and the 8th has taken pains to state, stop and frisk are two different things:  simply because the police have the right to stop someone does not automatically mean they have the right to frisk them for weapons, despite what every single policeman in this city apparently believes.  But you can bet that in every search case in the 8th from here on out, at least those involving drugs, a prosecutor is going to wave a copy of the White decision in the judge's face and tell her that once the officer has the right to make a stop, the right to frisk goes along with that.

So if you've a search and seizure case, you know where not to look.

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