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Ohio Justice System Hampered By Lack Of Transparency

04-20-08 | The Plain Dealer | by: Regina Brett

I watched an autopsy on Friday. It wasn’t pretty.

The event was billed as the dissection of a criminal case.

Attorney James Cooney III came in from North Carolina to show local attorneys and law students how easy it is to convict innocent people of crimes, especially when the legal system does not require open file discovery.

In Ohio, prosecutors are not required to share police reports, witness statements and evidence with defense attorneys.

Cooney defended Reed Seligman in the famous Duke University lacrosse case. Two years ago, three Duke lacrosse players were accused of gang raping a stripper the men had hired to dance at a party. The case ended in the dismissal of rape charges and the conviction of the prosecutor.

The PowerPoint started with these words: Anatomy of a Hoax. It included a photo of an angry crowd holding a purple banner with bright yellow letters that read: CASTRATE.

Cooney told the story of how his client went from an honor roll student with nothing more than a parking ticket to his name to being called a gang rapist all over the country.

Because North Carolina has open discovery, Cooney was able to construct a timeline of facts for the evening that showed the rape never took place. He got access to evidence - 2,000 pages worth. It took cell phone records, dated ATM receipts, digital camera photos from the party and DNA records to clear the men.

The reason he got all the evidence? North Carolina has open discovery. The defense sees police reports and evidence before trial so they can prepare a case.

“We have open discovery, and it was still tough,” Cooney said. Open discovery goes both ways. Prosecutors also get information from defense attorneys. Plus jurors know no information is being withheld.

“It all comes down to making sure the system doesn’t misfire,” Cooney said.

He worries that Ohio’s system misfires, especially for the poor, for people of color and for others without financial resources.

In Ohio, some prosecutors oppose open discovery for fear that witnesses and victims could be put at risk. It’s a bogus argument. A prosecutor can apply to the court and ask a judge to redact specific information, Cooney said.

Local attorney Ian Friedman invited me to attend Cooney’s talk at the Ohio Association of Criminal Defense Lawyers and the Cleveland Marshall College of Law conference on trial tactics and defense strategies.

After watching the array of evidence presented, Friedman shook his head. What could have happened in the Duke case without open discovery “is what we deal with every day,” he said.

He did have good news to report. Members of the Ohio Supreme Court, the Ohio Prosecutors Association, the Ohio Association of Criminal Defense Lawyers and various bar associations will meet in May to talk about open discovery.

The debate isn’t over whether reform is needed, but over how far it should go.

“Everyone recognizes the need for reform,” Friedman said.

Especially attorneys like Cooney, who pointed out the moral of the Duke lacrosse case:

“Without open file discovery, without this transparency, injustices occur every single day,” Cooney said. “In Ohio, you are convicting innocent people.”

And it’s time we stopped.