Commonwealth's attorney candidates disagree on open-file policy

Commonwealth’s attorneys for Pittsylvania, Halifax, Campbell, Bedford and Henry counties and in the city of Martinsville have moved toward open file discovery, a practice in which they share the entire case file or a majority of it with defense attorneys, sometimes omitting sensitive information about witnesses and their own notes about the case.

The practice also has come up in the race for Danville commonwealth’s attorney, with some candidates for and against it. The Danville commonwealth’s attorney office does not practice open file discovery.

Virginia Supreme Court rule 3A:11 sets the floor for which evidence the prosecution is required to share during discovery, a pretrial procedure that allows the defense to request certain documents from the prosecution.

The rule states that defendants are entitled to exculpatory evidence, which is evidence that indicates their innocence.

That evidence includes the defendant’s statements to police and written reports like autopsies; ballistic tests; fingerprint and handwriting analyses; blood, urine and breath tests, according to the rule. The defense also is entitled to written reports of physical or mental examinations of the accused or the victim done for the case.

Rule 3A:11 applies to prosecution for a felony in circuit court or any misdemeanor brought by direct indictment.

The prosecution is not required by the rule to share inculpatory evidence, which is evidence that indicates a person’s guilt, like witness statements and police reports.

Halifax County has used open file discovery since 2004.

“We feel like it’s the most fair way to try cases,” said Kim White, commonwealth’s attorney of Halifax County. “And we have found that by disclosing the evidence that we have against the defendant, we often get guilty pleas. It’s not about who has an advantage, it’s about making sure justice is done.”

White said the open file policy protects her office from appeals that could reverse the case.

Prosecutors go through the case file in certain crimes to protect specific information before giving it to the defense, she said. They do that for crimes like child abuse, sexual assault and drug cases, she added.

“We make provisions to protect the identity and location of witnesses when the case warrants,” White said.

Joan Ziglar, the commonwealth’s attorney for Martinsville, said her office has used a modified form of open file discovery since 1998.

She said that she’ll copy and send the documents required by the supreme court rule to the defense attorneys and allow them to come to her office and look at the rest of the case file, if they want.

“Very few defense attorneys take advantage of it,” she said.

Her office withholds a witness’ personal information when needed.

She said open file discovery gives defense attorneys incriminating evidence, along with the mandatory documents that indicates the defendant’s innocence.

“When I was a defense attorney, there were many times when the defendant would mislead me about the case,” Ziglar said. “His version of the truth may change after you confront him with what the police file says and what all the witnesses say.”

Neil Vener, the commonwealth’s attorney in Campbell County, said his office has used open file discovery for the past 10 or 15 years.

“You’re required by court and ethical rules to give the defense certain items,” he said. “Until trial, in my view, you don’t necessarily know what is or isn’t going to be exculpatory.”

He said the practice in Campbell County doesn’t lead to more plea bargains and saves time lost to pretrial discovery arguments between the prosecution and defense.

Ziglar, Vener and other commonwealth’s attorneys said that the use of open file discovery is a local issue that should be tailored to each jurisdiction.

Danville’s public defender, Joseph Schenk, said open file discovery allows for a more candid conversation between defendants and their attorneys and leads to a more informed decision about pleading guilty or going to trial.

“Ultimately, I think it can be a benefit,” he said. “But I don’t feel hindered without it.”

What they said

Positions of candidates for Danville commonwealth’s attorney (from Tuesday’s address to the local Republican Party)

Michael Newman: against open file discovery.

“I believe the Supreme Court rule is fair. We are just following the law. The defendant is presumed innocent, but the entire system is tilted to the defendant to begin with.”

Claudette Robertson: for open file discovery.

“We are not, as prosecutors, in the business of hiding facts. Open file discovery is fair.”

Jim Martin: determine on a case-by-case basis whether to use open file discovery.

“I would not give open file discovery unless the defendant has told us what his version of the facts are. Why should we tell him everything in our file if the first thing he said to the officer is, ‘I want a lawyer?’”

• Contact Tomsic at mtomsic@registerbee.com or (434) 791-7993.