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Open discovery and non-disclosure

On Tuesday, in State v. McKelton, the Supreme Court rejected the defendant's claim that his counsel provided ineffective assistance during plea negotiations.  According to McKelton, he spurned counsel's advice to take a plea bargain because they didn't talk to him enough or do a good enough job investigating the case.  The court points out that McKelton told the judge at a pretrial hearing that he had rejected the plea offer because he wanted a chance "to prove my innocence."

That didn't work out so well.  McKelton was convicted of killing two people and sentenced to death.  The court affirmed.

There are a wealth of issues in McKelton, and I might talk about some of them later on, but in this post I'm going to concentrate on the first one discussed by the court:  how the new rules of discovery impact the disclosure of names of witnesses prior to trial.

"Open discovery" went into effect with the adoption of new Crim.R. 16 in 2010.  It's not quite as "open" as it sounds.  A prosecutor can designate materials as "counsel only," which means you can't give your client copies, but can read it to him.

But the meatier part comes in 16(D), which allows the prosecutor to withhold certain materials by filing a "certificate of nondisclosure."  The statement of a child victim of a sex offense is automatically non-disclosable, except in certain limited situations discussed in 16(E).  Otherwise, the prosecutor has to show "reasonable, articulable grounds" to believe that disclosure will compromise an ongoing investigation, or result in the witness, victim, or third party being subject to intimidation or coercion, or "a substantial risk of serious economic harm."  And there's the obligatory catch-all - when the interests of justice require non-disclosure.

So what happens if the prosecutor certifies non-disclosure, or defense counsel wants to contest the "counsel-only" designation?  The court conducts a hearing seven days before trial, and reviews the non-disclosure or designation for "abuse of discretion."  If an abuse is found, the materials are turned over, although the prosecutor has the right to file an interlocutory appeal.  If no abuse of discretion is found, the materials don't have to be provided until the commencement of the trial.

In McKelton, the prosecutor withheld the names of eight witnesses.  The trial court found no abuse of discretion in that, and the Supreme Court agreed.  It's hard to quibble with that result:  McKelton had previously been convicted of intimidation of a witness, there was evidence that he'd made threats to witnesses here, and the icing on the cake was the fact that one of the two people he killed was somebody who'd helped him dispose of the body of the first one, and the State's theory was that he'd killed the second one to prevent him from ratting McKelton out.

McKelton is one of the few cases to come out on Rule 16 since its adoption, and it's not very helpful; it's too fact-specific to have broad application.

The reliance on the facts could make it helpful, though, because there are certain prosecutors, especially one in Southern Ohio, who make it a practice to withhold the names of witnesses in every single murder case.  The rule, and McKelton, clearly countenance an individualized consideration of the factors favoring non-disclosure.  A general assertion that "this is a murder case, and therefore we can presume that witnesses will be intimidated" doesn't cut it.

Successfully arguing that on appeal is another story.  While the rule gives the prosecutor the right of appeal if the judge finds that the evidence should be disclosed, it doesn't give the defendant the same right if the judge finds the evidence shouldn't be disclosed.  You've got to wait until after the trial to appeal.

Good luck with that.  First, it's a difficult standard to meet, if you rely on the rule.  Normally, you're in trouble if your standard of review is abuse of discretion, and here you've got a double case of that:  you're arguing that the trial judge abused her discretion in finding that the prosecutor didn't abuse his.  Second, if you go outside the rule, and also argue a constitutional claim (as McKelton did), you're dead:  the courts have consistently held that you have no constitutional right to discovery in a criminal case, and the prosecutor doesn't have to give you squat.

The biggest problem is that even if you show an abuse of discretion, you've still got to demonstrate prejudice, and how do you do that?  A court is very likely, as did the court in McKelton, to hold that you did get a chance to talk to the witnesses when you cross-examined them at trial.  Proving that if you'd gotten the name of the witness in advance and had an opportunity to investigate, you would have found something to discredit him, is pretty hard when you didn't get his name in advance and didn't get to investigate.  Although the advantage of being able to investigate a witness before trial is self-evidence as a general matter, you've got to show specifics, and it's almost impossible in this context.

A prosecutor routinely filing certificates of non-disclosure, regardless of the facts, is obviously an abuse of discretion.  Proving it, especially in the appellate process, is another story.


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