Confronting the Secret Witness

At first blush, it seems reasonable.  After all, the defendant is accused to be a violent criminal, and what normal person wouldn’t be in fear of his life should this heinous miscreant know his name, maybe even his address.  Hey, he’s got children to protect.  Certainly, no rational society would subject his person and his family to harm for doing the right thing by testifying against a bad guy. 

And so prosecutors in Ohio, under a new state court rule, have refused to disclose the names of their witnesses, according to

This time, it’s the Butler County capital trial of Calvin McKelton, who is accused of killing his girlfriend, attorney Margaret Allen of Fairfield, and Germaine Evans Sr., a witness to her July 2008 slaying. McKelton is set to go on trial Oct. 4.

In the wake of a new state court rule, prosecutors have refused to disclose nearly a dozen witnesses in the case, saying the people and their families fear for their lives.

The legal wrangling comes to a head today – a week before McKelton’s trial – when Butler County Common Pleas Judge Andrew Nastoff decides whether any of the secret witness names and statements can be released to McKelton’s defense team.

The defense response: it puts them at a major disadvantage.  You think?

The flip side of the argument is that the defense cannot possibly prepare properly for trial in the absence of witness statements and identities.  The explanation of this statement could go on for quite a while, but it’s so obvious as to be unworthy of further discussion.  Obviously, without knowing the evidence against him, the defendant cannot prepare to address it.

Sandbagging the defense is a time honored tradition.  No one wants to fight on a level playing field, and the prosecution will take advantage of the opportunity if there’s any plausible basis to do so.  When it comes to withholding witness information, it not only gives the prosecution an extreme advantage, but is backed up by an extremely good rationale.  What kind of system would we have that subjects witnesses to fear for their lives?

What this ultimately comes down to is the conflict between a defendant’s rights and the protection of witnesses.  Assuming, arguendo, that the Cincinnati prosecutors aren’t fudging the claims, abusing the opportunity and only withholding witness information when there is a credible, legitimate reason to do so, the issue is squarely framed.  The problem, obviously, is that on one side, there are societally favored folks, witnesses for the prosecution, and on the other, disfavored defendants.  Anybody want to guess who would win by popular vote?

It strikes me that this implicates two constitutional rights, the confrontation of witnesses and the effective representation of counsel, though neither sufficiently directly to provide a bright line that this rule crosses.  On a technical level, the defendant will still have the opportunity to look into the eyes of the witness, thus granted his right of confrontation in the most simplistic sense. 

But that right incorporates the right to challenge the witness, to be capable of performing an effective cross-examination of the allegations.  Such a cross includes the ability to question motive, bias, credibility.  These aren’t things that can be figured out on the fly, but require investigation and collection of evidence.  Yes, there’s actual work that goes into extemporaneous cross-examination.

Similarly, this is what effective counsel does, both in preparation for trial and execution of her examination skills.  Take away the ability to prepare, including the ability to ponder how best to approach the testimony of a witness, an often neglected aspect of the trial lawyer’s work, and you’ve severely undermined her effectiveness.

The problem with reliance on effective assistance of counsel is that the bar is so absurdly low as to make it applicable only to the most incredibly incompetent effort, rather than to establish a right to excellence.  When a lawyer is alleged to have rendered ineffective assistance of counsel, the courts generally use her “vigorous” cross-examination, objections and argument to show why the claim is meritless.  Of course, that means nothing more than the lawyer asked a bunch of questions, made a few objections and argued about something during the course of the trial.  It speaks to quantity rather than quality.  It means nothing.

Ohio’s Criminal Rule 16 was designed to expand the amount of evidence defense attorneys could receive before trial – including some police reports, witness statements and other documents that were not available before.

Under the rule, prosecutors can withhold names of witnesses and their statements to protect the witnesses from harm, coercion or intimidation.

Ian Friedman, a Cleveland defense attorney who helped write the court rule, said he believes that prosecutors must turn over at least the names of the witnesses in advance of the trial. But prosecutors can withhold the witness statements until trial if Nastoff allows it.

The rule appears to have a give-back, at least in its conception, by providing for other information to be handed over when the witness information is withheld.  Of course, this smacks of disingenuousness, as this information which should now be turned over should have been turned over all along.  So they’re denying less than they used to deny, rather than providing all that they ought to be providing?  How political.  Remember, nobody wants a level playing field.

But the statement by Friedman, a criminal defense lawyer, that he believes that prosecutors must turn over (1) “at least the names,” and (2) “in advance of trial,” shows how things go awry. Friedman’s belief doesn’t mean the prosecutors agree, and “in advance of trial” doesn’t mean at a time when the defense can make effective use of the information. We all know the joys of a Jencks Act dump at the start of the luncheon recess when we’re to cross during nap time.

The witness statements and identities under Rule 16 are to be turned over at the start of jury selection, too late to make effective use of it by investigation and research, but early enough to pretend that it doesn’t interfere with a defendant’s constitutional rights.  But it does and it will.  Yet it’s highly unlikely that people will feel too badly about it, since the rule protects the good people from the bad people, and that’s what our criminal justice system is all about.

Just one more hurdle for the defense to jump.  At least it’s not like innocent people ever get convicted based on lying testimony, false memories or bad eyewitness identifications.

20 comments on “Confronting the Secret Witness

  1. Bad Lawyer

    Your observation that no one wants a level playing field is the cynical, but accurate secret to life in the law. The Rules of Civil Procedure, the Rules of Criminal Procedure, The Rules of Evidence were supposed to abolish sandbagging and Perry Mason-moments. Hah! Even in the mundane grind of my case management for an injury law firm, fairly honorable lawyers play games like withholding surveillance video, “dropping medicals,” at the last moment and refusing to turn over materials relied on by putative experts. Pure nastiness.

  2. Jeff Gamso

    The problem with our new discovery rules in Ohio – which on the whole are vastly better than the old discovery rules – is (not surprisingly) that they are subject to abuse. And (also not surprisingly) many prosecutors will abuse them.

    This is Butler County (just north of Cincinnati. Cincinnati is where the elected prosecutor, Joe Deters, has declared that they’re withholding witness information in all murder cases. (I wrote about this back in August.) Deters’ blanket policy clearly violates the rule which requires that information be turned over except where the particular facts and circumstances of the specific case lead to reasonable blah, blah, blah.

    The new discovery rules took effect July 1, so we’re in the very early stages of figuring out when and how the prosecutors will actually obey them and the courts will actually enforce them. Early word seems to be (another non-shocker), they’ll be honored more by some prosecutors than by others and are more likely to be honored in less serious cases.

  3. Eric L. Mayer

    I’d love to tell you that I am shocked, but I’m not. I’d like to tell you that I’ve never seen this type of behavior (rules or no rules), but I have.

    As with so many rules, sentencing guidelines, and element amendments, it seems that much policy is written by individuals without a grasp of the defense perspective. They fail to consider the importance of motions in limine, adequately preparing for cross examination, analysis of prior consistent/inconsistent statements, or our ability to discern possible bias against our clients. The excuse “they can always use vigorous cross examination” is nauseating.

    As if cross examination required no preparation. As you well know, the stuff you see in the courtroom is about 5% of what it takes to conduct a proper cross. The other 95% is preparation beforehand. Without the 95% preparation, the trial is very much a high-stakes game of chance for defense (with Vegas odds against us). Perhaps they are supremely confident in our skills as defense litigators. I doubt it.

    An idea: If they want to continue with the Ohio rule, that is fine. However, lets add an additional requirement. Before the beginning of the case, defense counsel and prosecutor engage in a best-of-3 rock/paper/scissors contest. If defense wins, then the accused goes free, and all charges are dropped. If not, then the trial moves forward. That way, the prosecutors can engage in an ulcer-inducing game of chance just as the defense will if the trial moves forward.

  4. SHG

    Thanks for clearing that up.  Butler County’s relative location to Cincinnati has always been a matter of some concern to outsiders. 

    The problem with having things really, really bad is that really bad begins to look good.

  5. SHG

    That was why I thought it significant that Friedman, a CDL, was one of the authors of the law.  We had a guy in there to pursue the defense agenda.  Maybe he was more concerned about working well with others and building consensus.

  6. Eric L. Mayer

    I forgot. Its all about courthouse workgroups, or so a guy named Hartley, R.D. told us once.

    Uh oh. I mentioned Hartley. I heard that each time Hartley and his article are mentioned, Mark Bennett suffers a small heart attack. Sorry about that.

  7. Jeff Gamso

    As I said, the new discovery rules are, overall, much better than the old ones (which were truly awful).

    To get them adopted (the culmination of something like 18 years of work) required at least grudging agreement from the Ohio Prosecuting Attorneys Association. And that meant compromise on some items on the wish list.

    I have real problems with that, but that’s probably why it’s for the best that I wasn’t invited to be on the negotiating team.

  8. John R. Cornely

    The prior version of Ohio Criminal Rule 16 allowed the Prosecutor to pull this B.S. the new rule is light years better. Don’t bag on Mr. Friedman as the new rule is far better than the old rule.

  9. Mark Bennett

    “And so prosecutors in Ohio, under a new state court rule, have refused to disclose the names of their witnesses.”


    If one thought of the witnesses as the State’s, one might miss the Compulsory-Process issue . . . .

  10. SHG

    “I promise, Ms. Lewis, that the one drug injection is much better than the three drug cocktail.  Now just relax…”

  11. John R. Cornely

    And a no drug injection is best of all. Sometimes we have to take baby steps to get where we want. Believe it or not prior to the rule change we didn’t get any witness statements.

  12. Jeff Gamso

    As John says, the new rule is dramatically better than what we had. Not perfect by any means, and certainly still subject to abuse (is there ever a way to prevent that?) but not just a baby step.

    As I said, I’m bad at compromise and wouldn’t have been a good member of the negotiating team, but as I also said, the rule actually had to be negotiated.

  13. Lee

    Yes, Mr. Bennett, you can subpoena anyone you want, just give us the names. Oh you don’t know their names? Sorry.

    This whole thing makes me glad to be where I am. While the DAs here have taken more and more liberties withholding discovery they do not dispute our entitlement to discovery 30 days prior to trial (it is pretty indisputable here as its explicitly stated in our discovery statute), so if you have a particularly intransigent prosecutor, you just set a trial date and then continue it when you have the names.

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