Public may comment on open discovery proposals

LISBON - The issue of more open sharing of information in criminal cases apparently remains a topic of disagreement between a local judge and the Columbiana County prosecuting attorney.

Judge C. Ashley Pike of Common Pleas Court and Prosecutor Robert Herron offered opposing opinions recently when asked about proposed rule changes being recommended by the Supreme Court Commission on the Rules of Practice and Procedure.

The Supreme Court of Ohio is accepting public comment on the amendments until Nov. 18. The court can review and file the amendments with the legislature before May 1, with the changes not to take effect until July 1.

According to information from the Supreme Court, the new rules call for more open discovery in criminal cases, giving defense attorneys access to materials that wouldn't be disclosed under the current rules.

Discovery is the process used to reveal the evidence and expected witnesses in a criminal case to the other side, with most of the sharing burden on the prosecution.

Herron said he's not in favor of the changes, but Pike said he's supportive of what's being done. He explained defense attorneys will have fuller access to witness statements, background materials and evidentiary items, but there will be built-in protections in some situations where a witness could be at risk for retribution. He also said the process will be reciprocal, meaning defense attorneys will have to show their hand as well.

"It discourages gamesmanship and promotes a trial as a search for truth," Pike said.

He had been promoting changes to the local rules to open up the discovery process, with the issue coming to the forefront during a murder trial earlier this year which resulted in some friction among the judge, Herron and police agencies.

Pike said the proposed rule changes at the state level are only formalizing what's already been done in other counties, but hasn't been the practice in Columbiana County.

"From my standpoint, the prosecuting attorney organized opposition to what I was trying to do," he said, adding once he found out what the Supreme Court was doing, there was no need for him to continue with local rules.

"We're here to treat everyone fairly," he said.

Herron said the new rules aren't the solution and will only make gamesmanship worse. He explained that the proposals are the result of the state associations for prosecuting attorneys and defense attorneys coming to an agreement and offering a proposal to the Supreme Court. He said prosecuting attorneys were told open discovery was coming and if they wanted their concerns addressed, they needed to come to the table.

The proposal does offer some protections for witnesses, but he said it's overbroad.

"I think it suggests that the process to date has been unfair, and it hasn't been," he said.

He said previously that discovery was one-sided, and he said it will remain one-sided with the new rules.

"Discovery isn't reciprocal - we can call it reciprocal, but unless it's enforced, it will be one-sided. The new rule provides for reciprocity, but so does the old rule," Herron said.

He claimed he could fill a dump truck with what his office has provided over the years and a briefcase with what he's received in return from defense attorneys. He also said the new rules will impose burdens on police departments, with investigators required to provide everything they do to the defense.

Herron said he expressed his opinion about the proposals at state association meetings, but he won't be submitting personal comment.

The text of the proposed changes can be seen on the Supreme Court Web site at www.supremecourtofohio.gov. Comments should be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 S. Front St., Seventh Floor, Columbus, Ohio 43215 or j.cline@sc.ohio.gov.

mgreier@salemnews.net