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More than a decade ago, talk of changing how much evidence county prosecutors are required to give to defense attorneys in criminal cases generated controversy and debate.

Prosecutors say that revealing some types of evidence — such as police reports and witness statements — could put potential witnesses at risk. Defense attorneys say that by not handing over this type of evidence, prosecutors might intentionally or mistakenly withhold information that could set an innocent person free.

The debate rages on.

The disclosure of evidence, known as discovery, continues to be discussed in Ohio’s courtrooms, law libraries, and within the halls of the state Supreme Court. It is an agenda item for the high court’s Commission on the Rules of Practice & Procedure, on which several local attorneys and judges sit. And it is the topic of meetings between the Ohio Prosecuting Attorneys Association and the Ohio Association of Criminal Defense Attorneys.

While the two associations plan to meet again Feb. 12, there appears to be little hope they ever will fully agree.

“I don’t believe we made a single inch of progress toward a resolution, and I don’t think we will,” said Columbus-based attorney Barry Wilford, a past president of the Ohio Association of Criminal Defense Attorneys and one of the representatives meeting next month.

“The whole struggle here is to wrestle from the prosecutors their discretion as to what they disclose in a particular case,” he said. “They say they have legitimate reasons not to disclose the information. We say, ‘Show us the goods.’”

Rule 16 in Ohio’s criminal code governs what evidence must be shared between attorneys in a criminal case.
Currently, that rule allows prosecuting attorneys to withhold certain police reports and witness statements.

Those who agree with the rule say the exceptions help protect those who witnessed crimes by keeping some of what they know from the people they are accusing.

Those who desire “open-file discovery” call these concerns a sham, saying that prosecutors have ways of protecting witnesses and don’t need an all-inclusive rule.

Both sides want a compromise, but neither is willing to give up its stance.

“It’s one thing to list a person in a case; it’s another thing to know exactly what the person told police,” said John Murphy, executive director of the Ohio Prosecuting Attorney’s Association, about concerns for witness safety.

“Basically they want everything,” he said of the criminal defense association. “We’re not going to agree to that.”

‘A real problem’
In Lucas County, assistant prosecutors responding to requests for criminal discovery include a form letter within every packet, said Dean Mandros, chief of the office’s criminal division. The five-page letter includes a checklist of all items that are required to be given to the defense and ensures that “every defendant is treated the same,” he said.

It also extends the offer for defense attorneys to come to the prosecutor’s courthouse office to “review contents of this case file.” This allows defense attorneys to examine some evidence that is not required to be handed over, Mr. Mandros said.

Although the file can be examined, it is not copied “wholesale,” he added.

“It’s not that we are keeping the information from defense counsel; we’re trying to disseminate it in a fashion that will reduce the possibility for it to be used to prevent witnesses from coming to court,” Mr. Mandros said, adding that over the years, it has become increasingly difficult to persuade witnesses to testify in court.

“I can tell you it has a very chilling effect if a defendant or someone anonymously contacts the witness and tries to get them not to come to court,” he said. “Witness intimidation is a real problem in prosecution.”

Often, in high-profile cases such as the one involving convicted murderer Gerald Robinson — a Toledo priest convicted in the death of Sister Margaret Ann Pahl — the prosecutor’s office will adopt an open-file policy, Mr. Mandros said. In those cases, copies of every document and an inventory of evidence would be included.

“It is very labor and time-intensive and we handle over 3,000 cases a year, so we can’t prepare every case in that detail,” he said.

Toledo defense attorney Jerry Phillips said that open-file discovery often leads to attorneys on both sides to the plea bargaining table.

If defense attorneys know the weight of the evidence against their clients, it likely would prompt a plea. Conversely, if they know that the case is weak, they have the ability to discuss lower charges or a dismissal.

“My opinion is that the more information each side has, the more opportunity there is to resolve the case,” he said. “If it’s bad for me, I’ll try to resolve it.”

Opposing views
Like most defense attorneys, Mr. Phillips called concerns for witness safety, “much ado about nothing” because there are means to keep identities and statements concealed. In particular, prosecutors can ask judges to grant protective orders, which would keep witnesses’ names and statements from the defense until just prior to trial.

“That’s just a smokescreen,” he said. “They have to give us the names anyway, so if we know who’s testifying we’ll likely know what they have to say.”

Prosecutor Julia Bates said she has only to point to the recent ban on cell phones within the courthouse to prove that witness intimidation is real. The common pleas judges barred most people from bringing cell phones into the building after they were being used to record witnesses in a murder trial. Those pictures were then posted on the Internet.

Mrs. Bates said that urban counties such as Lucas face different concerns than most of Ohio’s 88 counties. In particular, gangs often attempt to sway trials by threatening witnesses.

And she dismissed the argument that without open-file discovery, innocent people would be convicted.

“If we were winning at all costs, then there wouldn’t be pleas, there wouldn’t be cases [dismissed], and we wouldn’t be declining to indict cases because we didn’t believe they were strong,” she said.

Mr. Phillips said Lucas County defense attorneys often do not experience the same problems with discovery issues that occur in other counties. But sometimes, the extent of how much discovery is exchanged can depend on the attorneys involved, he said.

He noted that in Cuyahoga County, matters of withheld evidence became such a concern to the common pleas judges that they enacted their own local rule. The county’s Local Rule 23.1 requires that all discovery packets include “all police reports” and “all statements of defendant, co-defendant, and witnesses,” although the police reports and witness statements “shall not be used for cross-examination of any witness unless qualified under Rule 16.”

Jeffery Gamso, legal director for the American Civil Liberties Union in Ohio, said that he believes that rule ultimately will be challenged and left up to the Ohio Supreme Court to decide.

Revisiting the issue
The Supreme Court’s Commission on the Rules of Practice & Procedure is a 23-member committee made up of legal practitioners and judges. Open-file discovery is on its agenda.

The Supreme Court first proposed and filed with the General Assembly amendments to Rule 16 back in 1996, said Jo Ellen Cline, government relations counsel for the Supreme Court. Those rules were withdrawn because it appeared as though they were going to be voted down, she said.

Again, in 2006, the high court’s rules and procedures commission proposed amendments to the rule that would open up discovery.

After opening the proposal to public comment, the proposal eventually died without ever being filed with the General Assembly, she said.

To amend Rule 16, the court has to make the recommendation to the legislature. Both houses would have to vote it down for the proposal not to pass.

According to the nonprofit organization, The Justice Project, states such as Arizona, New Jersey, North Carolina, and Florida have created successful open-file discovery rules. Other states, including Michigan, have discovery rules modeled after the American Bar Association standards.

The bar association standards for criminal discovery include, among other things, written and oral statements made by the defendant and codefendant and witnesses, police reports, tangible objects, expert opinions, and information collected by third-party investigatory agencies such as law enforcement or forensic laboratories.

Daniel Steinbeck, associate dean for Academic Affairs for the University of Toledo College of Law, is a member of the rules and procedure commission and was disappointed when the court decided not to pursue the proposed amendment nearly three years ago.

He said the commission hopes that the opposing groups will create a compromise but understand that the issue may likely come back to them.

Ms. Cline said Chief Justice Thomas Moyer has initiated the process again, including asking that members of prosecuting attorneys and criminal defense associations meet. The groups have met twice so far.

“[Justice Moyer] is very interested in seeing this court doing something on open discovery through the rules, but he wants something that is successful and that won’t cause more problems than it solves,” she said. “The train is on the track and is coming. It’s a matter of getting it there safely.”

Contact Erica Blake at:eblake@theblade.comor 419-213-2134.

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