CLEVELAND – The Ohio Supreme Court is being asked to reconsider its rules on how much information prosecutors are required to turn over to defense attorneys, amid complaints that the exchange puts innocent lives in danger.
Last month, Cuyahoga County Common Pleas Judge Janet Burnside ordered county Prosecutor Bill Mason to release all police reports to attorneys in the case of Wilson Santiago, accused of killing a Cleveland police officer last year.
Santiago`s lawyers say the state`s experts will have all details and eyewitness accounts, leaving the defendant at a disadvantage. Burnside agreed, noting that other prosecutors in Ohio commonly turn over police reports, either voluntarily or at court order.
“Fundamental fairness compels the disclosure,” she wrote.
Mason then asked the Ohio Supreme Court to nullify Burnside`s discovery order and declare that trial judges have no power to make such demands.
The case has drawn support from both sides of the debate.
Advocates of the law say open discovery keeps innocent people from getting convicted. In last year`s case against Duke University lacrosse players accused of rape, defense lawyers used North Carolina`s 2-year-old “open-file discovery” law to open prosecution files and find proof that Durham District Attorney Mike Nifong pressed ahead with the case despite the players` questionable guilt.
Opponents of the law, including the Ohio Prosecuting Attorneys Association, argue that it might get innocent people killed.
They point to the 1996 case of James Reynolds and Shannon Hawks, two Columbus youths and potential eyewitnesses to a murder, who were shot and killed after a prosecutor shared files with the lawyer for the capital-murder defendant.
Open-file discovery “is an open invitation to get people hurt or killed,” said Clarke County Prosecutor Stephen Schumacher. Mason said his staff counted 430 indicted cases of retaliation or intimidation against victims and witnesses in the last two years.
The U.S. Supreme Court ruled in 1963 that defendants are entitled to all exculpatory evidence, or material that is favorable to the defendant and related to guilt or punishment. However, the justices have left it largely to states to work out the details.
In Ohio, the material disclosed by prosecutors to defendants during and before a trial is regulated a 34-year-old criminal rule. The rule gives a list of specifics including the defendant`s statements and any test results the state might use at trial, such as DNA or fingerprint analysis or psychological evaluations. Prosecutors also must disclose any plea deals.
Defense lawyers see witnesses` statements to police only if a judge spots inaccuracies in the testimony given by a witness at trial. In all other cases, the state must identify and surrender all exculpatory evidence, but Ohio prosecutors decide what is exculpatory and what is not.
Other states rules` dictate that prosecutors must turn over almost everything the defense requests, whether the state planned to use it at trial or not. The defense then must find anything exculpatory.
According to a reform group called the Justice Project, Michigan, Pennsylvania, Illinois, California, Colorado, New Jersey and Florida have “full and free” discovery, entitling defendants to everything the state provides – police reports, witness statements and other relevant books, papers and records.