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Let the games begin

The prosecutor delays giving you discovery, because he knows the speedy trial clock doesn't start ticking again until he does.  You get forty pages of cell phone records, and you want to give them to your client so he can go through them and figure out which are significant, but you can't, because the prosecutor has designated them as "counsel only."  The prosecutor files a certificate of nondisclosure, refusing to give you the names and addresses of any witnesses, not because he has any real concern about their safety, but because his office's policy is they don't give out that information in any case involving an offense of violence. 

Despite the exhortation in new Criminal Rule 16, which adopted "open discovery," that its purpose is "to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts," there's still some game playing that goes on.  For those of us who've practiced criminal law for a while and thus gained a more jaundiced viewpoint of the system, it's not surprising that the it would be a defendant who got called for game playing in the Supreme Court's decision last week in State v. Athon.

Athon was charged with drunk driving, and his lawyer wanted the information customarily needed to defend those cases:  videotapes, reports, records of the breathalyzer.  Instead of simply filing a discovery request, though, the lawyer took a more circuitous route:  he had another attorney submit a public records request, under Ohio's Freedom of Information Act, to the police department.  The records were provided, and when the prosecutors got wind of it, they filed a motion claiming that the public records request constituted a demand for discovery under CrimR 16, and thus triggered a reciprocal duty of disclosure on Athon's part.  The trial court ordered disclosure, but the 1st District reversed, finding that since Athons had never filed a written demand for discovery under the rule, he had no duty to provide discovery to the state.

This wasn't the first time a defendant had used a public records request to circumvent the discovery rules.  In fact, that became so commonplace that back in 1994, in State ex rel. Steckman v. Jackson, the Supreme Court held that Rule 16 was the only method by which a defendant could obtain discovery in a pending criminal case.  (Or even after the case was over; one of the defendants in the case had sought to gain access to the records to use them to seek post-conviction relief.)  That's where the "straw requestor" came in:  if the defendant couldn't request them himself, there was nothing to stop a friend -- or, in Athons' case, a friend of his lawyer's -- from making the request.

The court's opinion in Athon engages in a bit of historical revisionism regarding Steckman. According to the majority, "Steckman does not bar an accused from obtaining public records that are otherwise available to the public," a statement difficult to square with the second paragraph of the syllabus in Steckman:  "In the criminal proceeding itself, a defendant may use only Crim.R. 16 to obtain discovery."  Rule 16 is the preferred method, the Athons opinion explains, and given that "the philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial," the easy conclusion is that a request for discovery, whether through a public records request or through the rule, triggers the reciprocal duty of the defense to provide discovery.

Well, not so simple.  Kennedy, Pfeifer, and O'Neill dissent, although their argument is one of process, not result:  they would prefer the matter to be resolved through changes in the rules, rather than through case decisions.  They "encourage the Commission on the Rules of Practice and procedure to review the effects of Crim.R. 16(A) and recommend necessary changes to it after careful study, and this court should amend the rule, if necessary, after public comment."

That could happen, and probably should.  One of the chief problems with the rule is that the remedy for prosecutorial abuse is a meager one:  a defendant can contest the nondisclosure, or the use of the counsel-only designation, but that's reviewed in a hearing only seven days before trial.  To be sure, the court can continue the trial if it finds disclosure is warranted, but the decision whether to do so is reviewable only for abuse of discretion, and good luck with that; a less than scrupulous prosecutor can easily put the defense in the situation of having to conduct its real investigation of the case on the eve of trial.

Until the rule does get revised, though, we have that language from Athons about the philosophy of the rules being to eliminate "gamesmanship."  We'll probably see in the future how true that is.

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