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Trial policy change slated


Criticized for fumbling cases and letting accused killers walk free because evidence was improperly withheld, Baltimore prosecutors plan to announce today changes in the way they provide information to defense lawyers.

"This is something we've been grappling with for quite a long time," said State's Attorney Patricia C. Jessamy. "It's taken us a while to come up with something everyone in the office can live with."

State prosecutors are moving from a system in which they copy evidence and turn it over to defense lawyers - as they are required to do by law - to an "open file" system.

Under the policy taking effect March 1, prosecutors will still copy and hand over evidence. But defense lawyers also will be able to go to the courthouse before trial and examine almost all of the evidence prosecutors have in their files. Exceptions are narrowly defined and will include protection for confidential witnesses.

"This policy goes beyond the state's requirements," Jessamy said.

Criminal defense lawyer Kenneth W. Ravenell said he "can't wait" to examine the state's files. He said he believes key evidence was recently withheld from him in a murder case and that he found out about it through a detective's testimony during pretrial motions.

"It's about time Baltimore comes into the 21st century and in line with most other prosecutors around the state," Ravenell said. "This is what we have long advocated."

Other Maryland counties that have an "open file" system include Baltimore, Anne Arundel, Talbot and Prince George's, though their interpretations of "open" vary.

Evidence rules - called discovery - require prosecutors to hand over any material relating to the guilt or innocence of a defendant, based on a 1963 U.S. Supreme Court ruling.

Because the relevance of information can be subjective, problems arise in the interpretation of the ruling.

"Reasonable people can vehemently disagree whether certain information should or should not be disclosed," said Lawrence C. Doan, a senior city prosecutor in charge of training. "It is an amorphous beast."

The issue is a touchy one for city prosecutors and police, who have lost or undermined cases against more than a dozen felony defendants since 1997 because of problems involving withheld evidence.

In some cases, police failed to turn over evidence to prosecutors; in other cases, prosecutors had the information and did not give it to defense attorneys. Sometimes they did not know they needed to, other times documents were misplaced.

The "open file" system will not solve all problems, prosecutors say. But it is expected to cut back on the introduction of unexpected evidence during trials, which could cause a case to be dismissed or retried.

This way, if a defense lawyer sees some information in the file and wants to examine it further, prosecutors will turn it over or take the matter to a judge.

"It will be ironed out before a trial as opposed to during or after," Doan said.

The Circuit Court established a discovery court in 1999, run by Judge John N. Prevas, which settles evidence disputes before they get to trial.

Prevas praised the state's attorney's plan, though he said he expects his caseload - now about three discovery issues a week - to double once the new rules are implemented.

He called the discovery court "cutting edge" because it aims to resolve problems before trials begin.

"It cuts down on the friction trial judges have to address," Prevas said. "One of the most stressful parts of a trial is the prosecutor and defense attorney whining at each other about evidence and surprises."

Under the new system, prosecutors will give lawyers a form letter inviting them to the courthouse to examine the file.

"We hope they take us up on the invitation," said Stephanie Royster, policy analyst and an assistant state's attorney.

Scott Greenfield, a member of the National Association of Criminal Defense Lawyers and vice president of the New York chapter, said discovery is a problem across the country and requires the "good faith" of prosecutors to comply with the rules.

"There's a million flaws in the system. Prosecutors can deliberately create problems if they want. They can bury documents in an avalanche of paperwork or destroy paperwork to conceal the truth."

He said the term "open file" is misleading, because some documents are not available for review, such as witness information, documentation of "unrelated" continuing investigations, attorneys' private notes and anything else prosecutors believe to be confidential.

"'Open file' is one of those terms that makes you feel warm and fuzzy and means nothing," Greenfield said. "Prosecutors are still concealing information they think is confidential."

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