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Open Discovery Discussion

Posted on September 22, 2009 at 1:12 PM

In 2007, Ohio Rule 16 was not yet revised to mandate that prosecutors turn over all evidence against (and for) the defendent when his/her attorney requested discovery in a criminal case.  That means, for a civil case, such as a credit card company suing for non-payment, or a fender-bender car accident, you were entitled to full discovery and you'd know if there was an eye-witness that had come forward to tell the prosecutor you weren't even there in the first place.  But woe to the person who was up for the death penalty, such as my husband, accused of murder, felonious assault, and a number of other charges falling in this category because legally it was not required of a prosecutor to let known the fact an eye witness might have exoneration information about you!

 

In the event that someone is not familiar with the 2008 article in the Plain Dealer (largest newspaper in Ohio) let me post some memorable quotes here now:

 

"This month, a federal ap peals court overturned yet another death-penalty sentence in a case tried in Cuyahoga County because prosecutors had hidden evidence the defense should have had" (Gaylord, 2008).

 

"Reginald Jells has languished on death row for 20 years while this miscarriage of justice persisted" (Gaylord, 2008).

 

"Consider Carmen Marino - a former star prosecutor (in Cuyahoga County) criticized for repeated prosecutorial misconduct, including failing to disclose exculpatory evidence" (Gaylord, 2008).

 

Maybe this is okay, though.  I mean after all, as I said in the first journal, a "fair trial" and "due process" is served so on appeal, which is his right, he'll be found innocent and all's well with the world again.  Consider the fact that Mr. Jells spent 20 years in prison anticipating being put to death for a crime he did not commit.  20 years. 

 

Maybe it's not so okay, is it?

 

I helped get a few signatures for the lobby to push the Supreme Court to vote favorably for Full Discovery; while most defense lawyers were obviously onboard with it, the Cuyahoga County prosecutor's office protested (other prosecutors were accepting of it). On April 30, 2009,  "After decades of passionate debate, prosecutors and defense lawyers throughout the state have joined forces in crafting a proposal for sharing evidence in criminal trials" (Atassi, 2009).  Except in cases where it would potentially endanger a witness, the defense attorney is now be allowed to see everything, make photocopies and not be forced to speed write as a prosecutor reads select passages or just outright doesn't offer the excuplatory evidence.

 

It makes me wonder about two missing blood tests allegedly not ordered.  It's altogether possible since everyone seemed to be working under the conclusion that their assumption was based in scientific fact at Rainbow Babies that my daughter was the victim of abuse, namely "Shaken Infant Syndrome" as was the diagnosis littered throughout the medical records.  But there are other things my husband's defense team never gave me, indicating to me they didn't have them.  Was it their error?  Did they just not realize to get the information or is it that it was never offered?  Rumors tell of DNA evidence telling where my daughter fell, of DNA not found on the coffee table my husband fell on earlier in the day proving my daughter was not involved with it, and a few other items.  Why weren't the lab results included with the defense attorney's copies?  My belief is they did not have it. 

 

On the other hand, police are allowed to lie to an accused during interrogation.  Oh yes, they are!  Surprising isn't it?  They can lie like a rug and it's all perfectly legal.   So maybe it never really existed to begin with (like the standard blood tests allegedly not ordered)...right?

 

I asked for things like that about a month ago and was told the prosecutor's office would have been turned over anything like that.  No word about what existed only that the prosecutor's office had it and I'd have to ask them.  After all, the wonderfully sympathetic people at the prosecutor's office would surely be willing to hand over their evidence to me if I asked them nicely and said "pretty please".  Lol...

 

But what does it matter in the long run?  Justice isn't about the truth necessarily.  It's just about whatever can be convinced to a jury.  Silly me, looking for the truth again.  After all, it wasn't their daughter, husband and family.

 

 

 

 

References:

 

Atassi, L. (2009, May 2).  Ohio prosecutors, defense lawyers to draft proposal to share evidence in criminal trials.  The Plain Dealer.  Retrieved from http://www.cleveland.com/news/plaindealer/index.ssf?/base/cuyahoga/124125327775460.xml&coll=2

 

Gaylord, B. (2008, August 26).  Ohio justice should be blind; defendants should be able to see -. The Plain Dealer, p.

Categories: Problems in Justice System

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