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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