Cuyahoga judges approve open discovery: new rule takes effect in 90 days

Posted by Leila Atassi/Plain Dealer Reporter November 12, 2008 17:03PM

Categories: Breaking News, Crime, Real Time News UPDATED at 9:50 p.m.

What is open discovery?

Open discovery requires prosecutors to share evidence with defense lawyers before a defendant goes on trial. In Cuyahoga County, prosecutors will have to provide police reports, statements of defendants and witnesses, names and addresses of witnesses, lab and hospital reports and criminal records of defendants and witnesses. The information will have to be turned over within a week of the initial pretrial hearing.

CLEVELAND -- For the first time in Cuyahoga County history, prosecutors will be required to share witness statements, police reports and other evidence with defense lawyers, a practice known as open discovery.

Judges voted overwhelmingly Wednesday to adopt a controversial amendment to the rules governing criminal prosecution. The amendment grants access to information previously denied to defense lawyers in the name of public safety.

The changes first were approved in September, but judges accepted public comment for 45 days before taking an official vote. The rule takes effect in 90 days. It will be applicable only to cases indicted after that date, said Common Pleas Judge Stuart Friedman, who served on the ad hoc committee that drafted the measure.

In the past year, the open discovery issue has been the subject of heated debate at the courthouse -- and a cause championed by Plain Dealer columnist Regina Brett, who has devoted nearly two dozen columns to the topic. Brett encouraged readers to pressure judges into adopting the rule change and criticized Cuyahoga County Prosecutor Bill Mason for initially opposing it.

Mason, who did not return a call seeking comment on the judges' action, said he has become an advocate for open discovery, working with other prosecutors on a statewide plan for it.

Until now, prosecutors were required only to turn over evidence they felt might help the defendant, arguing that withholding some information helped protect witnesses and victims of crime from retaliation.

But judges say the practice overloaded the system and was unfair to defendants who should know the evidence against them.

A new trial for a death row inmate was ordered earlier this year after an appeals court ruled prosecutors hid evidence. In another murder case, a judge ordered prosecutors to turn over their entire case files because she did not believe they disclosed evidence as they were required. Lawyers for the defendant discovered upon reviewing the material that the state had more evidence against their client than they had expected. The defendant pleaded guilty to murder last month, and she was sentenced to 17 years to life in prison.

The new rule also sets deadlines for prosecutors to turn over evidence. Within one week after the initial pretrial hearing, prosecutors must deliver to defense lawyers a discovery packet, which includes: All police reports, statements of defendants and witnesses, names and addresses of witnesses, lab and hospital reports and criminal records of defendants and witnesses.

Defense lawyers who receive the packets must reciprocate by turning over discovery as well. And the exchange must be completed no later than a week before the start of trial. Any attorney who violates the deadline will be subject to sanctions set by the judge hearing the case.

Under the new guidelines, prosecutors can exclude specific information that could jeopardize the safety of a victim or a witness. Defense lawyers can object to the redaction, leaving the matter for the judge to decide.

Ian Friedman, president of the Ohio Association of Criminal Defense Lawyers, said he and his colleagues are also concerned about the safety of witnesses and victims. But the argument that open discovery could put them at risk is "merely speculative fear tactics," he said.