A New Day in Ohio's Criminal Justice System
The following article was authored by Ian Friedman and first appeared in the November/December 2010 issue of Ohio Lawyer, Vol. 24, No. 6. It is being republished here with permission.
On July 1, 2010, the historic culmination of an unprecedented cooperation between prosecutors and criminal defense lawyers paved the way for Ohio Criminal Rule 16- open discovery in Ohio.
Envision 10 seasoned lawyers sitting around several joined tables in the meeting area of a downtown social club. It was close to 9 p.m., and they had all been in that small room for the better part of the day. Half represent the voters of 88 counties, and the other half represent those accused of wrong doing. To most of them, it was very similar to the countless hard-fought negotiation sessions common in the criminal justice system. After all, the criminal justice system is one that is based on the adversarial model. This night was different, and there was no escaping that felling for anyone fortunate enough to participate in this meeting. For a few moments, there was not a prosecutor or a defense lawyer in that room. Rather, they were all lawyers basking in the feelings felt a long time ago in an entirely different set of circumstances. This feeling was reminiscent of the wonderful feeling that each had the day just after law school when they walked across the commencement stage to receive their diplomas. That was the day when there was great optimism, idealism and naivety. Over the years, the reality of the criminal justice system, with its struggles and difficulties, had contributed to their belief systems, now more pessimistic and cautious. It felt good to relive earlier days of trust and pure accomplishment.
That evening - April 30, 2009 - was particularly momentous. That was the culmination of years of effort and dialogue between the two groups. On one side of the table were the representatives of the Ohio Association of Criminal Lawyers. Although both groups had sparred for years over countless issues, this night there was consensus. To ensure that a resolution had actually been reached, one lawyer, as if polling a jury, asked, "Do we have open discovery?" One by one, each lawyer proudly explained that they did. Thereafter, prosecutors and defense lawyers embraced and were genuinely proud to be surrounded by only colleagues. The landscape for the criminal justice system as we knew it had changed forever.
The beginning
The former rule guiding discovery in criminal cases went into effect July 1, 1974. Since then, battles were routinely waged across Ohio that revolved around whether all evidence necessary to afford a defendant a fair trial had been shared. This question had been the subject of thousands of pleadings, pre-trials, hearings, and post-conviction measures throughout the years. Consequently, lawyers operating within the criminal justice system had been conditioned to be skeptical of their opposition even in the simplest matters. Ripples could be felt throughout the community as it took exorbitant sums of money to turn the slow wheels of justice. It was difficult to have confidence in a system that began trials without the defense lawyers having yet laid eyes on witness statements or prosecutors waiting to respond at any moment to the next maneuver used by the defense lawyer attempting to avoid what had become known as "trial by ambush." There are several words, such as "just" and "fair," that should describe any system of laws. Unfortunately, for more than 35 years, the only word that was truly accurate was "surprise."
Drive toward reform
This most recent push toward broadening the scope of evidentiary exchange in criminal cases was not the first. To the contrary, there were many that preceded it. Defense, lawyers, prosecutors and judges had attempted to reach agreement before. Unable, proposals were forwarded by defense groups to the Supreme Court of Ohio and the Ohio General Assembly with the hope that the time for change was apparent to all. Time and again, such proposals were met with great resistance and ultimately fell short. What was clear by the documented attempts of the past was that this incredibly important issue had always been confined only to prosecutors and defense lawyers. Those citizens who had never been touched by the criminal justice system rightfully had no interest. To finally bring change, the debates had to be on a grander scale. People needed to know that they were entitled to police reports if they were involved in minor automobile accident, but not if they were in jeopardy of losing life and liberty if accused of a crime. The larger civil bar associations had to join proponents of change. The public needed to be interested in an otherwise foreign and remote system. Only then could one have any hope for a different outcome than in decades past.
The basics had to be visited and analyzed before the first step could even be taken. After all, the majority of citizens were unfamiliar with Rule 16 or the meaning of "discovery." Recalling the oft-quoted advice of Benjamin Franklin that "one should never argue with a man who buys his ink by the barrel, "It was clear that only the print media could sufficiently carry necessary information to the public. To trigger such interest, an award-winning columnist in Ohio's largest newspaper was invited to a seminar hosted by the Ohio Association of Criminal Lawyers. There, this journalist heard the frightening true story of what came to be known as the "Duke Lacrosse Case." One of the defense lawyers who helped to uncover evidence that was withheld by an unscrupulous prosecutor presented the details of the case. He concluded his presentation by declaring that it was only because of complete open discovery that the three young men were exonerated. On April 20, 2008, the Cleveland Plain Dealer published an article written by the attendee, Regina Brett titled 'Ohio justice system hammered by lack of transparency." Momentum would only gain from there.
This was a massive effort launched across Ohio. Detailing the entire strategy and actual steps taken is not practical in one article. To truly understand the magnitude of this movement, it is imperative to know that more than 10,000 people signed petitions calling for reform. Bar associations and legal associations representing countless lawyers from across the United States pledged their support by submitting signed resolutions calling for open discovery. There was not a week that passed that the topic was not discussed in print or some other mass medium. Thousands of man hours were spent compiling data and studies illustrating the need for the criminal justice system to evolve. The time for the sit down had come.
The first meetings
The first gatherings of prosecutors and defense lawyers felt more like the heated disputes at sidebar when one party is lodging an allegation against the other. Immediately following introductions at the first meeting was an inquiry as to whether anyone was surreptitiously recorded the proceedings. Fearful that the meetings would yield little more than another annual organizational report, there was amble discussion as to whether the meetings would be recorded by a stenographer. Ultimately, it was decided that all meetings would not be recorded. If this monumental task had any chance at success, there would have to be complete reliance on good faith bargaining and honorable intentions. Although years of contest proved t challenge this faith periodically, both groups set their sights on a common objective. No one could dispute that bettering the system is always desired. Clearly, this would entail more listening than talking. To proceed, each side had to understand the other's position. Only after placing themselves in the other's shoes and capitulating that compromise was necessary could true progress ensue. The tenor of the meetings changed after becoming academic exercises aimed at improving "our" system.
Years gone by
During a task of this proportion, one cannot expect that there would not be obstacles. Indeed, there were. Debate spanned from larger theoretical positions to placement of grammatical symbols. Monthly meetings were accompanied by more frequent teleconferences and countless emails. Fortunately, this extended lapse in time permitted the careful scrutiny of what may have been seen as an experiment. Obviously, much of the work was premised on speculation, which proved difficult at times. Contemporaneous with the statewide effort was a push in Cuyahoga County for the passage of Local Rule 23.1, which required the state of Ohio to practice open discovery. Now, Ohio's largest county was being watched to determine if greater disclosure would lead to chaos. It became apparent soon after the discovery practice in Cuyahoga County was implemented that more benefit than harm was yielded. Local prosecutors and defense lawyers alike praised the new rule, finding the interests of justice better served.
With speculation gone
Ohio's largest county worked efficiently. Time, cost and debate over pre-trial disclosure were greatly reduced. Yet prosecutors from across the state tool different views of the Cuyahoga County model. Not everyone was fully convinced that similar steps would be appropriate in more rural counties. Moreover, converting the discovery process to electronic form, as in Cuyahoga County, was expensive, and therefore, out of the reach of some smaller jurisdictions. While there now seemed to be a desire by all participants of the working group to reach a consensus, the form and substance of the rule remained the subject of numerous additional debates.
Looking back, there were three major hurdles that needed to be cleared. First, the prosecutors wanted the defense to have a reciprocal obligation to provide broader discovery. Second, they needed to retain discretion in sharing information that may jeopardize the safety of parties and ongoing investigations. Third, great scrutiny to the disclosure process needed to be afforded cases involving sexual allegations against children. Likely unexpected, the defense group agreed that to reduce all surprise in the criminal process, they too, should be required to provide evidence intended to be introduced at trial to prosecutors. This was the first major deviation from traditional practices. To allow for prosecutorial discretion in certain instances, a three-tier system of disclosure was adopted. It is fully expected that full disclosure will be provided in more than 90 percent of all criminal cases. In a small portion of cases though, the information may be declared "For Counsel Only." This prohibits the lawyer from giving the material to their client. They are not restricted from sharing the contents with them however. All agents and representatives of defense counsel are also entitled to possess the evidence. Finally, the third-tier was labeled as "nondisclosure," meaning that the state could withhold some or all of the evidence in a very finite number of cases. Examples of nondisclosure may be seen in cases where victims are being threatened, an on-going law enforcement investigation will be jeopardized or where the case involves a sex crime allegation involving a minor. Based on the wisdom of the entire group, this would be an extremely small number of cases. Defense counsel and their experts could still possess the material, but would be strictly banned from any further dissemination subject to a protective order and the Rules of Professional Conduct. With the agreed upon provisions, neither party to the criminal litigation will ever have to endure great surprise at trial.
Polling the panel
Pressure from both groups continued, as did media exposure. The groups continued to labor over points large and small that needed to be included in or excluded from the new rule. Optimism was still immediately followed by doubt. Finally, at a late night meeting in July 2009, there was a different feeling in the air. The temp picked up, and there was a feeling that we were almost there. Final agreement on a relatively small point brought silence and pause to the room. Although knowing history had been made, the silence seemed to linger. No one had scripted this part of the process. Then just as one would do after learning of an important verdict, one member asked, "Do we have open discovery?" One by one, each lawyer declared, "Yes we do." When the declarations concluded, veteran lawyers who had battled for years just stood. It is hard to put into words what was felt at that moment. Words such as accomplishment, monumental, joyous, surreal and historical come to mind.
A new day
On July 1, 2010, new Ohio Criminal Rule 16 revolutionized the way criminal law is practiced in Ohio. Gamesmanship is gone. The benefits are countless, but some that have been immediately felt include the following: There will be no more guessing what witnesses will testify to from the stand. Lawyers will know when advising their client to take a plea is appropriate. Only matters that need to be tried will proceed to trial. Costs incurred as a result of unnecessary independent investigation by all parties will be sharply reduced. Wrongful convictions will decline while deserved convictions will increase. Witnesses and victims will be protected. Post-conviction review based on alleged discovery violations will be minimized. In essence, people can have restored faith in a system that now works better.
Thank you
Thank you to the countless attorneys, judges, bar associations, researchers, and organizations that stood in support of reforming Rule 16. This truly was a group effort. Thank you to the thousands of Ohio citizens that called for change. Thank you to former Supreme Court of Ohio Chief Justice Thomas Moyer. Affectionately known as "The Chief," he strived for this change for more than a decade. It was the Chief that sat with representatives of both groups to encourage a meeting of the minds. When one thinks of the work behind this rule they should think of our Chief.
To see the rule, go to www.ohiobar.org, click on Casemaker in the top navigation bar, click on State Bar Rules, click on browse, then click on Ohio Rules of Criminal Procedure.
