After years of resisting pressure from the media, the defense bar and judges, Cuyahoga County Prosecutor Bill Mason has crafted a cutting-edge system to share evidence with opposing lawyers—a practice known as open discovery.
Mason plans to roll out the Web-based case management system next week in compliance with an amendment to the local rules governing criminal prosecution, which judges voted overwhelmingly to adopt last year.
Under the new rules, prosecutors are required to share witness statements, police reports and other information previously denied to defense lawyers in the name of public safety.
Until now, prosecutors were required to turn over only evidence they felt might help the defendant. They argued that withholding some information helped protect witnesses and victims of crime from retaliation.
But judges said the practice was unfair to defendants who should know the evidence against them.
Mason’s office already shares discovery with defense lawyers on some low-level felony cases as part of a pilot program designed to move cases through the system faster. But the system has come under heavy criticism because lawyers could look at material only on computer terminals and were not provided paper copies.
Using the new discovery software, defense lawyers will be able to access information only on their cases and will be allowed to print or download documents using computers at their office or home.
The program, which was developed in-house by Mason’s tech staff, could be the first of its kind in the country, said Josh Marquis, a member of the board of directors of the National District Attorneys Association.
“The gold standard that courts are working towards are the paperless office, the e-court, where all filings will eventually be electronic,” Marquis said. “But when it comes to sharing discovery electronically, it’s fair to say that Mr. Mason is on the cutting edge.”
Here’s how the new Web-based program works:
Within 48 hours of arresting a suspect, police log in to the system and submit reports and witness statements. They must also fill out a threat assessment form, on which they evaluate the level of danger a defendant poses to witnesses or victims.
If prosecutors believe there is reason to redact information based on this form, they do so before sending the discovery packet electronically to defense lawyers. The information will be shared within seven days after the defendant’s first pretrial hearing.
The defense lawyer will be able to see if information has been withheld and can file a motion to challenge the redaction. A judge will decide if releasing the information puts witnesses at risk.
The software provides an organizational system for both prosecutors and defense lawyers to keep track of their cases and alerts them when new documents or record demands have been filed.
Despite his innovation, Mason still believes the new local rule is unconstitutional. He said he plans to file an appeal opposing it and expects the matter to end up in the Ohio Supreme Court. However, the prosecutor said Tuesday that he will keep an open mind as the software debuts and would be willing to rethink his position if his fears of retaliation against victims prove unfounded.
Mason said he hopes that prosecutors throughout the state, who are categorically opposed to open discovery, will also keep an open mind. Cuyahoga County’s new software could serve as a model for other jurisdictions, he said.
Ian Friedman, president of the Ohio Association of Criminal Defense Lawyers, said the uphill battle for open discovery statewide has left him cautiously optimistic about Mason’s new program.
“The best thing would be for everyone to set their emotions aside, to set ego aside and let this work for a year,” Friedman said. “If all parties are acting with pure intentions, we might see that in the end everyone will ask themselves why we didn’t do this sooner.”
